john c. calhoun, "on nullification and the force bill." u.s. senate, 15 february 1833 mr. president: at the last session of congress, it was avowed on all sides that the public debt, as to all practical purposes, was in fact paid, the small surplus remaining being nearly covered by the money in the treasury and the bonds for duties which had already accrued; but with the arrival of this event our last hope was doomed to be disappointed. after a long session of many months, and the most earnest effort on the part of south carolina and the other southern states to obtain relief, all that could be effected was a small reduction of such a character that, while it diminished the amount of burden, it distributed that burden more unequally than even the obnoxious act of 1828; reversing the principle adopted by the bill of 1816, of laying higher duties on the unprotected than the protected articles, by repealing almost entirely the duties laid upon the former, and imposing the burden almost entirely on the latter. it was thus that, instead of relief--instead of an equal distribution of burdens and benefits of the government, on the payment of the debt, as had been fondly anticipated--the duties were so arranged as to be, in fact, bounties on one side and taxation on the other; thus placing the two great sections of the country in direct conflict in reference to its fiscal action, and thereby letting in that flood of political corruption which threatens to sweep away our constitution and our liberty. this unequal and unjust arrangement was pronounced, both by the administration, through its proper organ, the secretary of the treasury, and by the opposition, to be a *permanent* adjustment; and it was thus that all hope of relief through the action of the general government terminated; and the crisis so long apprehended at length arrived, at which the state was compelled to choose between absolute acquiescence in a ruinous system of oppression, or a resort to her reserved powers--powers of which she alone was the rightful judge, and which only, in this momentous juncture, could save her. she determined on the latter. the consent of two-thirds of her legislature was necessary for the call of a convention, which was considered the only legitimate organ through which the people, in their sovereignty, could speak. after an arduous struggle the states-rights party succeeded; more than two-thirds of both branches of the legislature favorable to a convention were elected; a convention was called--the ordinance adopted. the convention was succeeded by a meeting of the legislature, when the laws to carry the ordinance into execution were enacted--all of which have been communicated by the president, have been referred to the committee on the judiciary, and this bill is the result of their labor. having now corrected some of the prominent misrepresentations as to the nature of this controversy, and given a rapid sketch of the movement of the state in reference to it, i will next proceed to notice some objections connected with the ordinance and the proceedings under it. the first and most prominent of these is directed against what is called the test oath, which an effort has been made to render odious. so far from deserving the denunciation that has been levelled against it, i view this provision of the ordinance as but the natural result of the doctrines entertained by the state, and the position which she occupies. the people of carolina believe that the union is a union of states, and not of individuals; that it was formed by the states, and that the citizens of the several states were bound to it through the acts of their several states; that each state ratified the constitution for itself, and that it was only by such ratification of a state that any obligation was imposed upon its citizens. thus believing, it is the opinion of the people of carolina that it belongs to the state which has imposed the obligation to declare, in the last resort, the extent of this obligation, as far as her citizens are concerned; and this upon the plain principles which exist in all analogous cases of compact between sovereign bodies. on this principle the people of the state, acting in their sovereign capacity in convention, precisely as they did in the adoption of their own and the federal constitution, have declared, by the ordinance, that the acts of congress which imposed duties under the authority to lay imposts, were acts not for revenue, as intended by the constitution, but for protection, and therefore null and void. the ordinance thus enacted by the people of the state themselves, acting as a sovereign community, is as obligatory on the citizens of the state as any portion of the constitution. in prescribing, then, the oath to obey the ordinance, no more was done than to prescribe an oath to obey the constitution. it is, in fact, but a particular oath of allegiance, and in every respect similar to that which is prescribed, under the constitution of the united states, to be administered to all the officers of the state and federal governments; and is no more deserving the harsh and bitter epithets which have been heaped upon it than that or any similar oath. it ought to be borne in mind that, according to the opinion which prevails in carolina, the right of resistance to the unconstitutional acts of congress belongs to the state, and not to her individual citizens; and that, though the latter may, in a mere question of *meum* and *tuum,* resist through the courts an unconstitutional encroachment upon their rights, yet the final stand against usurpation rests not with them, but with the state of which they are members; and such act of resistance by a state binds the conscience and allegiance of the citizen. but there appears to be a general misapprehension as to the extent to which the state has acted under this part of the ordinance. instead of sweeping every officer by a general proscription of the minority, as has been represented in debate, as far as my knowledge extends, not a single individual has been removed. the state has, in fact, acted with the greatest tenderness, all circumstances considered, toward citizens who differed from the majority; and, in that spirit, has directed the oath to be administered only in the case of some official act directed to be performed in which obedience to the ordinance is involved.... it is next objected that the enforcing acts have legislated the united states out of south carolina. i have already replied to this objection on another occasion, and will now but repeat what i then said: that they have been legislated out only to the extent that they had no right to enter. the constitution has admitted the jurisdiction of the united states within the limits of the several states only so far as the delegated powers authorize; beyond that they are intruders, and may rightfully be expelled; and that they have been efficiently expelled by the legislation of the state through her civil process, as has been acknowledged on all sides in the debate, is only a confirmation of the truth of the doctrine for which the majority in carolina have contended. the very point at issue between the two parties there is, whether nullification is a peaceful and an efficient remedy against an unconstitutional act of the general government, and may be asserted, as such, through the state tribunals. both parties agree that the acts against which it is directed are unconstitutional and oppressive. the controversy is only as to the means by which our citizens may be protected against the acknowledged encroachments on their rights. this being the point at issue between the parties, and the very object of the majority being an efficient protection of the citizens through the state tribunals, the measures adopted to enforce the ordinance, of course, received the most decisive character. we were not children, to act by halves. yet for acting thus efficiently the state is denounced, and this bill reported, to overrule, by military force, the civil tribunal and civil process of the state! sir, i consider this bill, and the arguments which have been urged on this floor in its support, as the most triumphant acknowledgment that nullification is peaceful and efficient, and so deeply intrenched in the principles of our system, that it cannot be assailed but by prostrating the constitution, and substituting the supremacy of military force in lieu of the supremacy of the laws. in fact, the advocates of this bill refute their own argument. they tell us that the ordinance is unconstitutional; that it infracts the constitution of south carolina, although, to me, the objection appears absurd, as it was adopted by the very authority which adopted the constitution itself. they also tell us that the supreme court is the appointed arbiter of all controversies between a state and the general government. why, then, do they not leave this controversy to that tribunal? why do they not confide to them the abrogation of the ordinance, and the laws made in pursuance of it, and the assertion of that supremacy which they claim for the laws of congress? the state stands pledged to resist no process of the court. why, then, confer on the president the extensive and unlimited powers provided in this bill? why authorize him to use military force to arrest the civil process of the state? but one answer can be given: that, in a contest between the state and the general government, if the resistance be limited on both sides to the civil process, the state, by its inherent sovereignty, standing upon its reserved powers, will prove too powerful in such a controversy, and must triumph over the federal government, sustained by its delegated and limited authority; and in this answer we have an acknowledgment of the truth of those great principles for which the state has so firmly and nobly contended.... notwithstanding all that has been said, i may say that neither the senator from delaware (mr. clayton), nor any other who has spoken on the same side, has directly and fairly met the great question at issue: is this a federal union? a union of states, as distinct from that of individuals? is the sovereignty in the several states, or in the american people in the aggregate? the very language which we are compelled to use when speaking of our political institutions affords proof conclusive as to its real character. the terms union, federal, united, all imply a combination of sovereignties, a confederation of states. they never apply to an association of individuals. who ever heard of the united state of new york, of massachusetts, or of virginia? who ever heard the term federal or union applied to the aggregation of individuals into one community? nor is the other point less clear--that the sovereignty is in the several states, and that our system is a union of twenty-four sovereign powers, under a constitutional compact, and not of a divided sovereignty between the states severally and the united states? in spite of all that has been said, i maintain that sovereignty is in its nature indivisible. it is the supreme power in a state, and we might just as well speak of half a square, or half of a triangle, as of half a sovereignty. it is a gross error to confound the *exercise* of sovereign powers with *sovereignty* itself, or the *delegation* of such powers with the *surrender* of them. a sovereign may delegate his powers to be exercised by as many agents as he may think proper, under such conditions and with such limitations as he may impose; but to surrender any portion of his sovereignty to another is to annihilate the whole. the senator from delaware (mr. clayton) calls this metaphysical reasoning, which he says he cannot comprehend. if by metaphysics he means that scholastic refinement which makes distinctions without difference, no one can hold it in more utter contempt than i do; but if, on the contrary, he means the power of analysis and combination--that power which reduces the most complex idea into its elements, which traces causes to their first principle, and, by the power of generalization and combination, unites the whole in one harmonious system--then, so far from deserving contempt, it is the highest attribute of the human mind. it is the power which raises man above the brute--which distinguishes his faculties from mere sagacity, which he holds in common with inferior animals. it is this power which has raised the astronomer from being a mere gazer at the stars to the high intellectual eminence of a newton or a laplace, and astronomy itself from a mere observation of isolated facts into that noble science which displays to our admiration the system of the universe. and shall this high power of the mind, which has effected such wonders when directed to the laws which control the material world, be forever prohibited, under a senseless cry of metaphysics, from being applied to the high purposes of political science and legislation? i hold them to be subject to laws as fixed as matter itself, and to be as fit a subject for the application of the highest intellectual power. denunciation may, indeed, fall upon the philosophical inquirer into these first principles, as it did upon galileo and bacon, when they first unfolded the great discoveries which have immortalized their names; but the time will come when truth will prevail in spite of prejudice and denunciation, and when politics and legislation will be considered as much a science as astronomy and chemistry. in connection with this part of the subject, i understood the senator from virginia (mr. rives) to say that sovereignty was divided, and that a portion remained with the states severally, and that the residue was vested in the union. by union, i suppose, the senator meant the united states. if such be his meaning--if he intended to affirm that the sovereignty was in the twenty-four states, in whatever light he may view them, our opinions will not disagree; but according to my conception, the whole sovereignty is in the several states, while the exercise of sovereign power is divided--a part being exercised under compact, through this general government, and the residue through the separate state governments. but if the senator from virginia (mr. rives) means to assert that the twenty-four states form but one community, with a single sovereign power as to the objects of the union, it will be but the revival of the old question, of whether the union is a union between states, as distinct communities, or a mere aggregate of the american people, as a mass of individuals; and in this light his opinions would lead directly to consolidation.... disguise it as you may, the controversy is one between power and liberty; and i tell the gentlemen who are opposed to me, that, as strong as may be the love of power on their side, the love of liberty is still stronger on ours. history furnishes many instances of similar struggles, where the love of liberty has prevailed against power under every disadvantage, and among them few more striking than that of our own revolution; where, as strong as was the parent country, and feeble as were the colonies, yet, under the impulse of liberty, and the blessing of god, they gloriously triumphed in the contest. there are, indeed, many striking analogies between that and the present controversy. they both originated substantially in the same cause--with this difference--in the present case, the power of taxation is converted into that of regulating industry; in the other the power of regulating industry, by the regulation of commerce, was attempted to be converted into the power of taxation. were i to trace the analogy further, we should find that the perversion of the taxing power, in the one case, has given precisely the same control to the northern section over the industry of the southern section of the union, which the power to regulate commerce gave to great britain over the industry of the colonies in the other; and that the very articles in which the colonies were permitted to have a free trade, and those in which the mother-country had a monopoly, are almost identically the same as those in which the southern states are permitted to have a free trade by the act of 1832, and in which the northern states have, by the same act, secured a monopoly. the only difference is in the means. in the former, the colonies were permitted to have a free trade with all countries south of cape finisterre, a cape in the northern part of spain; while north of that, the trade of the colonies was prohibited, except through the mother-country, by means of her commercial regulations. if we compare the products of the country north and south of cape finisterre, we shall find them almost identical with the list of last year. nor does the analogy terminate here. the very arguments resorted to at the commencement of the american revolution, and the measures adopted, and the motives assigned to bring on that contest (to enforce the law), are almost identically the same. but to return from this digression to the consideration of the bill. whatever difference of opinion may exist upon other points, there is one on which i should suppose there can be none; that this bill rests upon principles which, if carried out, will ride over state sovereignties, and that it will be idle for any advocates hereafter to talk of state rights. the senator from virginia (mr. rives) says that he is the advocate of state rights; but he must permit me to tell him that, although he may differ in premises from the other gentlemen with whom he acts on this occasion, yet, in supporting this bill, he obliterates every vestige of distinction between him and them, saving only that, professing the principles of '98, his example will be more pernicious than that of the most open and bitter opponent of the rights of the states. i will also add, what i am compelled to say, that i must consider him (mr. rives) as less consistent than our old opponents, whose conclusions were fairly drawn from their premises, while his premises ought to have led him to opposite conclusions. the gentleman has told us that the new-fangled doctrines, as he chooses to call them, have brought state rights into disrepute. i must tell him, in reply, that what he calls new-fangled are but the doctrines of '98; and that it is he (mr. rives), and others with him, who, professing these doctrines, have degraded them by explaining away their meaning and efficacy. he (mr. r.) has disclaimed, in behalf of virginia, the authorship of nullification. i will not dispute that point. if virginia chooses to throw away one of her brightest ornaments, she must not hereafter complain that it has become the property of another. but while i have, as a representatives of carolina, no right to complain of the disavowal of the senator from virginia, i must believe that he (mr. r.) has done his native state great injustice by declaring on this floor, that when she gravely resolved, in '98, that "in cases of deliberate and dangerous infractions of the constitution, the states, as parties to the compact, have the right, and are in duty bound, to interpose to arrest the progress of the evil, and to maintain within their respective limits the authorities, rights, and liberties appertaining to them," she meant no more than to proclaim the right to protest and to remonstrate. to suppose that, in putting forth so solemn a declaration, which she afterward sustained by so able and elaborate an argument, she meant no more than to assert what no one had ever denied, would be to suppose that the state had been guilty of the most egregious trifling that ever was exhibited on so solemn an occasion. constitution of the empire of japan, 1889 imperial oath sworn in the sanctuary in the imperial palace (tsuge-bumi) we, the successor to the prosperous throne of our predecessors, do humbly and solemnly swear to the imperial founder of our house and to our other imperial ancestors that, in pursuance of a great policy co-extensive with the heavens and with the earth, we shall maintain and secure from decline the ancient form of government. in consideration of the progressive tendency of the course of human affairs and in parallel with the advance of civilization, we deem it expedient, in order to give clearness and distinctness to the instructions bequeathed by the imperial founder of our house and by our other imperial ancestors, to establish fundamental laws formulated into express provisions of law, so that, on the one hand, our imperial posterity may possess an express guide for the course they are to follow, and that, on the other, our subjects shall thereby be enabled to enjoy a wider range of action in giving us their support, and that the observance of our laws shall continue to the remotest ages of time. we will thereby to give greater firmness to the stability of our country and to promote the welfare of all the people within the boundaries of our dominions; and we now establish the imperial house law and the constitution. these laws come to only an exposition of grand precepts for the conduct of the government, bequeathed by the imperial founder of our house and by our other imperial ancestors. that we have been so fortunate in our reign, in keeping with the tendency of the times, as to accomplish this work, we owe to the glorious spirits of the imperial founder of our house and of our other imperial ancestors. we now reverently make our prayer to them and to our illustrious father, and implore the help of their sacred spirits, and make to them solemn oath never at this time nor in the future to fail to be an example to our subjects in the observance of the laws hereby established. may the heavenly spirits witness this our solemn oath. imperial rescript on the promulgation of the constitution whereas we make it the joy and glory of our heart to behold the prosperity of our country, and the welfare of our subjects, we do hereby, in virtue of the supreme power we inherit from our imperial ancestors, promulgate the present immutable fundamental law, for the sake of our present subjects and their descendants. the imperial founder of our house and our other imperial ancestors, by the help and support of the forefathers of our subjects, laid the foundation of our empire upon a basis, which is to last forever. that this brilliant achievement embellishes the annals of our country, is due to the glorious virtues of our sacred imperial ancestors, and to the loyalty and bravery of our subjects, their love of their country and their public spirit. considering that our subjects are the descendants of the loyal and good subjects of our imperial ancestors, we doubt not but that our subjects will be guided by our views, and will sympathize with all our endeavors, and that, harmoniously cooperating together, they will share with us our hope of making manifest the glory of our country, both at home and abroad, and of securing forever the stability of the work bequeathed to us by our imperial ancestors. preamble [or edict] (joyu) having, by virtue of the glories of our ancestors, ascended the throne of a lineal succession unbroken for ages eternal; desiring to promote the welfare of, and to give development to the moral and intellectual faculties of our beloved subjects, the very same that have been favored with the benevolent care and affectionate vigilance of our ancestors; and hoping to maintain the prosperity of the state, in concert with our people and with their support, we hereby promulgate, in pursuance of our imperial rescript of the 12th day of the 10th month of the 14th year of meiji, a fundamental law of the state, to exhibit the principles, by which we are guided in our conduct, and to point out to what our descendants and our subjects and their descendants are forever to conform. the right of sovereignty of the state, we have inherited from our ancestors, and we shall bequeath them to our descendants. neither we nor they shall in the future fail to wield them, in accordance with the provisions of the constitution hereby granted. we now declare to respect and protect the security of the rights and of the property of our people, and to secure to them the complete enjoyment of the same, within the extent of the provisions of the present constitution and of the law. the imperial diet shall first be convoked for the 23rd year of meiji and the time of its opening shall be the date, when the present constitution comes into force. when in the future it may become necessary to amend any of the provisions of the present constitution, we or our successors shall assume the initiative right, and submit a project for the same to the imperial diet. the imperial diet shall pass its vote upon it, according to the conditions imposed by the present constitution, and in no otherwise shall our descendants or our subjects be permitted to attempt any alteration thereof. our ministers of state, on our behalf, shall be held responsible for the carrying out of the present constitution, and our present and future subjects shall forever assume the duty of allegiance to the present constitution. chapter i. the emperor article 1. the empire of japan shall be reigned over and governed by a line of emperors unbroken for ages eternal. article 2. the imperial throne shall be succeeded to by imperial male descendants, according to the provisions of the imperial house law. article 3. the emperor is sacred and inviolable. article 4. the emperor is the head of the empire, combining in himself the rights of sovereignty, and exercises them, according to the provisions of the present constitution. article 5. the emperor exercises the legislative power with the consent of the imperial diet. article 6. the emperor gives sanction to laws, and orders them to be promulgated and executed. article 7. the emperor convokes the imperial diet, opens, closes, and prorogues it, and dissolves the house of representatives. article 8. the emperor, in consequence of an urgent necessity to maintain public safety or to avert public calamities, issues, when the imperial diet is not sitting, imperial ordinances in the place of law. (2) such imperial ordinances are to be laid before the imperial diet at its next session, and when the diet does not approve the said ordinances, the government shall declare them to be invalid for the future. article 9. the emperor issues or causes to be issued, the ordinances necessary for the carrying out of the laws, or for the maintenance of the public peace and order, and for the promotion of the welfare of the subjects. but no ordinance shall in any way alter any of the existing laws. article 10. the emperor determines the organization of the different branches of the administration, and salaries of all civil and military officers, and appoints and dismisses the same. exceptions especially provided for in the present constitution or in other laws, shall be in accordance with the respective provisions (bearing thereon). article 11. the emperor has the supreme command of the army and navy. article 12. the emperor determines the organization and peace standing of the army and navy. article 13. the emperor declares war, makes peace, and concludes treaties. article 14. the emperor declares a state of siege. (2) the conditions and effects of a state of siege shall be determined by law. article 15. the emperor confers titles of nobility, rank, orders and other marks of honor. article 16. the emperor orders amnesty, pardon, commutation of punishments and rehabilitation. article 17. a regency shall be instituted in conformity with the provisions of the imperial house law. (2) the regent shall exercise the powers appertaining to the emperor in his name. chapter ii. rights and duties of subjects article 18. the conditions necessary for being a japanese subject shall be determined by law. article 19. japanese subjects may, according to qualifications determined in laws or ordinances, be appointed to civil or military or any other public offices equally. article 20. japanese subjects are amenable to service in the army or navy, according to the provisions of law. article 21. japanese subjects are amenable to the duty of paying taxes, according to the provisions of law. article 22. japanese subjects shall have the liberty of abode and of changing the same within the limits of the law. article 23. no japanese subject shall be arrested, detained, tried or punished, unless according to law. article 24. no japanese subject shall be deprived of his right of being tried by the judges determined by law. article 25. except in the cases provided for in the law, the house of no japanese subject shall be entered or searched without his consent. article 26. except in the cases mentioned in the law, the secrecy of the letters of every japanese subject shall remain inviolate. article 27. the right of property of every japanese subject shall remain inviolate. (2) measures necessary to be taken for the public benefit shall be any provided for by law. article 28. japanese subjects shall, within limits not prejudicial to peace and order, and not antagonistic to their duties as subjects, enjoy freedom of religious belief. article 29. japanese subjects shall, within the limits of law, enjoy the liberty of speech, writing, publication, public meetings and associations. article 30. japanese subjects may present petitions, by observing the proper forms of respect, and by complying with the rules specially provided for the same. article 31. the provisions contained in the present chapter shall not affect the exercises of the powers appertaining to the emperor, in times of war or in cases of a national emergency. article 32. each and every one of the provisions contained in the preceding articles of the present chapter, that are not in conflict with the laws or the rules and discipline of the army and navy, shall apply to the officers and men of the army and of the navy. chapter iii. the imperial diet article 33. the imperial diet shall consist of two houses, a house of peers and a house of representatives. article 34. the house of peers shall, in accordance with the ordinance concerning the house of peers, be composed of the members of the imperial family, of the orders of nobility, and of those who have been nominated thereto by the emperor. article 35. the house of representatives shall be composed of members elected by the people, according to the provisions of the law of election. article 36. no one can at one and the same time be a member of both houses. article 37. every law requires the consent of the imperial diet. article 38. both houses shall vote upon projects of law submitted to it by the government, and may respectively initiate projects of law. article 39. a bill, which has been rejected by either the one or the other of the two houses, shall not be brought in again during the same session. article 40. both houses can make representations to the government, as to laws or upon any other subject. when, however, such representations are not accepted, they cannot be made a second time during the same session. article 41. the imperial diet shall be convoked every year. article 42. a session of the imperial diet shall last during three months. in case of necessity, the duration of a session may be prolonged by the imperial order. article 43. when urgent necessity arises, an extraordinary session may be convoked in addition to the ordinary one. (2) the duration of an extraordinary session shall be determined by imperial order. article 44. the opening, closing, prolongation of session and prorogation of the imperial diet, shall be effected simultaneously for both houses. (2) in case the house of representatives has been ordered to dissolve, the house of peers shall at the same time be prorogued. article 45. when the house of representatives has been ordered to dissolve, members shall be caused by imperial order to be newly elected, and the new house shall be convoked within five months from the day of dissolution. article 46. no debate can be opened and no vote can be taken in either house of the imperial diet, unless not less than one-third of the whole number of members thereof is present. article 47. votes shall be taken in both houses by absolute majority. in the case of a tie vote, the president shall have the casting vote. article 48. the deliberations of both houses shall be held in public. the deliberations may, however, upon demand of the government or by resolution of the house, be held in secret sitting. article 49. both houses of the imperial diet may respectively present addresses to the emperor. article 50. both houses may receive petitions presented by subjects. article 51. both houses may enact, besides what is provided for in the present constitution and in the law of the houses, rules necessary for the management of their internal affairs. article 52. no member of either house shall be held responsible outside the respective houses, for any opinion uttered or for any vote given in the house. when, however, a member himself has given publicity to his opinions by public speech, by documents in print or in writing, or by any other similar means, he shall, in the matter, be amenable to the general law. article 53. the members of both houses shall, during the session, be free from arrest, unless with the consent of the house, except in cases of flagrant delicts, or of offenses connected with a state of internal commotion or with a foreign trouble. article 54. the ministers of state and the delegates of the government may, at any time, take seats and speak in either house. chapter iv. the ministers of state and the privy council article 55. the respective ministers of state shall give their advice to the emperor, and be responsible for it. (2) all laws, imperial ordinances, and imperial rescripts of whatever kind, that relate to the affairs of the state, require the countersignature of a minister of state. article 56. the privy councillors shall, in accordance with the provisions for the organization of the privy council, deliberate upon important matters of state when they have been consulted by the emperor. chapter v. the judicature article 57. the judicature shall be exercised by the courts of law according to law, in the name of the emperor. (2) the organization of the courts of law shall be determined by law. article 58. the judges shall be appointed from among those, who possess proper qualifications according to law. (2) no judge shall be deprived of his position, unless by way of criminal sentence or disciplinary punishment. (3) rules for disciplinary punishment shall be determined by law. article 59. trials and judgments of a court shall be conducted publicly. when, however, there exists any fear, that such publicity may be prejudicial to peace and order, or to the maintenance of public morality, the public trial may be suspended by provisions of law or by the decision of the court of law. article 60. all matters that fall within the competency of a special court, shall be specially provided for by law. article 61. no suit at law, which relates to rights alleged to have been infringed by the illegal measures of the administrative authorities, and which shall come within the competency of the court of administrative litigation specially established by law, shall be taken cognizance of by court of law. chapter vi. finance article 62. the imposition of a new tax or the modification of the rates (of an existing one) shall be determined by law. (2) however, all such administrative fees or other revenue having the nature of compensation shall not fall within the category of the above clause. (3) the raising of national loans and the contracting of other liabilities to the charge of the national treasury, except those that are provided in the budget, shall require the consent of the imperial diet. article 63. the taxes levied at present shall, in so far as they are not remodelled by a new law, be collected according to the old system. article 64. the expenditure and revenue of the state require the consent of the imperial diet by means of an annual budget. (2) any and all expenditures overpassing the appropriations set forth in the titles and paragraphs of the budget, or that are not provided for in the budget, shall subsequently require the approbation of the imperial diet. article 65. the budget shall be first laid before the house of representatives. article 66. the expenditures of the imperial house shall be defrayed every year out of the national treasury, according to the present fixed amount for the same, and shall not require the consent thereto of the imperial diet, except in case an increase thereof is found necessary. article 67. those already fixed expenditures based by the constitution upon the powers appertaining to the emperor, and such expenditures as may have arisen by the effect of law, or that appertain to the legal obligations of the government, shall be neither rejected nor reduced by the imperial diet, without the concurrence of the government. article 68. in order to meet special requirements, the government may ask the consent of the imperial diet to a certain amount as a continuing expenditure fund, for a previously fixed number of years. article 69. in order to supply deficiencies, which are unavoidable, in the budget, and to meet requirements unprovided for in the same, a reserve fund shall be provided in the budget. article 70. when the imperial diet cannot be convoked, owing to the external or internal condition of the country, in case of urgent need for the maintenance of public safety, the government may take all necessary financial measures, by means of an imperial ordinance. (2) in the case mentioned in the preceding clause, the matter shall be submitted to the imperial diet at its next session, and its approbation shall be obtained thereto. article 71. when the imperial diet has not voted on the budget, or when the budget has not been brought into actual existence, the government shall carry out the budget of the preceding year. article 72. the final account of the expenditures and revenues of the state shall be verified and confirmed by the board of audit, and it shall be submitted by the government to the imperial diet, together with the report of verification of the said board. (2) the organization and competency of the board of audit shall of determined by law separately. chapter vii. supplementary rules article 73. when it has become necessary in future to amend the provisions of the present constitution, a project to the effect shall be submitted to the imperial diet by imperial order. (2) in the above case, neither house can open the debate, unless not less than two-thirds of the whole number of members are present, and no amendment can be passed, unless a majority of not less than two-thirds of the members present is obtained. article 74. no modification of the imperial house law shall be required to be submitted to the deliberation of the imperial diet. (2) no provision of the present constitution can be modified by the imperial house law. article 75. no modification can be introduced into the constitution, or into the imperial house law, during the time of a regency. article 76. existing legal enactments, such as laws, regulations, ordinances, or by whatever names they may be called, shall, so far as they do not conflict with the present constitution, continue in force. (2) all existing contracts or orders, that entail obligations upon the government, and that are connected with expenditure, shall come within the scope of article 67. (the above is the semi-official translation, which appeared in h. ito, commentaries on the constitution of the empire of japan, trans. m. ito, 1889.) the constitution of japan, 1946 promulgated on november 3, 1946; put into effect on may 3, 1947. we, the japanese people, acting through our duly elected representatives in the national diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this constitution. government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people. this is a universal principle of mankind upon which this constitution is founded. we reject and revoke all constitutions, laws, ordinances, and rescripts in conflict herewith. we, the japanese people, desire peace for all time and are deeply conscious of the high ideals controlling human relationship, and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world. we desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth. we recognize that all peoples of the world have the right to live in peace, free from fear and want. we believe that no nation is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations. we, the japanese people, pledge our national honor to accomplish these high ideals and purposes with all our resources. chapter i. the emperor article 1. the emperor shall be the symbol of the state and of the unity of the people, deriving his position from the will of the people with whom resides sovereign power. article 2. the imperial throne shall be dynastic and succeeded to in accordance with the imperial house law passed by the diet. article 3. the advice and approval of the cabinet shall be required for all acts of the emperor in matters of state, and the cabinet shall be responsible therefor. article 4. the emperor shall perform only such acts in matters of state as are provided for in this constitution and he shall not have powers related to government (2) the emperor may delegate the performance of his acts in matters of state as may be provided by law. article 5. when, in accordance with the imperial house law, a regency is established, the regent shall perform his acts in matter of state in the emperor's name. in this case, paragraph one of the article will be applicable. article 6. the emperor shall appoint the prime minister as designated by the diet. (2) the emperor shall appoint the chief judge of the supreme court as designated by the cabinet. article 7. the emperor, with the advice and approval of the cabinet, shall perform the following acts in makers of state on behalf of the people: (i) promulgation of amendments of the constitution, laws, cabinet orders and treaties; (ii) convocation of the diet; (iii) dissolution of the house of representatives; (iv) proclamation of general election of members of the diet; (v) attestation of the appointment and dismissal of ministers of state and other officials as provided for by law, and of full powers and credentials of ambassadors and ministers; (vi) attestation of general and special amnesty, commutation of punishment, reprieve, and restoration of rights; (vii) awarding of honors; (viii) attestation of instruments of ratification and other diplomatic documents as provided for by law; (ix) receiving foreign ambassadors and ministers; (x) performance of ceremonial functions. article 8. no property can be given to, or received by, the imperial house, nor can any gifts be made therefrom, without the authorization of the diet. chapter ii. renunciation of war article 9. aspiring sincerely to an international peace based on justice and order, the japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a mean of settling international disputes. (2) in order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. the right of belligerency of the state will not be recognized. chapter iii. rights and duties of the people article 10. the conditions necessary for being a japanese national shall be determined by law. article 11. the people shall not be prevented from enjoying any of the fundamental human rights. these fundamental human rights guaranteed to the people by this constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights. article 12. the freedoms and rights guaranteed to the people by this constitution shall be maintained by the constant endeavor of the people, who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare. article 13. all of the people shall be respected as individuals. their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs. article 14. all of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin. (2) peers and peerage shall not be recognized. (3) no privilege shall accompany any award of honor, decoration or any distinction, nor shall any such award be valid beyond the lifetime of the individual who now holds or hereafter may receive it. article 15. the people have the inalienable right to choose their public officials and to dismiss them. (2) all public officials are servants of the whole community and not of any group thereof. (3) universal adult suffrage is guaranteed with regard to the election of public officials. (4) in all elections, secrecy of the ballot shall not be violated. a voter shall not be answerable, publicly or privately, for the choice he has made. article 16. every person shall have the right of peaceful petition for the redress of damage, for the removal of public officials, for the enactment, repeal or amendment of law, ordinances or regulations and for other matters, nor shall any person be in any way discriminated against sponsoring such a petition. article 17. every person may sue for redress as provided by law from the state or a public entity, in case he has suffered damage through illegal act of any public official. article 18. no person shall be held in bondage of any kind. involuntary servitude, except as punishment for crime, is prohibited. article 19. freedom of thought and conscience shall not be violated. article 20. freedom of religion is guaranteed to all. no religious organization shall receive any privileges from the state nor exercise any political authority. (2) no person shall be compelled to take part in any religious acts, celebration, rite or practice. (3) the state and its organs shall refrain from religious education or any other religious activity. article 21. freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed. (2) no censorship shall be maintained, nor shall the secrecy of any means of communication be violated. article 22. every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare. (2) freedom of all persons to move to a foreign country and to divest themselves of their nationality shall be inviolate. article 23. academic freedom is guaranteed. article 24. marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis. (2) with regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes. article 25. all people shall have the right to maintain the minimum standards of wholesome and cultured living. (2) in all spheres of life, the state shall use its endeavors for the promotion and extension of social welfare and security, and of public health. article 26. all people shall have the right to receive an equal education correspondent to their ability, as provided by law. (2) all people shall be obligated to have all boys and girls under their protection receive ordinary educations as provided for by law. such compulsory education shall be free. article 27. all people shall have the right and the obligation to work. (2) standards for wages, hours, rest and other working conditions shall be fixed by law. (3) children shall not be exploited. article 28. the right of workers to organize and to bargain and act collectively is guaranteed. article 29. the right to own or to hold property is inviolable. (2) property rights shall be defined by law, in conformity with the public welfare. (3) private property may be taken for public use upon just compensation therefor. article 30. the people shall be liable to taxations as provided by law. article 31. no person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law. article 32. no person shall be denied the right of access to the courts. article 33. no person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offense with which the person is charged, unless he is apprehended, the offense being committed. article 34. no person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel; nor shall he be detained without adequate cause; and upon demand of any person such cause must be immediately shown in open court in his presence and the presence of his counsel. article 35. the right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause and particularly describing the place to be searched and things to be seized, or except as provided by article 33. (2) each search or seizure shall be made upon separate warrant issued by a competent judicial officer. article 36. the infliction of torture by any public officer and cruel punishments are absolutely forbidden. article 39. in all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal. (2) he shall be permitted full opportunity to examine all witnesses, and he shall have the right of compulsory process for obtaining witnesses on his behalf at public expense. (3) at all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the state. article 38. no person shall be compelled to testify against himself. (2) confession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence. (3) no person shall be convicted or punished in cases where the only proof against him is his own confession. article 39. no person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy. article 40. any person, in case he is acquitted after he has been arrested or detained, may sue the state for redress as provided by law. chapter iv. the diet article 41. the diet shall be the highest organ of state power, and shall be the sole law-making organ of the state. article 42. the diet shall consist of two houses, namely the house of representatives and the house of councillors. article 43. both houses shall consist of elected members, representative of all the people. (2) the number of the members of each house shall be fixed by law. article 44. the qualifications of members of both houses and their electors shall be fixed by law. however, there shall be no discrimination because of race, creed, sex, social status, family origin, education, property or income. article 45. the term of office of members of the house of representatives shall be four years. however, the term shall be terminated before the full term is up in case the house of representatives is dissolved. article 46. the term of office of members of the house of councillors shall be six years, and election for half the members shall take place every three years. article 47. electoral districts, method of voting and other matters pertaining to the method of election of members of both houses shall be fixed by law. article 48. no person shall be permitted to be a member of both houses simultaneously. article 49. members of both houses shall receive appropriate annual payment from the national treasury in accordance with law. article 50. except in cases provided by law, members of both houses shall be exempt from apprehension while the diet is in session, and any members apprehended before the opening of the session shall be freed during the term of the session upon demand of the house. article 51. members of both houses shall not be held liable outside the house for speeches, debates or votes cast inside the house. article 52. an ordinary session of the diet shall be convoked once per year. article 53. the cabinet may determine to convoke extraordinary sessions of the diet. when a quarter or more of the total members of either house makes the demand, the cabinet must determine on such convocation. article 54. when the house of representatives is dissolved, there must be a general election of members of the house of representatives within forty (40) days from the date of dissolution, and the diet must be convoked within thirty (30) days from the date of the election. (2) when the house of representatives is dissolved, the house of councillors is closed at the same time. however, the cabinet may in time of national emergency convoke the house of councillors in emergency session. (3) measures taken at such session as mentioned in the proviso of the preceding paragraph shall be provisional and shall become null and void unless agreed to by the house of representatives within a period of ten (10) days after the opening of the next session of the diet. article 55. each house shall judge disputes related to qualifications of its members. however, in order to deny a seat to any member, it is necessary to pass a resolution by a majority of two-thirds or more of the members present. article 56. business cannot be transacted in either house unless one third or more of total membership is present. (2) all matters shall be decided, in each house, by a majority of those present, except as elsewhere provided in the constitution, and in case of a tie, the presiding officer shall decide the issue. article 57. deliberation in each house shall be public. however, a secret meeting may be held where a majority of two-thirds or more of those members present passes a resolution therefor. (2) each house shall keep a record of proceedings. this record shall be published and given general circulation, excepting such parts of proceedings of secret session as may be deemed to require secrecy. (3) upon demand of one-fifth or more of the members present, votes of the members on any matter shall be recorded in the minutes. article 58. each house shall select its own president and other officials. (2) each house shall establish its rules pertaining to meetings, proceedings and internal discipline, and may punish members for disorderly conduct. however, in order to expel a member, a majority of two-thirds or more of those members present must pass a resolution thereon. article 59. a bill becomes a law on passage by both houses, except as otherwise provided by the constitution. (2) a bill which is passed by the house of representatives, and upon which the house of councillors makes a decision different from that of the house of representatives, becomes a law when passed a second time by the house of representatives by a majority of two-thirds or more of the members present. (3) the provision of the preceding paragraph does not preclude the house of representatives from calling for the meeting of a joint committee of both houses, provided for by law. (4) failure by the house of councillors to take final action within sixty (60) days after receipt of a bill passed by the house of representatives, time in recess excepted, may be determined by the house of representatives to constitute a rejection of the said bill by the house of councillors. article 60. the budget must first be submitted to the house of representatives. (2) upon consideration of the budget, when the house of councillors makes a decision different from that of the house of representatives, and when no agreement can be reached even through a joint committee of both houses, provided for by law, or in the case of failure by the house of councillors to take final action within thirty (30) days, the period of recess excluded, after the receipt of the budget passed by the house of representatives, the decision of the house of representatives shall be the decision of the diet. article 61. the second paragraph of the preceding article applies also to the diet approval required for the conclusion of treaties. article 62. each house may conduct investigations in relation to government, and may demand the presence and testimony of witnesses, and the production of records. article 63. the prime minister and other ministers of state may, at any time, appear in either house for the purpose of speaking on bills, regardless of whether they are members of the house or not. they must appear when their presence is required in order to give answers or explanations. article 64. the diet shall set up an impeachment court from among the members of both houses for the purpose of trying judges against whom removal proceedings have been instituted. (2) matters relating to impeachment shall be provided by law. chapter v. the cabinet article 65. executive power shall be vested in the cabinet. article 66. the cabinet shall consist of the prime minister, who shall be its head, and other ministers of state, as provided for by law. (2) the prime minister and other minister of state must be civilians. (3) the cabinet, in the exercise of executive power, shall be collectively responsible to the diet. article 67. the prime minister shall be designated from among the members of the diet by a resolution of the diet. this designation shall precede all other business. (2) if the house of representatives and the house of councillors disagrees and if no agreement can be reached even through a joint committee of both houses, provided for by law, or the house of councillors fails to make designation within ten (10) days, exclusive of the period of recess, after the house of representatives has made designation, the decision of the house of representatives shall be the decision of the diet. article 68. the prime minister shall appoint the ministers of state. however, a majority of their number must be chosen from among the members of the diet. (2) the prime minister may remove the ministers of state as he chooses. article 69. if the house of representatives passes a non-confidence resolution, or rejects a confidence resolution, the cabinet shall resign en masse, unless the house of representatives is dissolved with ten (10) days. article 70. when there is a vacancy in the post of prime minister, or upon the first convocation of the diet after a general election of members of the house of representatives, the cabinet shall resign en masse. article 71. in the cases mentioned in the two preceding articles, the cabinet shall continue its functions until the time when a new prime minister is appointed. article 72. the prime minister, representing the cabinet, submits bills, reports on general national affairs and foreign relations to the diet and exercises control and supervision over various administrative branches. article 73. the cabinet, in addition to other general administrative functions, shall perform the following functions: (i) administer the law faithfully; conduct affairs of state; (ii) manage foreign affairs; (iii) conclude treaties. however, it shall obtain prior or, depending on circumstances, subsequent approval of the diet; (iv) administer the civil service, in accordance with standards established by law; (v) prepare the budget, and present it to the diet; (vi) enact cabinet orders in order to execute the provisions of this constitution and of the law. however, it cannot include penal provisions in such cabinet orders unless authorized by such law. (vii) decide on general amnesty, special amnesty, commutation of punishment, reprieve, and restoration of rights. article 74. all laws and cabinet orders shall be signed by the competent minister of state and countersigned by the prime minister. article 75. the ministers of state, during their tenure of office, shall not be subject to legal action without the consent of the prime minister. however, the right to take that action is not impaired hereby. chapter vi. judiciary article 76. the whole judicial power is vested in a supreme court and in such inferior courts as are established by law. (2) no extraordinary tribunal shall be established, nor shall any organ or agency of the executive be given final judicial power. (3) all judges shall be independent in the exercise of their conscience and shall be bound only by this constitution and the laws. article 77. the supreme court is vested with the rule-making power under which it determines the rules of procedure and of practice, and of matters relating to attorneys, the internal discipline of the courts and the administration of judicial affairs. (2) public procurators shall be subject to the rule-making power of the supreme court. (3) the supreme court may delegate the power to make rules for inferior courts to such courts. article 78. judges shall not be removed except by public impeachment unless judicially declared mentally or physically incompetent to perform official duties. no disciplinary action against judges shall be administered by any executive organ or agency. article 79. the supreme court shall consist of a chief judge and such number of judges as may be determined by law; all such judges excepting the chief judge shall be appointed by the cabinet. (2) the appointment of the judges of the supreme court shall be reviewed by the people at the first general election of members of the house of representatives following their appointment, and shall be reviewed again at the first general election of members of the house of representatives after a lapse of ten (10) years, and in the same manner thereafter. (3) in cases mentioned in the foregoing paragraph, when the majority of the voters favors the dismissal of a judge, he shall be dismissed. (4) matters pertaining to review shall be prescribed by law. (5) the judges of the supreme court shall of retired upon the attainment of the age as fixed by law. (6) all such judges shall receive, at regular stated intervals, adequate compensation which shall not be decreased during their terms of office. article 80. the judges of the inferior courts shall be appointed by the cabinet from a list of persons nominated by the supreme court. all such judges shall hold office for a term of ten (10) years with privilege of reappointment, provided that they shall be retired upon the attainment of the age as fixed by law. (2) the judges of the inferior courts shall receive, at regular stated intervals, adequate compensation which shall not be decreased during their terms of office. article 81. the supreme court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act. article 82. trials shall be conducted and judgment declared publicly. (2) where a court unanimously determines publicity to be dangerous to public order or morals, a trial may be conducted privately, but trials of political offenses, offenses involving the press or cases wherein the rights of people as guaranteed in chapter iii of this constitution are in question shall always be conducted publicly. chapter vii. finance article 83. the power to administer national finances shall be exercised as the diet shall determine. article 84. no new taxes shall be imposed or existing ones modified except by law or under such conditions as law may prescribe. article 85. no money shall be expended, nor shall the state obligate itself, except as authorized by the diet. article 86. cabinet shall prepare and submit to the diet for its consideration and decision a budget for each fiscal year. article 87. in order to provide for unforeseen deficiencies in the budget, a reserve fund may be authorized by the diet to be expended upon the responsibility of the cabinet. (2) the cabinet must get subsequent approval of the diet for all payments from the reserve fund. article 88. all property of the imperial household shall belong to the state. all expenses of the imperial household shall be appropriated by the diet in the budget. article 89. no public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association or for any charitable, educational benevolent enterprises not under the control of public authority. article 90. final accounts of the expenditures and revenues of state shall be audited annually by a board of audit and submitted by the cabinet to the diet, together with the statement of audit, during the fiscal year immediately following the period covered. (2) the organization and competency of the board of audit shall determined by law. article 91. at regular intervals and at least annually the cabinet shall report to the diet and the people on the state of national finances. chapter viii. local self-government article 92. regulations concerning organization and operations of local public entities shall be fixed by law in accordance with the principle of local autonomy. article 93. the local public entities shall establish assemblies as their deliberative organs, in accordance with law. (2) the chief executive officers of all local public entities, the members of their assemblies, and such other local officials as may be determined by law shall be elected by direct popular vote within their several communities' article 94. local entities shall have the right to manage their property, affairs and administration and to enact their own regulations within law. article 95. a special law, applicable to one local public entity, cannot be enacted by the diet without the consent of the majority of the voters of the local public entity concerned, obtained in accordance with law. chapter ix. amendments article 96. amendment to this constitution shall be initiated by the diet, through a concurring vote of two-thirds or more of all the members of each house and shall thereupon be submitted to the people for ratification which shall require the affirmative vote of a majority of all votes cast thereon, at special referendum or at such election as the diet shall specify. (2) amendments when so ratified shall immediately be promulgated by the emperor in the name of the people, as an integral part of this constitution. chapter x. supreme law article 97. the fundamental human rights by this constitution guaranteed to the people of japan are fruits of the age-old struggle of man to be free; they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate. article 98. this constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity. (2) the treaties concluded by japan and established laws of nations shall be faithfully observed. article 99. the emperor or the regent as well as ministers of state, members of the diet, judges, and all other public officials have the obligation to respect and uphold this constitution. chapter xi. supplementary provisions article 100. this constitution shall be enforced as from the day when the period of six months will have elapsed counting from the day of its promulgation. (2) the enactment of laws necessary for the enforcement of this constitution the election of members of the house of councillors and the procedure for the convocation of the diet and other preparatory procedures for the enforcement of this constitution may be executed before the day prescribed in the preceding paragraph. article 101. if the house of councilors is not constituted before the effective date of this constitution, the house of representatives shall function as the diet until such time as the house of councilors shall be constituted. article 102. the term of office for half the members of the house of councillors serving in the first term under this constitution shall be three years. members falling under this category shall be determined in accordance with law. article 103. the ministers of state, members of the house of representatives, and judges in office on the effective date of this constitution, and all other public officials, who occupy positions corresponding to such positions as are recognized by this constitution shall not forfeit their positions automatically on account of the enforcement of this constitution unless otherwise specified by law. when, however, successors are elected or appointed under the provisions of this constitution, they shall forfeit their positions as a matter of course. count the cost. an address to the people of connecticut, on sundry political subjects, and particularly on the proposition for a new constitution. by jonathan steadfast 1804 "however combinations or associations of the above description may now and then answer popular ends, they are likely in the course of time and things to become potent engines, by which cunning ambitions and unprincipled men will be enabled to subvert the power of the people, and to usurp to themselves, the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion." washington's farewell address. an address to the people of connecticut. "for which of you intending to build a tower sitteth not down first and counteth the cost?" an interesting question is here asked by the direction of infinite wisdom. this question contains the following useful and important instruction: that no man or body of men should attempt the accomplishment of any great object without duly estimating the evils and benefits probably resulting from it. such a rule of life and adopted and adhered to would have prevented many schemes and projects which have cost much, and which have been productive of nothing but the disgrace to their authors and misery to the human race--it would induce men to obey the dictates of experience rather than the dreams of enthusiasm, and would drive from the world a species of wisdom which is indeed folly. an attempt is now making in this state to change the vital principles of our government, to remove from office all our present rulers, and to introduce a new order of things. to these innovations the people are invited, allured and exhorted.--to effect these objects no pains are spared--no exertions are omitted. an important question here arises, viz. would the accomplishment of the object be worth the cost?--an individual who neither holds an office nor seeks one--who can have nothing in view but the maintenance of that order of things which shall most effectually promote public and private happiness, and who has the same interest in the welfare of society as the great body of his fellow citizens, requests the dispassionate attention of the reader, while he considers this important subject. he will use no weapon but truth and truth will be regarded by all except those who love darkness rather than light. to exhibit a correct view of the subject, it will be proper, first, to enquire into the present condition of connecticut, and secondly, to examine the various plans or projects proposed for our adoption, and estimate the probably cost attending them. we can then in the third place form a just opinion of the propriety of the proposed changes. the condition of connecticut first claims our attention. that our climate, soil and situation are such as to insure as much health, riches and prosperity as any people can rationally wish, seems not to be doubted. our natural advantages do not indeed promise such an accumulation of wealth as might satisfy that avarice which like the horse leach is constantly crying give--give--they are such however as will in ordinary cases, ensure to industry an ample reward and this should satisfy a virtuous mind. the diffusion of knowledge is greater than in any other part of the globe of equal dimensions. such are the excellent provisions of our laws, and the virtuous habits of our citizens, that schools of instruction in all useful knowledge are to be found in every place where they are needed. there is no village in this state which will not attest to this fact. in various places also flourishing academies are supported, in which the higher branches of science are taught, and our college is at once our ornament and our pride. religious instruction is also brought almost to every man's door, so that none can justly complain that they are denied the means of growing wiser and better. by the liberality of the benevolent private libraries are every where found which, with the other sources of information, evince the superiority of our condition to that of any other people, in the means of gaining valuable knowledge. to those, who with the writer, believe that ignorance is the parent of vice, and that the civilized is preferable to the savage state, our situation, in the above particulars, demands the gratitude of every heart. our constitution and government are perfectly free, and our laws are mild, equitable and just. to the truth of this position there is the most ample and unequivocal proof. 1. those who seek to revolutionize the state declare this to be the nature of our government with few exceptions.--such testimony cannot be doubted--it is the testimony of a man against himself. ask your neighbour to point you to the evils under which he labours--ask him to name the man who is oppressed except by his vices or his follies, and if he be honest, he will tell you that there is no such man--if he be dishonest, his silence will be proof in point. 2. strangers who reside here a sufficient time to learn our laws, universally concur in their declarations on this subject. they will ask, with surprize, why the people of connecticut should complain? they see every man indulged in worshiping god as he pleases, and they see many indulged in neglecting his worship entirely--they see men every where enjoying the liberty of doing what is right--and such liberty they rightly decide is the perfection of freedom. 3. the experience of a century and a half, affords irresistible proof on this subject. during this long period convulsions have shaken many parts of the earth, and there has been a mighty waste of human happiness. empires and kingdoms have been prostrated, and the sword hath been devouring without cessation. this state too hath been threatened-clouds have gathered and portended a dreadful desolation, but we have been defended, protected and saved. no essential changes in our government have ever taken place--formed by men who knew the important difference between liberty and licentiousness, it has been our shield-our strong tower--our secure fortress.--to the calls of our country we have ever been obedient--no state hath more cheerfully met danger--no state hath more readily or effectually resisted foreign aggression. washington while living was a witness to this fact, and tho' dead he yet speaketh. while plots, insurrections and rebellions have distressed many states and nations, connecticut hath enjoyed an internal peace and tranquility, which forcibly demonstrates the wisdom and equity of her government.--such a government, administered by men of virtue and talents, has produced the most benign effects, and our prosperity is calculated to excite the warmest expressions of gratitude rather than the murmurs of disaffection. 4. our treasury exhibits the truth of these remarks. it is clear from the statement in the appendix, to which every reader will advert with pleasure, that the people of connecticut annually receive thirty seven thousand four hundred and fifty-five dollars and seventy six cents more from the treasury than they pay into it by taxes and duties.--at the close of the late war such had been our exertions, we were encumbered with a debt of nearly two millions of dollars. now that debt is paid and we have nearly that sum in advance. where is the state which can justly boast of greater prosperity? notwithstanding this enviable situation a clamour is excited, the people are agitated, and discord, with its train of evils, is prevailing. some of our citizens, in the height of political prosperity, are seeking to destroy an order of things which has prevailed an hundred and fifty years, and throw themselves into the arms of projectors and reformers. is there nothing unaccountable in such conduct? is there nothing calculated to excite indignation? my fellow citizens, shall any considerable portion of the people of connecticut subject themselves to the reproach which rested on an ancient people? "the ox knoweth his owner and the ass his master's crib, but my people do not know, israel doth not consider." secondly. let us examine some of the plans and projects proposed for our adoption and estimate the probably cost attending them.– here we must speak with less certainty--what the present condition of connecticut is we know--respecting its future destiny we can only judge by arguing from cause to effect. why a man who regards the happiness of his fellow men, should attempt a change here, is too wonderful for an ordinary capacity. no prudent farmer ever pulled up a hill of corn, which was flourishing, to see if there was not a worm at the root. one of these projects is the repeal of all laws for the support of religious institutions. the language of those who favor the measure is, that religion will take care of itself--that no external aid is necessary--that all legislative interference is impious. many, and it is believed by far the greater part, of those who make these declarations, intend to throw down all the barriers which christianity has erected against vice. they are obstinately determined to banish from the public mind all affection and veneration for the clergy, and respect for the institutions of religion, and to reduce connecticut to that condition which knows no distinction between "him who serveth god and him who serveth him not." they wish to see a republic without religion; and should they be gratified, the consequence would speedily be, a miserable race of men without virtue, walling in vice and ripening for a dreadful destruction. if infinite truth is to be credited, "god will pour out his indignation on the heathen who know him not." these reformers, under the specious pretext of exercising unbounded liberality in matters of religion, become intolerant to all who differ from them, charging the professors of christianity with breathing out a spirit of persecution, they become the most furious persecutors, and while they affect to possess great moderation and candor towards all denominations of christians, they clearly evince that they would grant indulgence or protection to none. on the other hand a great majority of the people and the legislature, insist that every man in the community who is able, should contribute, in some way, towards the support of the institutions of religion. no wish is entertained to legislate in matters of faith, or to establish one sect in preference to another. our laws permit every man to worship god when, where, and in the manner most agreeable to his principles or to his inclination, and not the least restraint is imposed; all ideas of dictating to the conscience are discarded, and every man "sits under his own vine and fig tree." our laws only enforce the great principle abovementioned that the members of the community should contribute towards the support of these institutions, as means to promote the prosperity of the people in the same manner as they provide for the public accommodation, peace and happiness, by the maintenance of the roads and bridges, the organization of the militia, and the support of schools of instruction. should objections be urged by any individuals that they cannot conscientiously contribute to the promotion of these objects, their objections would be disregarded. there is a class of men, very respectable for the sobriety of their habits, and their peaceful deportment, who always refuse to be taxed for military defence. no one doubts that in their opposition, they are conscientious, and yet few doubt the propriety of enforcing such taxes. the principle now advocated is interwoven with all our laws and habits --it has existed from the first settlement of the state--it has produced much good--it ought not therefore to be abandoned without the utmost deliberation. the clamor against this principle, is the clamor of those who wish to see the state revolutionized--it is the clamor of those turbulent spirits which delight in confusion and which pull down and destroy with a dexterity which they never shew in building up. let the sober citizens of connecticut look at the authors of this clamor--let them view such men as abraham bishop, and eye the path which they have trodden from their youth, and then ask their own hearts, if they are not under some apprehension, lest if they should enlist under such leaders and fight their cause, they may be found contending against the best interests of society, and "fighting against god." another project zealously supported is that of districting the state for the choice of assistants, and representatives in congress. the only argument which is urged for the adoption of this measure with any plausibility, is that in the district elections the candidate would be better known. to this argument it may be replied, the state of connecticut is so limited in its extent, information of all kinds is so generally diffused, and there is such a flood of newspapers that the characters of all the candidates for office may be thoroughly known by all who will bestow any attention to the subject. this state is scarcely more extensive than a single county in many other states, and the intercourse of the inhabitants of the various parts with each other is such that no evil can exist in our present mode of elections--but there are serious and weighty objections against district elections. 1. such elections open wide the door for intrigue.--as this door, already too widely extended, the most alarming mischiefs enter-mischiefs which sap the foundations of an elective government by corrupting the minds of the freemen and this converting an election ground into a theatre on which is displayed the most vile and demoralizing practices. let the reader satisfy himself as to the truth of this observation by examining the history of an election in the southern states, where this mode alone is adopted. let him learn that they candidates for office and his host of dependents and tools, are employed for weeks before and on the days of election, in the most infamous intrigues, and that falsehood and bribery are so much in fashion, and are so universally resorted to, that success invariably attends the most impudent and the most profligate, while the man of modesty and virtue, though possessing the fairest claims to promotion, is abashed, confounded and overwhelmed. 2ndly. the candidate when elected becomes the creature of the district and not the ruler of a state--he is and must be devoted to the interest of that portion of the community which has elected him, and their views and schemes must be patronized though they oppose the welfare of the whole. 3rdly. such elections do not secure the best talents. if talents and worth are of consideration, surely they should be at the command of the public. it is of no moment where a man dwells, but it is of immense importance that he be a wise man rather than a fool--a man of integrity rather than a knave. 4thly. experience, the only save and unerring guide, is altogether in favor of elections at large rather than by districts. the representation of this state in congress has ever been of the most respectable character--it is not too much to say that no state in the union can justly claim a superiority to connecticut in this respect. the fame may be affirmed, with truth, of the upper house of the legislature of this state. has there not been a constant succession of able and wise men in that branch of the administration of connecticut? for more than a century we have preserved an unexampled prosperity.--shall we hazard our interests on the speculations of zealous partizans who are constantly bewildering themselves and their followers in new schemes? another project is that of universal suffrage. the streets resound with the clamour that men are deprived of the invaluable privilege of choosing their rulers, and the people are invited to extend this privilege to all who pay taxes and do military duty. it is now discovered that connecticut, in this particular, is not free.--the great argument urged in support of universal suffrage is that taxation and representation should go hand in hand--it is said that this maxim was deemed just during the revolutionary war, and that americans adhered to it as a fundamental principle.--this principle the writer readily recognizes as a sound and indisputable position in every free government. but what is the meaning of the maxim? does it intend that every person who is taxed, can of right claim the privilege of giving his suffrage? if so persons convicted of offences, or who are infamous for their vices may vote--for such persons are not outlawed.--on this principle, women of full age and unmarried, are also to be admitted.-minors also whose property is taxed, should be permitted to exercise this franchise, at least by guardian or proxy. what then is the true meaning of the maxim, that representation and taxation are inseparable? here all writers agree--it means that no community should be taxed by the legislature unless that community is, or might have been represented in such legislature.--hence several towns in this state till lately, were not represented in the general assembly, and of course not taxed.-barkhempsted, colebrook, and winchester, it is believed, were of this description. this state and the other states understood this maxim precisely as now explained, in their opposition to great-britain.--we complained that the colonies should not be taxed because they were not represented in parliament. in this view of the subject the maxim is wise and just. again, is not every town in connecticut now represented in the legislature, and of course each individual equally with every other? in the representative of hartford, for example, a representative of the freemen of hartford, or of the town of hartford? the truth is, every man, woman and child are represented. but it is said that many persons are excluded from giving their suffrages who have life, liberty and reputation to protect. on a close attention to this fact it will be found that the number of those worthy members of society who do not possess the legal qualification, is small, and if men are to have an influence in elections according to the amount of their taxes, why should not the man who pays fifty dollars, be entitled to more than one vote? no one pleads for such a privilege, but there are many who insist that the man without a cent of property shall have the same direction in the choice of those who are charged with the interests of the community, as he who is worth thousands of dollars. a friend to the rights of man seems to feel no alarm at the idea that one who exhausts his earnings in the grog-shop, should have an influence in elections in proportion to strength of his lungs, or his activity in intrigue, but he is greatly agitated from an apprehension that men who have property to protect, will not promote the well being of society. a juror who is to decide on the controversies of his neighbours--an appraiser of land--a distributor of a deceased persons estate, must be freeholders by a standing law which is the subject of no ensure, and yet it is said that in the important transaction of choosing men to enact laws, and to appoint those who are to decide on, and execute those laws, no qualifications are necessary. again, it is insisted by those who oppose universal suffrage, and the reader is desired to notice the remark with attention, that no community can be safe unless the power of elections resides principally with the great body of the landholders. such an influence had this principle on those wise men who formed our laws, that a mere trifle in real property gives the right of suffrage, while a man may be excluded who is the proprietor of personal property to a large amount. landholders have an enduring interest in the welfare of the community. they are lords of their own soil, and of course, to a certain degree, independent--they therefore will resist tyranny--they will equally oppose anarchy because they are aware that in any storm which may arise they must abide its fury. the merchant, with his thousands, can seek a shelter--to the mere bird of passage, who has no "abiding country and who seeks none to come," it is of little moment whether stability or confusion predominate, but to the former who is enchained to the state, peace and order is of inestimable value. what, my fellow citizens, is the attempt now making? what is the language of those who advocate universal suffrage? it is nothing less than an effort to rest from the farmers of connecticut that controul over the elections which is their only fortress of safety. let men who wish to protect their invaluable rights ponder on these things, and let them at the same time, remember that no nation in which universal suffrage hath been allowed, hath remained free and happy. another project urged, with great vehemence, is, to displace all our present rulers--by those, is meant our legislators in the general and state government--our judges and magistrates of every grade. that such is a darling object with those who seek to revolutionize connecticut, there is no doubt. is such a measure wise? who are these rulers? a candid observer must reply, they are men in whose hands power has been wisely placed by the people, and who have never abused that power, men of unquestionable talents and of spotless fame. among them are your trumbulls, your ellsworths, your hillhouses, your griswolds, your goodriches and your cavenports, men tried and approved. among them there is one who was side by side with your beloved washington during the revolutionary war, who has repeatedly been elected your first magistrate, and, against whom, the tongue of slander never moved but in the hard service of a harder master. there is another, who, for more than twenty years has been employed in the first offices in the gift of his country, and whose probity and talents are second to those of none of his contemporaries. among these are many who must enjoy the affection and veneration of their countrymen while superior worth is regarded. against these men the cry is raised--not the cry of the oppressed, for god knows no man in connecticut is oppressed, but the cry of those who pant for office, and who can rise only on the ruins of others. your judges also to whom is committed the administration of justice, are marked out as the victims of party spirit. is not a wise and faithful execution of the laws the chief object of every good government? without this who is safe for a moment? without this, liberty can exist only in name--the name indeed may be blasphemously uttered, but the substance is gone with the liberty of all who have relied on professions. let the people of connecticut look at their tribunals of justice. are they not filled with men of incorruptible integrity? where has innocence received a more ample protection? is not the transgressor punished, and are not the wrongs of the injured redressed? are not our mild laws executed in mercy, and is not justice awarded with impartiality to individuals? can you look at the seat of justice and say "iniquity is there?" dare any man say that the judges of our high courts are not upright, intelligent and learned? who then can justly complain? yet the stripling of yesterday--the bold projector--the unprincipled ad ambitious, with a host of deceived followers, with matchless effrontery, arraign the conduct of these magistrates and loudly demand that they be driven from their offices, and from public confidence. another favorite scheme is to elevate to all the offices of importance men who have never enjoyed the public confidence. the language of these revolutionists is, respecting the men in power in connecticut, "we will not have these men to rule over us"--we will fill their places with men of our choice--the creatures of our hands, and who will be subservient to our views. but, my countrymen, before you join in this project, pause and enquire, who are these men who thus assert their claim to rule over you? who are these men who place themselves in the corners of the streets and cry "oh, that we were made judges in the land?" it is no part of the writer's design to hunt vice from its guilty retreat, to expose before an insulted people, the horrid features which distinguish certain individuals who challenge popular applause, or to attach private character, but justice demands that men who boldly claim to be the rulers of the free and happy state of connecticut, should be known. the men who are to stand in the places of our trumbulls and our ellsworths should not shrink from public investigation. to those who respect the authority of god it is a matter of no small moment that those who rule over men should be just, ruling in the fear of god nor will men, accustomed to revere this solemn declaration, lend their aid to elevate men of vicious and corrupt lives, without some dismay. it is not enough to tell us that men will be selected of more virtue and talents than those now in power--such a pretence is vain--no man in his senses will regard it--no man makes such a pretence but for wicked purpose. if we are directed to turn our eyes to those who for years past have been held up in the unsuccessful nominations, and are told that these are to be substituted for the men who now guide our councils, what are we to expect? an appeal may be made to every man not bewildered in this new and destructive madness--he may be asked who among these men stand-forth with fair claims to public confidence? where among them, can be found the polished scholar--the able civilian, the enlightened judge? do we see in a single individual an assemblage of talents united with virtue sufficient to qualify him for the seat of justice? if there are such men they have hitherto hid their talents i the earth. it will not here be forgotten that the attempt is, to reject men long known and respected, and to fill their places with those who are without a witness in their favor. a still more mischievous and alarming project is, that of making a new constitution for connecticut. this project originates entirely in a spirit of jacobinism--it is a new theme on which to descant to effect a revolution in connecticut. the object is, by false assertions, to induce a belief that no constitution exists and that tyranny prevails. this party always address the passions and never the understanding.--review their measures for a few years, and you will distinctly perceive their motives and aims. to create disaffection and hatred towards those who formerly administered the general government, it was boldly asserted that the treasury had been plundered. even the illustrious saviour of his country was accused of embezzling public money, and his followers could not expect a less happy fate. men of the most unsuspected integrity, were openly attacked by anonymous publications, or dispoiled of their good name by secret insinuations. these calumnies were kept in circulation by their authors till impudence itself was abashed, and the object in view obtained--not a tittle of proof was ever adduced, and investigation always shewed that the charges were not only false, but entirely groundless. for the same unworthy purpose it was asserted in every circle of opposition that salaries were too high, and the incomes of office enormous. every tavern resounded with this grievance. at length the principal authors of this clamor got into place, and the clamor was hushed. yes, men who urged the people of connecticut almost to rebellion on this account, stept into the places and, without a blush, took more from the people than their predecessors. look at mr. babcock's paper in 1799 and 1800, and see its columns filled with railing against high salaries--look at it since abraham bishop takes 3000 dollars a year, and alexander wolcott more than four, and find, if you can, a complaint on this subject. such meanness, such baseness, such hypocrisy in office seekers, exhibit in strong colors the depravity of human nature and teach us what dependence may justly be placed on pretensions and professions. to inflame the passions and to create animosity, various subjects have been successively seized upon, and pressed into the service of the revolutionists--every quarrel however trivial is noticed--every seed of discord however small is nourished to disseminate murmurs and to further the great object.-various classes of the community are told, with apparent anxiety for their welfare, that they are oppressed, and that a new order of things must arise, or that they will be enslaved. new subjects are started as old ones cease to operate, and thus all that ingenuity and art, industry and perseverance, can devise or effect is accomplished. thus, that numerous and respectably body of christians called episcopalians have been told, and repeatedly told, that the more numerous denomination were seeking to deprive them of their just and equal rights, and to subject them to the tyranny of an overbearing majority--these tales were reiterated till their authors found them useless from their folly and falsehood. at another time the baptists are addressed by a set of men who denied the reality of any religion and the most earnest yearnings for their welfare. they tyranny of the legislature was painted in horrid colors, and they were exhorted to lend their aid to vindicate the cause of the oppressed. those who conscientiously believe that no taxes ought to be paid for the support of religion, and those who wish that religion might no more infest the residence of men, were addressed with considerations adapted to their respective cases. at one time men destitute of property are seduced by the alluring doctrine of universal suffrage--then the farmer is told that taxes are too high on land, and, with the same breath, the mechanic is sagely informed, that the poll tax should be repealed, and the burden fall back on the land holder. festivals under the pretence of honoring the election of mr. jefferson and mr. burr, and of extolling the wisdom of the purchase of louisiana, but with a real design to blazen the fame of those who assume the character of friends of the people that they may the more readily destroy the most free and equitable government in the world, are continually holden, and the discontented, the factious, the ambitious and the corrupt, are collected and flattered with declamations in the various shapes of prayers, sermons and orations. thus a people enjoying the height of political prosperity are cajoled into a belief that men without virtue, without the restraints of the gospel, without a particle of real regard for their fellow men, are their best friends, and are anxiously laboring to promote their good. let such remember, that when the ethiopian shall change his skin, when the leopard shall change his spots, and when bitter fountains shall send forth sweet water, then will those who flatter the people with their tongues, and deceive them with their lips seek their happiness. such are some of the measures resorted to by those who have sworn in their wrath that connecticut shall be revolutionized. finding all these ineffectual, and that the good sence and virtue of connecticut has hitherto opposed an inseparable barrier to all their plans, they now exclaim connecticut has no constitution. such a gross absurdity could never have been promulgated till the mind was in some degree prepared, by being accustomed to misrepresentation. this was well known to mr. bishop, who has for years been in the habit of disregarding moral obligation. in the year 1789 this orator pronounced several inflammatory invectives against the constitution of the united states, to which he was a bitter enemy till he obtained an office under it worth three thousand dollars a year. at that time his language was, the constitution of connecticut is the best in the world--it has grown up with the people, and is fitted to their condition.--now this consistent man who is endeavoring to gull the people that he may successfully tyrannize over them, avows that they are without a constitution. my fellow citizens, examine this head of clamor with candor, read the solemn declaration of washington in the title page, attend to the following remarks, and then tell me if you do not perceive in this project, with the manner in which it is supported and attempted to be accomplished, enough of the revolutionary spirit of france, to excite the indignation of every real friend to the peace and happiness of connecticut. 1. if there be no constitution in connecticut then your huntingtons, your trumbulls, your shermans, your wolcotts and your davenports, with many other worthies, who were your defence in war, and your ornament in peace, and who are now sleeping with their fathers, were wicked usurpers --they ruled their fellow citizens without authority--they were tyrants. let judd and bishop approach the sepulchures of these venerable men--let them lift the covering from these venerable ashes and in the face of heaven pronounce them tyrants!! could you see them approach their dust with such language on their tongues, you would see them retreat with horrible confusion from these relicks of departed worth. 2. the present rulers are acting also without authority, and their laws are void--then you are already in the midst of anarchy and wild misrule --then has no man a title to an inch of land, and you are ready for an equal of division of property--all protection of life and liberty is at an end, and the will of a mob is now to prevail. 3. if indeed there is no constitution, then the oath which has been administered in your freemen's meetings for twenty years, by which each man has sworn "to be true and faithful to the constitution" of the state, is worse than impious profanation of the name of god--then your judges, magistrates and jurors have stripped men of their property, condemned some to newgate and others to the post, the pillory and the gallows without a warrant, and are therefore murderers.--o thou god of order in this our condition!!! but, 4. we have a constitution--a free and happy constitution. it was to our fathers like the shadow of a great rock in a weary land--it has enabled them to transmit to us a fair and glorious inheritance--if we suffer revolutionists to rob us of this birth right "then we are bastards and not sons." it is a fact as well authenticated as the settlement of the state, that a constitution was formed by the people of the then colony of connecticut, before the charter of king charles. this charter was a guarantee of that constitution. trumbull's history of connecticut gives us this constitution and its origin. on our separation from greatbritain, the people, thro' their representatives, made the following declaration on this subject: "an act containing an abstract and declaration of the rights and privileges of the people of this state, and securing the same. the people of this state, being by the providence of god, free and independent, have the sole and exclusive right of governing themselves as a free, sovereign, and independent state; and having from their ancestors derived a free and excellent constitution of government whereby the legislature depends on the free and annual election of the people, they have the best security for the preservation of their civil and religious rights and liberties. and forasmuch as the free fruition of such liberties and privileges as humanity, civility and christianity call for, as is due to every man in his place and proportion, without impeachment and infringement, hath ever been, and wilt be the tranquility and stability of churches and commonwealths; and the denial thereof, the disturbance, if not the ruin of both. par. i. be it enacted and declared by the governor, and council and house of representatives, in general court assembled: that the ancient form of civil government, contained in the charter from charles the second, king of england, and adopted by the people of this state, shall be and remain the civil constitution of this state under the sole authority of the people thereof, independent of any king or prince whatever. and that this republic is, and shall forever be and remain, a free, sovereign and independent sate, by the name of the state of connecticut. 2. and be it further enacted and declared, that no man's land shall be taken away: no man's honor or good name shall be stained: no man's person shall be arrested, restrained, banished, dismembered, nor any ways punished: no man shall be deprived of his wife or children; no man's goods or estate shall be taken away from him nor any ways indamaged under the color of law, or countenance of authority; unless clearly warranted by the laws of this state. 3. that all the free inhabitants of this or any other of the united states of america, and foreigners in amity with this state, shall enjoy the same justice and law within this state, which is general for the state in all cases proper for the cognizance of the civil authority and court of judicature within the same, and that without partiality or delay. 4. and that no man's person shall be restrained, or imprisoned, by any authority whatsoever, before the law hat sentenced him thereunto, if he can and will give sufficient security, bail, or mainprize for his appearance and good behaviour in the mean time, unless it be for capital crimes, contempt in open court, or in such cases wherein some express law doth allow of, or order the same." these proceedings have been regarded as the ark of our political safety by the great and the good of all parties, who have gone before us. never till this year have we heard, or even suspected that our state was governed by lawless mobs. now, as a means to effect a revolution, for the first time, have a few designing men endeavored to excite alarm-they have indeed excited alarm--sober men of their own party are alarmed--honest men, who are not misguided, see the whole extent of this project and they will frown it into contempt. 5. mr. edwards, as chairman of a body of men whom he calls a state committee, on the 30th of july, without consulting even his brethren of the committee, ordered delegates to meet at new-haven on the 5th wednesday of august. in those towns where enough could not be assembled to elect a member, the person written to, was authorized to attend and take a seat. in some towns the proposition was rejected even by republicans. the delegates thus chosen, with all who united with their opinions, and chose to attend, met at the time and place appointed--shut their doors against every eye and ear--sat one day, formed an address, ordered ten thousand copies printed and dissolved. this address we have seen. it deserves some notice: the first thing that attracts our attention is, that william judd, esq. of farmington, is appointed chairman. this was an admirable provision --such a meeting should certainly have such a head. a man with the habit of devoting his feeble talents to intrigue, and who is noticeable only for an ostentatious parade, would preside in such an assembly with peculiar grace. his acquaintance could not but approve of this exhibition of the power of inflammable air and be pleased with its effects [on] an exhausted receiver. the meeting thus organized proceeded to stile this convention as follows: "at a meeting of delegates from ninety-seven towns of the state of connecticut, convened at new-haven on the 29th of august, 1804." delegates--delegates do they stile themselves? the people would be obliged to this convention to disclose their authority. who commissioned these gentlemen for this important labor of providing them with a constitution? the truth is not a man in that convention was chosen by a majority of the people of [their] town--in many instances with less than a quarter part, and in general with less than a tenth----yet they call themselves delegates. thus [the] convention with major judd in the chair, precede their address [with] a grosly deceptive declaration---a declaration notoriously false and [impu]dent. they then declare it as their unanimous opinion, "that the people of this state are at present without a constitution of civil government." this was to have been expected. mr. edwards ordered them to meet for that purpose, and shall they not obey their master? bishop and wolcott have repeatedly directed them to make this declaration, and major judd knows it to be true. can any man doubt either the truth of this remark or the sincerity with which it is uttered? is it not clear that this whole proceeding originates in a pure unmixed affection for the people and a sacred regard to truth? my fellow citizens, look at the whole course of the lives of judd, (i place him first on the list because he was chairman) of bishop and of wolcott, and say if they have not ever been under the influence of the most disinterested virtue and the most exalted patriotism? look also at these delegates from ninetyseven towns, and say if they can have any other object in view but the dignity, happiness and glory of their country? individuals can only vouch for individuals. the writer can vouch for about thirty with major judd at their head. if any reader shall think that the subject is treated with too much levity, he should reflect that we are now animadverting on this convention in their appointment of chairman, their stiling themselves delegates from ninety-seven towns, and their declaration that we have no constitution. on these subjects it is scarcely possible to be serious. the address proceeds to declare how many of the confederated states have made for themselves constitutions. we ask, which of them is more prosperous than connecticut? in which of them are the great interests of society better secured? in new-york a convention was called about three years since to amend their constitution. in pennsylvania they have had two constitutions and they are now on the eve of a civil war. duane the great moving spring of all jacobin societies, a vile outcast from europe, reigns with uncontroled sway in every measure, and every man of virtue is denounced. in georgia they have had two constitutions, and in vermont two, and who dare pronounce their political situation equal to that of connecticut. the people of france have had six constitutions within fifteen years, and where are those constitutions? in the grave of anarchy and despotism with millions of deluded inhabitants who have been sacrificed by the robespieres and the bishops of that suffering nation. to that suffering nation turn your eyes and reflect that the mighty mass of woe under which they have groaned, was produced by an ambition, fierce, cruel and destructive as hell, and that an ambition alike terrible reigns every where. read this address attentively, and you will be struck with the idea that no grievance is mentioned----not a single evil is pointed out---indeed the convention declare that they must be "excused a detail of the numerous wrongs which have arrived to us under this government"----these are their words---they are excused indeed---yes, they are excused from not polluting their address with falsehoods in this particular---full well they knew that no such wrongs existed----full well they anticipated that a certain detection would follow any such attempt at imposition. the leaders in this convention knew full well that there is intelligence enough in connecticut to meet them on any complaint, and to shew that it is groundless. they, therefore, prudently decline to be explicit, and yielding to us that the government is now well administered, they shew a great anxiety for the safety of the "next generation." what an astonishing display of philanthropy!! bishop and wolcott are not at ease in their hearts while there is a prospect that even the generations which succeed us, will experience a woe!! after many remarks directed to the passions, without proposing in specific terms a single provision of their newly projected constitution, without laying their finger upon a single grievance, without urging a single argument tending to shew that a constitution does not exist, the address unmakes itself---it unmasks the convention---it unmasks these patriotic delegates, and discovers the true cause of this jacobinic meeting. towards the close of it, speaking of the people, it says, "by their votes will be known their decision. if a constitution appears desirable, they will vote for men who are in favor of it." here the convention speak which all may understand---but lest they had not made themselves sufficiently intelligible, they add, "we ask men of all parties to attend punctually at proxies and to continue a contest of votes till the great question whether this state shall have a constitution be settled finally and forever." now, the plain english of these sentences is this "we who are here assembled in convention wish the people of connecticut to vote for such men, in future, for office, as are in favor of a new constitution---we have already declared that we are in favor of such a constitution---pray therefore vote for us and continue" the context "till we succeed and then"---yes---my fellowcitizens, and then, what will they do? why laugh at your folly---take all the offices and leave you to take care of yourselves. if such would not be their conduct then the sun will no more rise in the east. gentlemen of the convention pray cease your pretensions to promotion till the people discover your merit. if you are honest, great and wise you will certainly be noticed and promoted--if you are pygmy politicians, the mushroom growth of an hour, dressed only with the little brief authority of self created delegates to a self created convention to aggrandise yourselves, then probably you will live with little further notice, and it will only be said hereafter of you that you belonged to an assembly convened at new-haven on the 29th of august 1804, which sprang up in a day, chose major judd chairman; and like "jonah's gourd withered in a day." in this convention the question was much discussed whether the address should be made to the people or to the constituted authority of our state, the legislature. some honest republicans insisted that it was proper to apply to the legislature, but this was opposed by the young lawyers and the leaders of the party universally--full well they knew that such a measure would not answer their purpose--mobs never talk of any authority except that of the sovereign people--to the sovereign people they go, and to the sovereign people they appeal till a sovereign people are cruelly insulted, cajoled and enslaved. marat, robespierre and bonaparte told the sovereign people that they were all in all till they had robbed them of their dearest interests, and enchained them in despotism, and they now mock them with such declarations as these,* "the perfectability of human nature, the worst disease of man"-"the caprice of elections must be destroyed"-"the people cannot govern themselves" having examined some of the plans or projects proposed for our adoption, we will now estimate the probably cost attending them. it is to be recollected that the proposition is to change the vital principles of our government--to displace our present rulers and to fill their places with men who never enjoyed the public confidence. to determine whether these objects are worth accomplishing, it is necessary to count the cost. 1. one part of this cost will be an increase of the violence of parties. men who regard their property, their liberty and their lives, will not yield them a willing sacrifice to the demands of the ambitious and unprincipled--men who faced danger and braved death during a seven years war--men whose veins are warm with the blood of their venerable ancestors who planted this happy state, and defended it amidst innumerable hardships and calamities--men who deem their birthright sacred--their own freedom valuable, and their children dear as their own blood, will not calmly, nor cowardly suffer those who have no claims but their impudence, to storm their fortress and to capture them. they will defend it in all lawful ways.-bishop and wolcott, and a thousand other mercenary hirelings may attempt to subdue or terrify them--a proud and haughty leader who under the guise of patriotism, is attempting to undermine the happiness of the best regulated and freest state in the union, with a thousand sycophants, conspiring to bring us under the yoke of virginia, may exhaust their ingenuity and malice, still connecticut will remain unshaken. she will never crouch like isachar to chains and fetters while any portion of the noble spirit of her ancestors who transmitted this fair inheritance at a mighty expense, remains to impel them to noble exertions.--it is ardently to be wished that the passions of those who seek to overturn the venerable institutions of connecticut, my subside, and that a spirit of reconciliation and moderation may succeed to that madness which threatens our peace.--if however the controversy is to be continued and a mob insist on the right to rule, freemen will protect their lives and their liberties.--and is not the peace and tranquility of the state of importance? we have been told with more truth than sincerity that "life itself is a dreary thing" without "harmony in social intercourse." happy would it have been if the author of that just and pertinent remark had not contributed more than any other man in the united states to embitter parties, and to render life indeed a "dreary thing." 2. another item in the expense of accomplishing these projects, is a corruption of morals. to revolutionize connecticut it will be necessary to circulate, without any intermission, many gross falsehoods respecting the men in power, the judges, legislators and magistrates, and the acts and proceedings of the general assembly. we have seen the columns of the mercury and the republican farmer filled with vile libels.--we have seen abraham bishop followed by hundreds enter a temple devoted to the service of god, and we have heard him there utter the most malignant slanders on the clergy, the legislature and the courts of law.--we have seen him publicly denounce one class and another of his fellow citizens as hypocrites, old tories and traitors.--we have seen him receiving for this, the applause of a wretched collection of disappointed, ambitious and corrupt men. this has been borne and the author despised, and indignantly hissed from the society of the respectable and virtuous--but the end is not gained--new themes of reviling--new subjects of abuse must be sought, and the party who wish to effect a revolution, are pledged to uphold and protect the agents however wicked. what then may now be expected? that dreadful declaration "truth is fallen in their streets" will soon be but an inconsiderable part of our miserable character. it need not be added that such a condition evinces great corruption of morals. 3. another part of this expense will be the elevation of men to office who are unworthy of public confidence. what can a nation or state expect from such men? what could now be expected from these men but that they become immediately the creatures of a party--the tools of a faction? is it worthy of no consideration that judges who are to be the arbiters of controversies--who are to adjudicate on the lives of their fellow citizens, and to whom is committed the dearest and highest interests of society, should be men of virtue--of wisdom and of unsullied reputation? can a court be a shield against the proud oppressor when a daring leader can crush them with his nod? be not deceived my fellow citizens--no nation hath yet made such an experiment without feeling its bitter and dreadful effects. see the revolutionary tribunals of france--see in them a melancholy picture of corrupt courts and unprincipled judges--the cruelty of that nation hath appeared no where more infernal than through their forms of law and in their sanctuaries of justice--a corrupt judgment seat is the greatest curse with which a people can be punished. in the mean time all subordinate tribunals will partake of the same character.--thus instead of a government of laws, there will be the tyranny of a desperate faction.--let no one reply that there is no danger of such evils in connecticut. we now see a few leaders controul a party of several thousands--we have seen six hundred meet and applaud the purchase of louisiana when not one in five of them could form any opinion on the merits of the bargain--we have seen a few leaders direct the offering of incense to burr while the great body of their followers cursed him--we see a party suffering the pride of virginia to controul the government of the union and to oppress new-england with a heavy impost because she would not submit to internal taxes--we see a few leaders direct a convention of about two hundred to issue an address to the people of connecticut, which address contains on the face of it many palpable falsehoods.--and cannot these same leaders controul a court? 4. another part of the cost of these projects, is the loss of all our institutions of religion.--it is not here intended that these institutions will be at once abolished--such a measure would alarm some honest men of the party--a gradual but sure destruction is the evil to be feared. the constitution of the united states was first attacked by an unconstitutional repeal of a law, and now the independence of the supreme court is to be destroyed, by impeachments of the judges. so will it fare with your institutions. the principle openly advocated is that none shall be obliged to contribute for the support of religious institutions. this once established destroys the vitals of the system, and the residue of its existence will be misery and wretchedness. shall a party avowing this sentiment and seeking by every artifice to give it effect, receive the support of a people who have derived such substantial benefits from these institutions? shall we look in vain thro' the ranks of that party for one to lift up his voice against this daring and dangerous innovation? are there not many who either do not believe this to be the object of their leaders, or if such shall be their object, who are determined to resist them? yes, there are many who act with them, who still intend to progress to no such excesses. let such view the conduct of similar parties--let such not be deceived--this is indeed their object--they do not avow it to you, they know you would reject it, but they have made a vow that the influence of the clergy shall be destroyed--this can be done in no other way. nor can you resist them--they regard you now because they wish your assistance to confer on them power, but will they regard you when your exertions can neither aid nor defeat their designs?--surely not--such has been the conduct of all factions.--it will be theirs should they prevail--the world has not furnished one solitary exception, nor can you expect one in this case. they seek their own good, and not the good of others, if inspiration is to be credited. in return for these losses what good is to acrue to the people? will you hazard these evils without a fair and reasonable expectation of some solid benefits? is it then unreasonable to enquire what good is to be obtained? do the characters of these men elevate your hopes? you know many of them in private life--do they there abound in good works? shall they be heard and regarded when they demand of you to displace your faithful and approved rulers, and commit to them your all? modest men will wait your notice and rise at your request. shall the impudent, banish them from your affections and usurp their places in your hearts? let it again be asked what good will result to connecticut by a new constitution, by the prevalence of revolutionary principles? france, switzerland, the netherlands, italy and holland, have seen revolution after revolution, one new constitution after another, and liberty has a thousand times been immovably established. altars have been demolished --temples polluted, kings, queens, nobles and priests murdered in the cause of liberty--millions have perished--religion banished, and the worship of god prohibited--projectors have exhausted their ingenuity --the treasures of wealth have been wasted and the peace of the world sacrificed! what is the result? an accumulation of misery which baffles all description. not an individual is more happy or more virtuous. not a nation more prosperous--not a tittle added to human felicity. ye reformers, look at france--behold the crimes which have risen up to demand the vengeance of god--see the woes which you have brought on the race of man, and tremble lest your works should follow you? if this picture is too glaring, look at our sister states in which revolutions have been effected, and shew us the benefit. a noisy or seditious individual has obtained a lucrative office--an ambitious leader is in the char of state satiating his pride, or like abraham bishop gratifying his passion for ignoble pelf, upon his thousands.--he drives his carriage by his industrious neighbor who has toiled for him at an election, cracks his whip, and laughs at the folly of his dupe, and will laugh till he may need his services again, and then he will again cringe and bow and flatter and gull. but is the mechanic, the farmer, the merchant profited? is society enriched, or the public good promoted? in this view of the subject we will briefly ask, in the third place, is it proper to make the proposed changes--to adopt these projects? if no benefits will result--if much evil will probably ensue--the course of duty and interest is plain. aware, however, that it may be said many of the dangers are imaginary, and are founded upon the supposition that we shall act with as little discretion and prudence as the people of other countries, it is important to observe that revolutions are the same, in nature in every nation. those who speak of a new constitution, and of thorough reforms, should recollect that the promoters of these schemes in france, constantly amused the people with the idea that a new order of things--new rights--new principles, were to arise. who does not recollect to have read of the perfectability human nature--of the enlightened age of regenerated france? she boldly proclaimed herself the example of the world, and all nations were invited to see her glory, and enjoy her blessed liberty and her glorious equality. but mark the issue --not twelve years have elapsed before she has returned to an inglorious despotism--she has exchanged her capets for a foreign usurper, with an incalculable loss, and here her history ends. such is the constant termination of such revolutions, and shall we claim to be an exception? how do we judge as to the propriety of any course of life except by observation, experience or history? we see industry and integrity rewarded with competence or wealth--we see intemperance and sloth followed with disease, loss of reputation and poverty. these are sure grounds on which to predict respecting our neighbors, and by which to regulate our own conduct. on similar principles a wise people regard the conduct of other nations, and are solemnly admonished by their example. let not then the projector persuade us to adopt his theories with proofs of their danger thus glaring before our eyes. look at the conduct of our revolutionists for four years past, and see if you do not discover the genuine principles of the jacobins of france--recollect also that they had first a convention--then an executive directory--then a consul for years--then a consul for life, and then an usurper with an hereditary descent in his family. at each successive revolution the people were courted--were flattered--were promised transcendent felicity. the people swore eternal hatred to monarchy, and eternal fidelity to constitutions, till, heaven, weary of their perjuries, sent them a despot in his wrath. my fellow citizens human nature is the same here as in france--then before you give ear to the songs of enchantment count the cost--before you sell your birthright for a mess of pottage count the cost. before you consent to yield up the institutions of your wise and pious ancestors, count the cost--before you admit universal suffrage count the cost--before you submit to the mischievous doctrine of district elections, count the cost.--before you reject from office the men whom your hearts approve, count the cost, the great cost of weak and wicked rulers.--before you consent to be governed by men whose impudence, and vice constitute many of their claims to promotion, count the cost. this evil you can prevent by attending with punctuality on our elections. the freemen of connecticut are mighty when they arise in their strength. no freeman can justify absence except from necessity.--that people who will not faithfully attend upon the choice of their rulers, cannot expect to retain their freedom.--trust not to a majority--say not that things will go well without me--such language is unbecoming freemen--despair not of a majority--if you will not "go with the multitude to do evil," go against them to do good. before you neglect an election count the cost --if the loss of your vote should prove the loss of an election of a single man, then will you not have counted the cost. my fellow citizens--we have a government which has protected us a century and an half--we have enjoyed unexampled prosperity.--we may transmit a glorious inheritance to posterity.--the writer has children dear to him as his own blood--these children are to him a sacred deposit--he can, with confidence, commit their political interests to such a government as connecticut has enjoyed.--he is persuaded that if they feel the iron hand of despotism, it will not be from such a government, and such rulers as we now possess--before he yields his own, and their dear, and inestimable rights to the wild projects of the reformers of this age, he is firmly resolved to sit down and count the cost, and he entreats his fellow citizens to adopt similar resolutions. appendix. a view of the fiscal concerns of connecticut. capital funds of the civil list. dols. cts. funded 6 per cent. stock, (real capital) 209,273 83 deferred --do. do. do. 148,632 83 funded 3 per cent. do. 50,038 11 bank stock 44,725 __________ 425,669 77 __________ school funds. bonds collaterally secured 1,020,542 27 new lands received in payment of school bonds, price at which received, 194,000 funded 6 per cent. stock, (real capital) 14,048 deferred --do. do. -do. 5,455 7 funded 3 per cent. do. 4,570 95 ___________ 1,238,617 29 ___________ annual expense of government. viz. salaries of executive officers, 8,630 debentures and contingent expenses of the legislature for two sessions, 17,100 debenture of the supreme court of errors, 550 judicial expenses, 6,100 expense of newgate prison, 4,000 charges of paupers and vagrants, 4,500 allowance of 2 dollars on the 1000 of the list being a draw-back from the state tax, 12,000 contingent expenses, comprising all other charges of government, 6,200 ____________ 59,080 ____________ means for defraying the annual expense of the civil list. viz. annual interest on the above-mentioned stock appertaining to the civil list funds, 26,553 54 duties on civil processes, 5,700 annual tax of 7 mills on the dollar, neat amount, 35,700 _____________ 67,953 54 _____________ n.b. one eighth part of all the state taxes and one tenth part of all rateable polls are abated for the relief of the indigent. the yearly interest of the whole school funds would be 74,179 88 deduct the interest on that part which lies in lands, and also on those bonds whereon interest has not yet commenced, amounts to 7, 324 12 n.b. several bonds draw interest in present year, which were not on interest last year. and the whole present annual interest will be 66,855 76 add to this the allowance of 2 dolls. on the 1000 of the list, 12,000 total annual amount payable for schools, 78,855 76 drawable from the state treasury annually, by the people in their capacity of school societies, 78,855 76 payable by the people into the state treasury annually in taxes (including duties on civil processes) only the sum of 41,400 balance drawn out beyond what is paid by taxes and duties, 37,455 76 from the foregoing view of their financial arrangements, it appears that the people of connecticut not only enjoy the blessings of civil government free from expense, but even receive from the public treasury yearly, in sum of 37,455 dollars and 76 cents more than they contribute to in taxes, &c. who can behold this uparalleled situation of finances, taking into view at the same time our embarrassed circumstances at the close of the late war, when we were not only destitute of any funds except direct taxes, but incumbered with a debt of two millions of dollars, and not admire and appreciate the faithfulness and ability of those who have so sucessfully managed the public affairs of this state. this ebook was produced by andrew sly. the british north america act, 1867. 30 victoria, chapter 3. an act for the union of canada, nova scotia, and new brunswick, and the government thereof; and for purposes connected therewith. [29th march, 1867.] whereas the provinces of canada, nova scotia, and new brunswick have expressed their desire to be federally united into one dominion under the crown of the united kingdom of great britain and ireland, with a constitution similar in principle to that of the united kingdom: and whereas such a union would conduce to the welfare of the provinces and promote the interests of the british empire: and whereas on the establishment of the union by authority of parliament it is expedient, not only that the constitution of the legislative authority in the dominion be provided for, but also that the nature of the executive government therein be declared: and whereas it is expedient that provision be made for the eventual admission into the union of other parts of british north america: be it therefore enacted and declared by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows: i.--preliminary. 1. [short title.] this act may be cited as the british north america act, 1867. 2. [application of provisions referring to the queen.] the provisions of this act referring to her majesty the queen extend also to the heirs and successors of her majesty, kings and queens of the united kingdom of great britain and ireland. ii.--union. 3. [declaration of union] it shall be lawful for the queen, by and with the advice of her majesty's most honourable privy council, to declare by proclamation that, on and after a day therein appointed, not being more than six months after the passing of this act, the provinces of canada, nova scotia, and new brunswick shall form and be one dominion under the name of canada; and on and after that day those three provinces shall form and be one dominion under that name accordingly. 4. [construction of subsequent provisions of act.] the subsequent provisions of this act shall, unless it is otherwise expressed or implied, commence and have effect on and after the union, that is to say, on and after the day appointed for the union taking effect in the queen's proclamation; and in the same provisions, unless it is otherwise expressed or implied, the name canada shall be taken to mean canada as constituted under this act. 5. [four provinces.] canada shall be divided into four provinces, named ontario, quebec, nova scotia, and new brunswick. 6. [provinces of ontario and quebec.] the parts of the province of canada (as it exists at the passing of this act) which formerly constituted respectively the provinces of upper canada and lower canada shall be deemed to be severed, and shall form two separate provinces. the part which formerly constituted the province of upper canada shall constitute the province of ontario; and the part which formerly constituted the province of lower canada shall constitute the province of quebec. 7. [provinces of nova scotia and new brunswick.] the provinces of nova scotia and new brunswick shall have the same limits as at the passing of this act. 8. [decennial census.] in the general census of the population of canada which is hereby required to be taken in the year one thousand eight hundred and seventy-one, and in every tenth year thereafter, the respective populations of the four provinces shall be distinguished. iii.--executive power. 9. [declaration of executive power in the queen.] the executive government and authority of and over canada is hereby declared to continue and be vested in the queen. 10. [application of provisions referring to governor general.] the provisions of this act referring to the governor general extend and apply to the governor general for the time being of canada, or other the chief executive officer or administrator for the time being carrying on the government of canada on behalf and in the name of the queen, by whatever title he is designated. 11. [constitution of privy council for canada.] there shall be a council to aid and advise in the government of canada, to be styled the queen's privy council for canada; and the persons who are to be members of that council shall be from time to time chosen and summoned by the governor general and sworn in as privy councillors, and members thereof may be from time to time removed by the governor general. 12. [all powers under acts to be exercised by governor general with advice of privy council, or alone.] all powers, authorities, and functions which under any act of the parliament of great britain, or of the parliament of the united kingdom of great britain and ireland, or of the legislature of upper canada, lower canada, canada, nova scotia, or new brunswick, are at the union vested in or exerciseable by the respective governors or lieutenant governors of those provinces, with the advice, or with the advice and consent, of the respective executive councils thereof, or in conjunction with those councils, or with any number of members thereof, or by those governors or lieutenant governors individually, shall, as far as the same continue in existence and capable of being exercised after the union in relation to the government of canada, be vested in and exerciseable by the governor general, with the advice or with the advice and consent of or in conjunction with the queen's privy council for canada, or any members thereof, or by the governor general individually, as the case requires, subject nevertheless (except with respect to such as exist under acts of the parliament of great britain or of the parliament of the united kingdom of great britain and ireland) to be abolished or altered by the parliament of canada. 13. [application of provisions referring to governor general in council.] the provisions of this act referring to the governor general in council shall be construed as referring to the governor general acting by and with the advice of the queen's privy council for canada. 14. [power to her majesty to authorize governor general to appoint deputies.] it shall be lawful for the queen, if her majesty thinks fit, to authorize the governor general from time to time to appoint any person or any persons jointly or severally to be his deputy or deputies within any part or parts of canada, and in that capacity to exercise during the pleasure of the governor general such of the powers, authorities, and functions of the governor general as the governor general deems it necessary or expedient to assign to him or them, subject to any limitations or directions expressed or given by the queen; but the appointment of such a deputy or deputies shall not affect the exercise by the governor general himself of any power, authority, or function. 15. [command of armed forces to continue to be vested in the queen.] the command-in-chief of the land and naval militia, and of all naval and military forces, of and in canada, is hereby declared to continue and be vested in the queen. 16. [seat of government of canada.] until the queen otherwise directs the seat of government of canada shall be ottawa. iv.--legislative power. 17. [constitution of parliament of canada.] there shall be one parliament for canada, consisting of the queen, an upper house styled the senate, and the house of commons. 18. [privileges, &c. of houses.] the privileges, immunities, and powers to be held, enjoyed, and exercised by the senate and by the house of commons and by the members thereof respectively shall be such as are from time to time defined by act of the parliament of canada, but so that the same shall never exceed those at the passing of this act held, enjoyed, and exercised by the commons house of parliament of the united kingdom of great britain and ireland and by the members thereof. 19. [first session of the parliament of canada.] the parliament of canada shall be called together not later than six months after the union. 20. [yearly session of the parliament of canada.] there shall be a session of the parliament of canada once at least in every year, so that twelve months shall not intervene between the last sitting of the parliament in one session and its first sitting in the next session. the senate. 21. [number of senators.] the senate shall, subject to the provisions of this act, consist of seventy-two members, who shall be styled senators. 22. [representation of provinces in senate.] in relation to the constitution of the senate, canada shall be deemed to consist of three divisions: 1. ontario; 2. quebec; 3. the maritime provinces, nova scotia and new brunswick; which three divisions shall (subject to the provisions of this act) be equally represented in the senate as follows: ontario by twenty-four senators; quebec by twenty-four senators; and the maritime provinces by twenty-four senators, twelve thereof representing nova scotia, and twelve thereof representing new brunswick. in the case of quebec each of the twenty-four senators representing that province shall be appointed for one of the twenty-four electoral divisions of lower canada specified in schedule a. to chapter one of the consolidated statutes of canada. 23. [qualifications of senator.] the qualifications of a senator shall be as follows: (1.) he shall be of the full age of thirty years: (2.) he shall be either a natural-born subject of the queen, or a subject of the queen naturalized by an act of the parliament of great britain, or of the parliament of the united kingdom of great britain and ireland, or of the legislature of one of the provinces of upper canada, lower canada, canada, nova scotia, or new brunswick, before the union, or of the parliament of canada after the union: (3.) he shall be legally or equitably seised as of freehold for his own use and benefit of lands or tenements held in free and common socage, or seised or possessed for his own use and benefit of lands or tenements held in franc-alleu or in roture, within the province for which he is appointed, of the value of four thousand dollars, over and above all rents, dues, debts, charges, mortgages, and incumbrances due or payable out of or charged on or affecting the same: (4.) his real and personal property shall be together worth four thousand dollars over and above his debts and liabilities: (5.) he shall be resident in the province for which he is appointed: (6.) in the case of quebec he shall have his real property qualification in the electoral division for which he is appointed, or shall be resident in that division. 24. [summons of senator.] the governor general shall from time to time, in the queen's name, by instrument under the great seal of canada, summon qualified persons to the senate; and, subject to the provisions of this act, every person so summoned shall become and be a member of the senate and a senator. 25. [summons of first body of senators.] such persons shall be first summoned to the senate as the queen by warrant under her majesty's royal sign manual thinks fit to approve, and their names shall be inserted in the queen's proclamation of union. 26. [addition of senators in certain cases.] if at any time on the recommendation of the governor general the queen thinks fit to direct that three or six members be added to the senate, the governor general may by summons to three or six qualified persons (as the case may be), representing equally the three divisions of canada, add to the senate accordingly. 27. [reduction of senate to normal number.] in case of such addition being at any time made, the governor general shall not summon any person to the senate, except on a further like direction by the queen on the like recommendation, until each of the three divisions of canada is represented by twenty-four senators and no more. 28. [maximum number of senators.] the number of senators shall not at any time exceed seventy-eight. 29. [tenure of place in senate.] a senator shall, subject to the provisions of this act, hold his place in the senate for life. 30. [resignation of place in senate.] a senator may by writing under his hand addressed to the governor general resign his place in the senate, and thereupon the same shall be vacant. 31. [disqualification of senators.] the place of a senator shall become vacant in any of the following cases:-(1.) if for two consecutive sessions of the parliament he fails to give his attendance in the senate: (2.) if he takes an oath or makes a declaration or acknowledgment of allegiance, obedience, or adherence to a foreign power, or does an act whereby he becomes a subject or citizen, or entitled to the rights or privileges of a subject or citizen, of a foreign power: (3.) if he is adjudged bankrupt or insolvent, or applies for the benefit of any law relating to insolvent debtors, or becomes a public defaulter: (4.) if he is attainted of treason or convicted of felony or of any infamous crime: (5.) if he ceases to be qualified in respect of property or of residence; provided, that a senator shall not be deemed to have ceased to be qualified in respect of residence by reason only of his residing at the seat of the government of canada while holding an office under that government requiring his presence there. 32. [summons on vacancy in senate.] when a vacancy happens in the senate by resignation, death, or otherwise, the governor general shall by summons to a fit and qualified person fill the vacancy. 33. [questions as to qualifications and vacancies in senate.] if any question arises respecting the qualification of a senator or a vacancy in the senate the same shall be heard and determined by the senate. 34. [appointment of speaker of senate.] the governor general may from time to time, by instrument under the great seal of canada, appoint a senator to be speaker of the senate, and may remove him and appoint another in his stead. 35. [quorum of senate.] until the parliament of canada otherwise provides, the presence of at least fifteen senators, including the speaker, shall be necessary to constitute a meeting of the senate for the exercise of its powers. 36. [voting in senate.] questions arising in the senate shall be decided by a majority of voices, and the speaker shall in all cases have a vote, and when the voices are equal the decision shall be deemed to be in the negative. the house of commons. 37. [constitution of house of commons in canada.] the house of commons shall, subject to the provisions of this act, consist of one hundred and eighty-one members, of whom eighty-two shall be elected for ontario, sixty-five for quebec, nineteen for nova scotia, and fifteen for new brunswick. 38. [summoning of house of commons.] the governor general shall from time to time, in the queen's name, by instrument under the great seal of canada, summon and call together the house of commons. 39. [senators not to sit in house of commons.] a senator shall not be capable of being elected or of sitting or voting as a member of the house of commons. 40. [electoral districts of the four provinces.] until the parliament of canada otherwise provides, ontario, quebec, nova scotia, and new brunswick shall, for the purposes of the election of members to serve in the house of commons, be divided into electoral districts as follows: 1.--ontario. ontario shall be divided into the counties, ridings of counties, cities, parts of cities, and towns enumerated in the first schedule to this act, each whereof shall be an electoral district, each such district as numbered in that schedule being entitled to return one member. 2.--quebec. quebec shall be divided into sixty-five electoral districts, composed of the sixty-five electoral divisions into which lower canada is at the passing of this act divided under chapter two of the consolidated statutes of canada, chapter seventy-five of the consolidated statutes for lower canada, and the act of the province of canada of the twenty-third year of the queen, chapter one, or any other act amending the same in force at the union, so that each such electoral division shall be for the purposes of this act an electoral district entitled to return one member. 3.--nova scotia. each of the eighteen counties of nova scotia shall be an electoral district. the county of halifax shall be entitled to return two members, and each of the other counties one member. 4.--new brunswick. each of the fourteen counties into which new brunswick is divided, including the city and county of st. john, shall be an electoral district; the city of st. john shall also be a separate electoral district. each of those fifteen electoral districts shall be entitled to return one member. 41. [continuance of existing election laws until parliament of canada otherwise provides.] until the parliament of canada otherwise provides, all laws in force in the several provinces at the union relative to the following matters or any of them, namely,--the qualifications and disqualifications of persons to be elected or to sit or vote as members of the house of assembly or legislative assembly in the several provinces, the voters at elections of such members, the oaths to be taken by voters, the returning officers, their powers and duties, the proceedings at elections, the periods during which elections may be continued, the trial of controverted elections, and proceedings incident thereto, the vacating of seats of members, and the execution of new writs in case of seats vacated otherwise than by dissolution,--shall respectively apply to elections of members to serve in the house of commons for the same several provinces. provided that, until the parliament of canada otherwise provides, at any election for a member of the house of commons for the district of algoma, in addition to persons qualified by the law of the province of canada to vote, every male british subject, aged twenty-one years or upwards, being a householder, shall have a vote. 42. [writs for first election.] for the first election of members to serve in the house of commons the governor general shall cause writs to be issued by such person, in such form, and addressed to such returning officers as he thinks fit. the person issuing writs under this section shall have the like powers as are possessed at the union by the officers charged with the issuing of writs for the election of members to serve in the respective house of assembly or legislative assembly of the province of canada, nova scotia, or new brunswick; and the returning officers to whom writs are directed under this section shall have the like powers as are possessed at the union by the officers charged with the returning of writs for the election of members to serve in the same respective house of assembly or legislative assembly. 43. [as to casual vacancies.] in case a vacancy in the representation in the house of commons of any electoral district happens before the meeting of the parliament, or after the meeting of the parliament before provision is made by the parliament in this behalf, the provisions of the last foregoing section of this act shall extend and apply to the issuing and returning of a writ in respect of such vacant district. 44. [as to election of speaker of house of commons.] the house of commons on its first assembling after a general election shall proceed with all practicable speed to elect one of its members to be speaker. 45. [as to filling up vacancy in office of speaker.] in case of a vacancy happening in the office of speaker by death, resignation, or otherwise, the house of commons shall with all practicable speed proceed to elect another of its members to be speaker. 46. [speaker to preside.] the speaker shall preside at all meetings of the house of commons. 47. [provision in case of absence of speaker.] until the parliament of canada otherwise provides, in case of the absence for any reason of the speaker from the chair of the house of commons for a period of forty-eight consecutive hours, the house may elect another of its members to act as speaker, and the member so elected shall during the continuance of such absence of the speaker have and execute all the powers, privileges, and duties of speaker. 48. [quorum of house of commons.] the presence of at least twenty members of the house of commons shall be necessary to constitute a meeting of the house for the exercise of its powers; and for that purpose the speaker shall be reckoned as a member. 49. [voting in house of commons.] questions arising in the house of commons shall be decided by a majority of voices other than that of the speaker, and when the voices are equal, but not otherwise, the speaker shall have a vote. 50. [duration of house of commons.] every house of commons shall continue for five years from the day of the return of the writs for choosing the house (subject to be sooner dissolved by the governor general), and no longer. 51. [decennial re-adjustment of representation.] on the completion of the census in the year one thousand eight hundred and seventy-one, and of each subsequent decennial census, the representation of the four provinces shall be readjusted by such authority, in such manner, and from such time, as the parliament of canada from time to time provides, subject and according to the following rules: (1.) quebec shall have the fixed number of sixty-five members: (2.) there shall be assigned to each of the other provinces such a number of members as will bear the same proportion to the number of its population (ascertained at such census) as the number sixty-five bears to the number of the population of quebec (so ascertained): (3.) in the computation of the number of members for a province a fractional part not exceeding one half of the whole number requisite for entitling the province to a member shall be disregarded; but a fractional part exceeding one half of that number shall be equivalent to the whole number: (4.) on any such re-adjustment the number of members for a province shall not be reduced unless the proportion which the number of the population of the province bore to the number of the aggregate population of canada at the then last preceding re-adjustment of the number of members for the province is ascertained at the then latest census to be diminished by one twentieth part or upwards: (5.) such re-adjustment shall not take effect until the termination of the then existing parliament. 52. [increase of number of house of commons.] the number of members of the house of commons may be from time to time increased by the parliament of canada, provided the proportionate representation of the provinces prescribed by this act is not thereby disturbed. money votes; royal assent. 53. [appropriation and tax bills.] bills for appropriating any part of the public revenue, or for imposing any tax or impost, shall originate in the house of commons. 54. [recommendation of money votes.] it shall not be lawful for the house of commons to adopt or pass any vote, resolution, address, or bill for the appropriation of any part of the public revenue, or of any tax or impost, to any purpose that has not been first recommended to that house by message of the governor general in the session in which such vote, resolution, address, or bill is proposed. 55. [royal assent to bills, &c.] where a bill passed by the houses of the parliament is presented to the governor general for the queen's assent, he shall declare, according to his discretion, but subject to the provisions of this act and to her majesty's instructions, either that he assents thereto in the queen's name, or that he withholds the queen's assent, or that he reserves the bill for the signification of the queen's pleasure. 56. [disallowance by order in council of act assented to by governor general.] where the governor general assents to a bill in the queen's name, he shall by the first convenient opportunity send an authentic copy of the act to one of her majesty's principal secretaries of state, and if the queen in council within two years after receipt thereof by the secretary of state thinks fit to disallow the act, such disallowance (with a certificate of the secretary of state of the day on which the act was received by him) being signified by the governor general, by speech or message to each of the houses of the parliament or by proclamation, shall annul the act from and after the day of such signification. 57. [signification of queen's pleasure on bill reserved.] a bill reserved for the signification of the queen's pleasure shall not have any force unless and until within two years from the day on which it was presented to the governor general for the queen's assent, the governor general signifies, by speech or message to each of the houses of the parliament or by proclamation, that it has received the assent of the queen in council. an entry of every such speech, message, or proclamation shall be made in the journal of each house, and a duplicate thereof duly attested shall be delivered to the proper officer to be kept among the records of canada. v.--provincial constitutions. executive power. 58. [appointment of lieutenant governors of provinces.] for each province there shall be an officer, styled the lieutenant governor, appointed by the governor general in council by instrument under the great seal of canada. 59. [tenure of office of lieutenant governor.] a lieutenant governor shall hold office during the pleasure of the governor general; but any lieutenant governor appointed after the commencement of the first session of the parliament of canada shall not be removeable within five years from his appointment, except for cause assigned, which shall be communicated to him in writing within one month after the order for his removal is made, and shall be communicated by message to the senate and to the house of commons within one week thereafter if the parliament is then sitting, and if not then within one week after the commencement of the next session of the parliament. 60. [salaries of lieutenant governors.] the salaries of the lieutenant governors shall be fixed and provided by the parliament of canada. 61. [oaths, &c. of lieutenant governor.] every lieutenant governor shall, before assuming the duties of his office, make and subscribe before the governor general or some person authorized by him oaths of allegiance and office similar to those taken by the governor general. 62. [application of provisions referring to lieutenant governor.] the provisions of this act referring to the lieutenant governor extend and apply to the lieutenant governor for the time being of each province or other the chief executive officer or administrator for the time being carrying on the government of the province, by whatever title he is designated. 63. [appointment of executive officers for ontario and quebec.] the executive council of ontario and of quebec shall be composed of such persons as the lieutenant governor from time to time thinks fit, and in the first instance of the following officers, namely,--the attorney general, the secretary and registrar of the province, the treasurer of the province, the commissioner of crown lands, and the commissioner of agriculture and public works, with in quebec, the speaker of the legislative council and the solicitor general. 64. [executive government of nova scotia and new brunswick.] the constitution of the executive authority in each of the provinces of nova scotia and new brunswick shall, subject to the provisions of this act, continue as it exists at the union until altered under the authority of this act. 65. [powers to be exercised by lieutenant governor of ontario or quebec with advice, or alone.] all powers, authorities, and functions which under any act of the parliament of great britain, or of the parliament of the united kingdom of great britain and ireland, or of the legislature of upper canada, lower canada, or canada, were or are before or at the union vested in or exerciseable by the respective governors or lieutenant governors of those provinces, with the advice or with the advice and consent of the respective executive councils thereof, or in conjunction with those councils, or with any number of members thereof, or by those governors or lieutenant governors individually, shall, as far as the same are capable of being exercised after the union in relation to the government of ontario and quebec respectively, be vested in and shall or may be exercised by the lieutenant governor of ontario and quebec respectively, with the advice or with the advice and consent of or in conjunction with the respective executive councils, or any members thereof, or by the lieutenant governor individually, as the case requires, subject nevertheless (except with respect to such as exist under acts of the parliament of great britain, or of the parliament of the united kingdom of great britain and ireland,) to be abolished or altered by the respective legislatures of ontario and quebec. 66. [application of provisions referring to lieutenant governor in council.] the provisions of this act referring to the lieutenant governor in council shall be construed as referring to the lieutenant governor of the province acting by and with the advice of the executive council thereof. 67. [administration in absence, &c. of lieutenant governor.] the governor general in council may from time to time appoint an administrator to execute the office and functions of lieutenant governor during his absence, illness, or other inability. 68. [seats of provincial governments.] unless and until the executive government of any province otherwise directs with respect to that province, the seats of government of the provinces shall be as follows, namely,--of ontario, the city of toronto; of quebec, the city of quebec; of nova scotia, the city of halifax; and of new brunswick, the city of fredericton. legislative power. 1.--ontario. 69. [legislature for ontario.] there shall be a legislature for ontario consisting of the lieutenant governor and of one house, styled the legislative assembly of ontario. 70. [electoral districts.] the legislative assembly of ontario shall be composed of eighty-two members, to be elected to represent the eighty-two electoral districts set forth in the first schedule to this act. 2.--quebec. 71. [legislature for quebec.] there shall be a legislature for quebec consisting of the lieutenant governor and of two houses, styled the legislative council of quebec and the legislative assembly of quebec. 72. [constitution of legislative council.] the legislative council of quebec shall be composed of twenty-four members, to be appointed by the lieutenant governor in the queen's name, by instrument under the great seal of quebec, one being appointed to represent each of the twenty-four electoral divisions of lower canada in this act referred to, and each holding office for the term of his life, unless the legislature of quebec otherwise provides under the provisions of this act. 73. [qualification of legislative councillors.] the qualifications of the legislative councillors of quebec shall be the same as those of the senators for quebec. 74. [resignation, disqualification, &c.] the place of a legislative councillor of quebec shall become vacant in the cases, mutatis mutandis, in which the place of senator becomes vacant. 75. [vacancies.] when a vacancy happens in the legislative council of quebec by resignation, death, or otherwise, the lieutenant governor, in the queen's name, by instrument under the great seal of quebec, shall appoint a fit and qualified person to fill the vacancy. 76. [questions as to vacancies, &c.] if any question arises respecting the qualification of a legislative councillor of quebec, or a vacancy in the legislative council of quebec, the same shall be heard and determined by the legislative council. 77. [speaker of legislative council.] the lieutenant governor may from time to time, by instrument under the great seal of quebec, appoint a member of the legislative council of quebec to be speaker thereof, and may remove him and appoint another in his stead. 78. [quorum of legislative council.] until the legislature of quebec otherwise provides, the presence of at least ten members of the legislative council, including the speaker, shall be necessary to constitute a meeting for the exercise of its powers. 79. [voting in legislative council.] questions arising in the legislative council of quebec shall be decided by a majority of voices, and the speaker shall in all cases have a vote, and when the voices are equal the decision shall be deemed to be in the negative. 80. [constitution of legislative assembly of quebec.] the legislative assembly of quebec shall be composed of sixty-five members, to be elected to represent the sixty-five electoral divisions or districts of lower canada in this act referred to, subject to alteration thereof by the legislature of quebec: provided that it shall not be lawful to present to the lieutenant governor of quebec for assent any bill for altering the limits of any of the electoral divisions or districts mentioned in the second schedule to this act, unless the second and third readings of such bill have been passed in the legislative assembly with the concurrence of the majority of the members representing all those electoral divisions or districts, and the assent shall not be given to such bill unless an address has been presented by the legislative assembly to the lieutenant governor stating that it has been so passed. 3.--ontario and quebec. 81. [first session of legislatures.] the legislatures of ontario and quebec respectively shall be called together not later than six months after the union. 82. [summoning of legislative assemblies.] the lieutenant governor of ontario and of quebec shall from time to time, in the queen's name, by instrument under the great seal of the province, summon and call together the legislative assembly of the province. 83. [restriction on election of holders of offices.] until the legislature of ontario or of quebec otherwise provides, a person accepting or holding in ontario or in quebec any office, commission, or employment, permanent or temporary, at the nomination of the lieutenant governor, to which an annual salary, or any fee, allowance, emolument, or profit of any kind or amount whatever from the province is attached, shall not be eligible as a member of the legislative assembly of the respective province, nor shall he sit or vote as such; but nothing in this section shall make ineligible any person being a member of the executive council of the respective province, or holding any of the following offices, that is to say, the offices of attorney general, secretary and registrar of the province, treasurer of the province, commissioner of crown lands, and commissioner of agriculture and public works, and in quebec solicitor general, or shall disqualify him to sit or vote in the house for which he is elected, provided he is elected while holding such office. 84. [continuance of existing election laws.] until the legislatures of ontario and quebec respectively otherwise provide, all laws which at the union are in force in those provinces respectively, relative to the following matters, or any of them, namely,--the qualifications and disqualifications of persons to be elected or to sit or vote as members of the assembly of canada, the qualifications or disqualifications of voters, the oaths to be taken by voters, the returning officers, their powers and duties, the proceedings at elections, the periods during which such elections may be continued, and the trial of controverted elections and the proceedings incident thereto, the vacating of the seats of members and the issuing and execution of new writs in case of seats vacated otherwise than by dissolution,--shall respectively apply to elections of members to serve in the respective legislative assemblies of ontario and quebec. provided that until the legislature of ontario otherwise provides, at any election for a member of the legislative assembly of ontario for the district of algoma, in addition to persons qualified by the law of the province of canada to vote, every male british subject, aged twenty-one years or upwards, being a householder, shall have a vote. 85. [duration of legislative assemblies.] every legislative assembly of ontario and every legislative assembly of quebec shall continue for four years from the day of the return of the writs for choosing the same (subject nevertheless to either the legislative assembly of ontario or the legislative assembly of quebec being sooner dissolved by the lieutenant governor of the province), and no longer. 86. [yearly session of legislature.] there shall be a session of the legislature of ontario and of that of quebec once at least in every year, so that twelve months shall not intervene between the last sitting of the legislature in each province in one session and its first sitting in the next session. 87. [speaker, quorum, &c.] the following provisions of this act respecting the house of commons of canada shall extend and apply to the legislative assemblies of ontario and quebec, that is to say,--the provisions relating to the election of a speaker originally and on vacancies, the duties of the speaker, the absence of the speaker, the quorum, and the mode of voting, as if those provisions were here re-enacted and made applicable in terms to each such legislative assembly. 4.--nova scotia and new brunswick. 88. [constitutions of legislatures of nova scotia and new brunswick.] the constitution of the legislature of each of the provinces of nova scotia and new brunswick shall, subject to the provisions of this act, continue as it exists at the union until altered under the authority of this act; and the house of assembly of new brunswick existing at the passing of this act shall, unless sooner dissolved, continue for the period for which it was elected. 5.--ontario, quebec and nova scotia. 89. [first elections.] each of the lieutenant governors of ontario, quebec and nova scotia shall cause writs to be issued for the first election of members of the legislative assembly thereof in such form and by such person as he thinks fit, and at such time and addressed to such returning officer as the governor general directs, and so that the first election of member of assembly for any electoral district or any subdivision thereof shall be held at the same time and at the same places as the election for a member to serve in the house of commons of canada for that electoral district. 6.--the four provinces. 90. [application to legislatures of provisions respecting money votes, &c.] the following provisions of this act respecting the parliament of canada, namely,--the provisions relating to appropriation and tax bills, the recommendation of money votes, the assent to bills, the disallowance of acts, and the signification of pleasure on bills reserved,--shall extend and apply to the legislatures of the several provinces as if those provisions were here re-enacted and made applicable in terms to the respective provinces and the legislatures thereof, with the substitution of the lieutenant governor of the province for the governor general, of the governor general for the queen and for a secretary of state, of one year for two years, and of the province for canada. vi.--distribution of legislative powers. powers of the parliament. 91. [legislative authority of parliament of canada.] it shall be lawful for the queen, by and with the advice and consent of the senate and house of commons, to make laws for the peace, order, and good government of canada, in relation to all matters not coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding anything in this act) the exclusive legislative authority of the parliament of canada extends to all matters coming within the classes of subjects next hereinafter enumerated; that is to say,- 1. the public debt and property. 2. the regulation of trade and commerce. 3. the raising of money by any mode or system of taxation. 4. the borrowing of money on the public credit. 5. postal service. 6. the census and statistics. 7. militia, military and naval service, and defence. 8. the fixing of and providing for the salaries and allowances of civil and other officers of the government of canada. 9. beacons, buoys, lighthouses, and sable island. 10. navigation and shipping. 11. quarantine and the establishment and maintenance of marine hospitals. 12. sea coast and inland fisheries. 13. ferries between a province and any british or foreign country or between two provinces. 14. currency and coinage. 15. banking, incorporation of banks, and the issue of paper money. 16. savings banks. 17. weights and measures. 18. bills of exchange and promissory notes. 19. interest. 20. legal tender. 21. bankruptcy and insolvency. 22. patents of invention and discovery. 23. copyrights. 24. indians, and lands reserved for the indians. 25. naturalization and aliens. 26. marriage and divorce. 27. the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters. 28. the establishment, maintenance, and management of penitentiaries. 29. such classes of subjects as are expressly excepted in the enumeration of the classes of subjects by this act assigned exclusively to the legislatures of the provinces. and any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this act assigned exclusively to the legislatures of the provinces. exclusive powers of provincial legislatures. 92. [subjects of exclusive provincial legislation.] in each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated, that is to say,- 1. the amendment from time to time, notwithstanding anything in this act, of the constitution of the province, except as regards the office of lieutenant governor. 2. direct taxation within the province in order to the raising of a revenue for provincial purposes. 3. the borrowing of money on the sole credit of the province. 4. the establishment and tenure of provincial offices and the appointment and payment of provincial officers. 5. the management and sale of the public lands belonging to the province and of the timber and wood thereon. 6. the establishment, maintenance, and management of public and reformatory prisons in and for the province. 7. the establishment, maintenance, and management of hospitals, asylums, charities, and eleemosynary institutions in and for the province, other than marine hospitals. 8. municipal institutions in the province. 9. shop, saloon, tavern, auctioneer, and other licences in order to the raising of a revenue for provincial, local, or municipal purposes. 10. local works and undertakings other than such as are of the following classes,- a. lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province: b. lines of steam ships between the province and any british or foreign country: c. such works as, although wholly situate within the province, are before or after their execution declared by the parliament of canada to be for the general advantage of canada or for the advantage of two or more of the provinces. 11. the incorporation of companies with provincial objects. 12. the solemnization of marriage in the province. 13. property and civil rights in the province. 14. the administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts. 15. the imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section. 16. generally all matters of a merely local or private nature in the province. education. 93. [legislation respecting education.] in and for each province the legislature may exclusively make laws in relation to education, subject and according to the following provisions:-(1.) nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union: (2.) all the powers, privileges, and duties at the union by law conferred and imposed in upper canada on the separate schools and school trustees of the queen's roman catholic subjects shall be and the same are hereby extended to the dissentient schools of the queen's protestant and roman catholic subjects in quebec: (3.) where in any province a system of separate or dissentient schools exists by law at the union or is thereafter established by the legislature of the province, an appeal shall lie to the governor general in council from any act or decision of any provincial authority affecting any right or privilege of the protestant or roman catholic minority of the queen's subjects in relation to education: (4.) in case any such provincial law as from time to time seems to the governor general in council requisite for the due execution of the provisions of this section is not made, or in case any decision of the governor general in council on any appeal under this section is not duly executed by the proper provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case require, the parliament of canada may make remedial laws for the due execution of the provisions of this section and of any decision of the governor general in council under this section. uniformity of laws in ontario, nova scotia, and new brunswick. 94. [legislation for uniformity of laws in three provinces.] notwithstanding anything in this act, the parliament of canada may make provision for the uniformity of all or any of the laws relative to property and civil rights in ontario, nova scotia, and new brunswick, and of the procedure of all or any of the courts in those three provinces, and from and after the passing of any act in that behalf the power of the parliament of canada to make laws in relation to any matter comprised in any such act shall, notwithstanding anything in this act, be unrestricted; but any act of the parliament of canada making provision for such uniformity shall not have effect in any province unless and until it is adopted and enacted as law by the legislature thereof. agriculture and immigration. 95. [concurrent powers of legislation respecting agriculture, &c.] in each province the legislature may make laws in relation to agriculture in the province, and to immigration into the province; and it is hereby declared that the parliament of canada may from time to time make laws in relation to agriculture in all or any of the provinces, and to immigration into all or any of the provinces; and any law of the legislature of a province relative to agriculture or to immigration shall have effect in and for the province as long and as far only as it is not repugnant to any act of the parliament of canada. vii.--judicature. 96. [appointment of judges.] the governor general shall appoint the judges of the superior, district, and county courts in each province, except those of the courts of probate in nova scotia and new brunswick. 97. [selection of judges in ontario, &c.] until the laws relative to property and civil rights in ontario, nova scotia, and new brunswick, and the procedure of the courts in those provinces, are made uniform, the judges of the courts of those provinces appointed by the governor general shall be selected from the respective bars of those provinces. 98. [selection of judges in quebec.] the judges of the courts of quebec shall be selected from the bar of that province. 99. [tenure of office of judges of superior courts.] the judges of the superior courts shall hold office during good behaviour, but shall be removable by the governor general on address of the senate and house of commons. 100. [salaries, &c., of judges.] the salaries, allowances, and pensions of the judges of the superior, district, and county courts (except the courts of probate in nova scotia and new brunswick), and of the admiralty courts in cases where the judges thereof are for the time being paid by salary, shall be fixed and provided by the parliament of canada. 101. [general court of appeal, &c.] the parliament of canada may, notwithstanding anything in this act, from time to time, provide for the constitution, maintenance, and organization of a general court of appeal for canada, and for the establishment of any additional courts for the better administration of the laws of canada. viii.--revenues; debts; assets; taxation. 102. [creation of consolidated revenue fund.] all duties and revenues over which the respective legislatures of canada, nova scotia, and new brunswick before and at the union had and have power of appropriation, except such portions thereof as are by this act reserved to the respective legislatures of the provinces, or are raised by them in accordance with the special powers conferred on them by this act, shall form one consolidated revenue fund, to be appropriated for the public service of canada in the manner and subject to the charges in this act provided. 103. [expenses of collection, &c.] the consolidated revenue fund of canada shall be permanently charged with the costs, charges, and expenses incident to the collection, management, and receipt thereof, and the same shall form the first charge thereon, subject to be reviewed and audited in such manner as shall be ordered by the governor general in council until the parliament otherwise provides. 104. [interest of provincial public debts.] the annual interest of the public debts of the several provinces of canada, nova scotia, and new brunswick at the union shall form the second charge on the consolidated revenue fund of canada. 105. [salary of governor general.] unless altered by the parliament of canada, the salary of the governor general shall be ten thousand pounds sterling money of the united kingdom of great britain and ireland, payable out of the consolidated revenue fund of canada, and the same shall form the third charge thereon. 106. [appropriation from time to time.] subject to the several payments by this act charged on the consolidated revenue fund of canada, the same shall be appropriated by the parliament of canada for the public service. 107. [transfer of stocks, &c.] all stocks, cash, banker's balances, and securities for money belonging to each province at the time of the union, except as in this act mentioned, shall be the property of canada, and shall be taken in reduction of the amount of the respective debts of the provinces at the union. 108. [transfer of property in schedule.] the public works and property of each province, enumerated in the third schedule to this act, shall be the property of canada. 109. [property in lands, mines, &c.] all lands, mines, minerals, and royalties belonging to the several provinces of canada, nova scotia, and new brunswick at the union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several provinces of ontario, quebec, nova scotia, and new brunswick in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the province in the same. 110. [assets connected with provincial debts.] all assets connected with such portions of the public debt of each province as are assumed by that province shall belong to that province. 111. [canada to be liable for provincial debts.] canada shall be liable for the debts and liabilities of each province existing at the union. 112. [debts of ontario and quebec.] ontario and quebec conjointly shall be liable to canada for the amount (if any) by which the debt of the province of canada exceeds at the union sixty-two million five hundred thousand dollars, and shall be charged with interest at the rate of five per centum per annum thereon. 113. [assets of ontario and quebec.] the assets enumerated in the fourth schedule to this act belonging at the union to the province of canada shall be the property of ontario and quebec conjointly. 114. [debt of nova scotia.] nova scotia shall be liable to canada for the amount (if any) by which its public debt exceeds at the union eight million dollars, and shall be charged with interest at the rate of five per centum per annum thereon. 115. [debt of new brunswick.] new brunswick shall be liable to canada for the amount (if any) by which its public debt exceeds at the union seven million dollars, and shall be charged with interest at the rate of five per centum per annum thereon. 116. [payment of interest to nova scotia and new brunswick.] in case the public debts of nova scotia and new brunswick do not at the union amount to eight million and seven million dollars respectively, they shall respectively receive by half-yearly payments in advance from the government of canada interest at five per centum per annum on the difference between the actual amounts of their respective debts and such stipulated amounts. 117. [provincial public property.] the several provinces shall retain all their respective public property not otherwise disposed of in this act, subject to the right of canada to assume any lands or public property required for fortifications or for the defence of the country. 118. [grants to provinces.] the following sums shall be paid yearly by canada to the several provinces for the support of their governments and legislatures: dollars. ontario . . . . . . . . . . eighty thousand. quebec . . . . . . . . . . .seventy thousand. nova scotia . . . . . . . . sixty thousand. new brunswick . . . . . . . fifty thousand. ----------------- two hundred and sixty thousand; and an annual grant in aid of each province shall be made, equal to eighty cents per head of the population as ascertained by the census of one thousand eight hundred and sixty-one, and in the case of nova scotia and new brunswick, by each subsequent decennial census until the population of each of those two provinces amounts to four hundred thousand souls, at which rate such grant shall thereafter remain. such grants shall be in full settlement of all future demands on canada, and shall be paid half-yearly in advance to each province; but the government of canada shall deduct from such grants, as against any province, all sums chargeable as interest on the public debt of that province in excess of the several amounts stipulated in this act. 119. [further grant to new brunswick.] new brunswick shall receive by half-yearly payments in advance from canada for the period of ten years from the union an additional allowance of sixty-three thousand dollars per annum; but as long as the public debt of that province remains under seven million dollars, a deduction equal to the interest at five per centum per annum on such deficiency shall be made from that allowance of sixty-three thousand dollars. 120. [form of payments.] all payments to be made under this act, or in discharge of liabilities created under any act of the provinces of canada, nova scotia, and new brunswick respectively, and assumed by canada, shall, until the parliament of canada otherwise directs, be made in such form and manner as may from time to time be ordered by the governor general in council. 121. [canadian manufactures, &c.] all articles of the growth, produce, or manufacture of any one of the provinces shall, from and after the union, be admitted free into each of the other provinces. 122. [continuance of customs and excise laws.] the customs and excise laws of each province shall, subject to the provisions of this act, continue in force until altered by the parliament of canada. 123. [exportation and importation as between two provinces.] where customs duties are, at the union, leviable on any goods, wares, or merchandises in any two provinces, those goods, wares, and merchandises may, from and after the union, be imported from one of those provinces into the other of them on proof of payment of the customs duty leviable thereon in the province of exportation, and on payment of such further amount (if any) of customs duty as is leviable thereon in the province of importation. 124. [lumber dues in new brunswick.] nothing in this act shall affect the right of new brunswick to levy the lumber dues provided in chapter fifteen of title three of the revised statutes of new brunswick, or in any act amending that act before or after the union, and not increasing the amount of such dues; but the lumber of any of the provinces other than new brunswick shall not be subject to such dues. 125. [exemption of public lands, &c.] no lands or property belonging to canada or any province shall be liable to taxation. 126. [provincial consolidated revenue fund.] such portions of the duties and revenues over which the respective legislatures of canada, nova scotia, and new brunswick had before the union power of appropriation as are by this act reserved to the respective governments or legislatures of the provinces, and all duties and revenues raised by them in accordance with the special powers conferred upon them by this act, shall in each province form one consolidated revenue fund to be appropriated for the public service of the province. ix.--miscellaneous provisions. general. 127. [as to legislative councillors of provinces becoming senators.] if any person being at the passing of this act a member of the legislative council of canada, nova scotia, or new brunswick, to whom a place in the senate is offered, does not within thirty days thereafter, by writing under his hand addressed to the governor general of the province of canada or to the lieutenant governor of nova scotia or new brunswick (as the case may be), accept the same, he shall be deemed to have declined the same; and any person who, being at the passing of this act a member of the legislative council of nova scotia or new brunswick, accepts a place in the senate shall thereby vacate his seat in such legislative council. 128. [oath of allegiance, &c.] every member of the senate or house of commons of canada shall before taking his seat therein take and subscribe before the governor general or some person authorized by him, and every member of a legislative council or legislative assembly of any province shall before taking his seat therein take and subscribe before the lieutenant governor of the province or some person authorized by him, the oath of allegiance contained in the fifth schedule to this act; and every member of the senate of canada and every member of the legislative council of quebec shall also, before taking his seat therein, take and subscribe before the governor general, or some person authorized by him, the declaration of qualification contained in the same schedule. 129. [continuance of existing laws, courts, officers, &c.] except as otherwise provided by this act, all laws in force in canada, nova scotia, or new brunswick at the union, and all courts of civil and criminal jurisdiction, and all legal commissions, powers, and authorities, and all officers, judicial, administrative, and ministerial, existing therein at the union, shall continue in ontario, quebec, nova scotia, and new brunswick respectively, as if the union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under acts of the parliament of great britain or of the parliament of the united kingdom of great britain and ireland,) to be repealed, abolished, or altered by the parliament of canada, or by the legislature of the respective province, according to the authority of the parliament or of that legislature under this act. 130. [transfer of officers to canada.] until the parliament of canada otherwise provides, all officers of the several provinces having duties to discharge in relation to matters other than those coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces shall be officers of canada, and shall continue to discharge the duties of their respective offices under the same liabilities, responsibilities, and penalties as if the union had not been made. 131. [appointment of new officers.] until the parliament of canada otherwise provides, the governor general in council may from time to time appoint such officers as the governor general in council deems necessary or proper for the effectual execution of this act. 132. [treaty obligations.] the parliament and government of canada shall have all powers necessary or proper for performing the obligations of canada or of any province thereof, as part of the british empire, towards foreign countries arising under treaties between the empire and such foreign countries. 133. [use of english and french languages.] either the english or the french language may be used by any person in the debates of the houses of the parliament of canada and of the houses of the legislature of quebec; and both those languages shall be used in the respective records and journals of those houses; and either of those languages may be used by any person or in any pleading or process in or issuing from any court of canada established under this act, and in or from all or any of the courts of quebec. the acts of the parliament of canada and of the legislature of quebec shall be printed and published in both those languages. ontario and quebec. 134. [appointment of executive officers for ontario and quebec.] until the legislature of ontario or of quebec otherwise provides, the lieutenant governors of ontario and quebec may each appoint under the great seal of the province the following officers, to hold office during pleasure, that is to say,--the attorney general, the secretary and registrar of the province, the treasurer of the province, the commissioner of crown lands, and the commissioner of agriculture and public works, and in the case of quebec the solicitor general, and may, by order of the lieutenant governor in council, from time to time prescribe the duties of those officers and of the several departments over which they shall preside or to which they shall belong, and of the officers and clerks thereof; and may also appoint other and additional officers to hold office during pleasure, and may from time to time prescribe the duties of those officers, and of the several departments over which they shall preside or to which they shall belong, and of the officers and clerks thereof. 135. [powers, duties, &c., of executive officers.] until the legislature of ontario or quebec otherwise provides, all rights, powers, duties, functions, responsibilities, or authorities at the passing of this act vested in or imposed on the attorney general, solicitor general, secretary and registrar of the province of canada, minister of finance, commissioner of crown lands, commissioner of public works, and minister of agriculture and receiver general, by any law, statute or ordinance of upper canada, lower canada, or canada, and not repugnant to this act, shall be vested in or imposed on any officer to be appointed by the lieutenant governor for the discharge of the same or any of them; and the commissioner of agriculture and public works shall perform the duties and functions of the office of minister of agriculture at the passing of this act imposed by the law of the province of canada, as well as those of the commissioner of public works. 136. [great seals.] until altered by the lieutenant governor in council, the great seals of ontario and quebec respectively shall be the same, or of the same design, as those used in the provinces of upper canada and lower canada respectively before their union as the province of canada. 137. [construction of temporary acts.] the words "and from thence to the end of the then next ensuing session of the legislature," or words to the same effect, used in any temporary act of the province of canada not expired before the union, shall be construed to extend and apply to the next session of the parliament of canada if the subject matter of the act is within the powers of the same, as defined by this act, or to the next sessions of the legislatures of ontario and quebec respectively, if the subject matter of the act is within the powers of the same as defined by this act. 138. [as to errors in names.] from and after the union the use of the words "upper canada" instead of "ontario," or "lower canada" instead of "quebec," in any deed, writ, process, pleading, document, matter, or thing, shall not invalidate the same. 139. [as to issue of proclamations before union, to commence after union.] any proclamation under the great seal of the province of canada issued before the union to take effect at a time which is subsequent to the union, whether relating to that province, or to upper canada, or to lower canada, and the several matters and things therein proclaimed shall be and continue of like force and effect as if the union had not been made. 140. [as to issue of proclamations after union.] any proclamation which is authorized by any act of the legislature of the province of canada to be issued under the great seal of the province of canada, whether relating to that province, or to upper canada, or to lower canada, and which is not issued before the union, may be issued by the lieutenant governor of ontario or of quebec, as its subject matter requires, under the great seal thereof; and from and after the issue of such proclamation the same and the several matters and things therein proclaimed shall be and continue of the like force and effect in ontario or quebec as if the union had not been made. 141. [penitentiary.] the penitentiary of the province of canada shall, until the parliament of canada otherwise provides, be and continue the penitentiary of ontario and of quebec. 142. [arbitration respecting debts, &c.] the division and adjustment of the debts, credits, liabilities, properties, and assets of upper canada and lower canada shall be referred to the arbitrament of three arbitrators, one chosen by the government of ontario, one by the government of quebec, and one by the government of canada; and the selection of the arbitrators shall not be made until the parliament of canada and the legislatures of ontario and quebec have met; and the arbitrator chosen by the government of canada shall not be a resident either in ontario or in quebec. 143. [division of records.] the governor general in council may from time to time order that such and so many of the records, books, and documents of the province of canada as he thinks fit shall be appropriated and delivered either to ontario or to quebec, and the same shall thenceforth be the property of that province; and any copy thereof or extract therefrom, duly certified by the officer having charge of the original thereof, shall be admitted as evidence. 144. [constitution of townships in quebec.] the lieutenant governor of quebec may from time to time, by proclamation under the great seal of the province, to take effect from a day to be appointed therein, constitute townships in those parts of the province of quebec in which townships are not then already constituted, and fix the metes and bounds thereof. x.--intercolonial railway. 145. [duty of government and parliament of canada to make railway herein described.] inasmuch as the provinces of canada, nova scotia, and new brunswick have joined in a declaration that the construction of the intercolonial railway is essential to the consolidation of the union of british north america, and to the assent thereto of nova scotia and new brunswick, and have consequently agreed that provision should be made for its immediate construction by the government of canada: therefore, in order to give effect to that agreement, it shall be the duty of the government and parliament of canada to provide for the commencement within six months after the union, of a railway connecting the river st. lawrence with the city of halifax in nova scotia, and for the construction thereof without intermission, and the completion thereof with all practicable speed. xi.--admission of other colonies. 146. [power to admit newfoundland, &c., into the union.] it shall be lawful for the queen, by and with the advice of her majesty's most honourable privy council, on addresses from the houses of the parliament of canada, and from the houses of the respective legislatures of the colonies or provinces of newfoundland, prince edward island, and british columbia, to admit those colonies or provinces, or any of them, into the union, and on address from the houses of the parliament of canada to admit rupert's land and the north-western territory, or either of them, into the union, on such terms and conditions in each case as are in the addresses expressed and as the queen thinks fit to approve, subject to the provisions of this act; and the provisions of any order in council in that behalf shall have effect as if they had been enacted by the parliament of the united kingdom of great britain and ireland. 147. [as to representation of newfoundland and prince edward island in senate.] in case of the admission of newfoundland and prince edward island, or either of them, each shall be entitled to a representation in the senate of canada of four members, and (notwithstanding anything in this act) in case of the admission of newfoundland the normal number of senators shall be seventy-six and their maximum number shall be eighty-two; but prince edward island when admitted shall be deemed to be comprised in the third of the three divisions into which canada is, in relation to the constitution of the senate, divided by this act, and accordingly, after the admission of prince edward island, whether newfoundland is admitted or not, the representation of nova scotia and new brunswick in the senate shall, as vacancies occur, be reduced from twelve to ten members respectively, and the representation of each of those provinces shall not be increased at any time beyond ten, except under the provisions of this act for the appointment of three or six additional senators under the direction of the queen. schedules. the first schedule. electoral districts of ontario. a. existing electoral divisions. counties. 1. prescott. 2. glengarry. 3. stormont. 4. dundas. 5. russell. 6. carleton. 7. prince edward. 8. halton. 9. essex. ridings of counties 10. north riding of lanark. 11. south riding of lanark. 12. north riding of leeds and north riding of grenville. 13. south riding of leeds. 14. south riding of grenville. 15. east riding of northumberland. 16. west riding of northumberland (excepting therefrom the township of south monaghan). 17. east riding of durham. 18. west riding of durham. 19. north riding of ontario. 20. south riding of ontario. 21. east riding of york. 22. west riding of york. 23. north riding of york. 24. north riding of wentworth. 25. south riding of wentworth. 26. east riding of elgin. 27. west riding of elgin. 28. north riding of waterloo. 29. south riding of waterloo. 30. north riding of brant. 31. south riding of brant. 32. north riding of oxford. 33. south riding of oxford. 34. east riding of middlesex. cities, parts of cities, and towns. 35. west toronto. 36. east toronto. 37. hamilton 38. ottawa 39. kingston 40. london 41. town of brockville, with the township of elizabethtown thereto attached. 42. town of niagara, with the township of niagara thereto attached. 43. town of cornwall, with the township of cornwall thereto attached. b. new electoral divisions. 44. the provisional judicial district of algoma. the county of bruce, divided into two ridings, to be called respectively the north and south ridings:-45. the north riding of bruce to consist of the townships of bury, lindsay, eastnor, albermarle, amabel, arran, bruce, elderslie, and saugeen, and the village of southampton. 46. the south riding of bruce to consist of the townships of kincardine (including the village of kincardine), greenock, brant, huron, kinloss, culross, and carrick. the county of huron, divided into two ridings, to be called respectively the north and south ridings:-47. the north riding to consist of the townships of ashfield, wawanosh, turnberry, howick, morris, grey, colborne, hullett, including the village of clinton, and mckillop. 48. the south riding to consist of the town of goderich and the townships of goderich, tuckersmith, stanley, hay, usborne, and stephen. the county of middlesex, divided into three ridings, to be called respectively the north, west, and east ridings:-49. the north riding to consist of the townships of mcgillivray and biddulph (taken from the county of huron), and williams east, williams west, adelaide, and lobo. 50. the west riding to consist of the townships of delaware, carradoc, metcalfe, mosa and ekfrid, and the village of strathroy. [the east riding to consist of the townships now embraced therein, and be bounded as it is at present.] 51. the county of lambton to consist of the townships of bosanquet, warwick, plympton, sarnia, moore, enniskillen, and brooke, and the town of sarnia. 52. the county of kent to consist of the townships of chatham, dover, east tilbury, romney, raleigh, and harwich, and the town of chatham. 53. the county of bothwell to consist of the townships of sombra, dawn, and euphemia (taken from the county of lambton), and the townships of zone, camden with the gore thereof, orford, and howard (taken from the county of kent). the county of grey, divided into two ridings, to be called respectively the south and north ridings:-54. the south riding to consist of the townships of bentinck, glenelg, artemesia, osprey, normanby, egremont, proton, and melancthon. 55. the north riding to consist of the townships of collingwood, euphrasia, holland, saint-vincent, sydenham, sullivan, derby, and keppel, sarawak and brooke, and the town of owen sound. the county of perth, divided into two ridings, to be called respectively the south and north ridings:-56. the north riding to consist of the townships of wallace, elma, logan, ellice, mornington, and north easthope, and the town of stratford. 57. the south riding to consist of the townships of blanchard, downie, south easthope, fullarton, hibbert, and the villages of mitchell and ste. marys. the county of wellington, divided into three ridings, to be called respectively north, south and centre ridings:-58. the north riding to consist of the townships of amaranth, arthur, luther, minto, maryborough, peel, and the village of mount forest. 59. the centre riding to consist of the townships of garafraxa, erin, eramosa, nichol, and pilkington, and the villages of fergus and elora. 60. the south riding to consist of the town of guelph, and the townships of guelph and puslinch. the county of norfolk, divided into two ridings, to be called respectively the south and north ridings:-61. the south riding to consist of the townships of charlotteville, houghton, walsingham, and woodhouse, and with the gore thereof. 62. the north riding to consist of the townships of middleton, townsend, and windham, and the town of simcoe. 63. the county of haldimand to consist of the townships of oneida, seneca, cayuga north, cayuga south, raynham, walpole, and dunn. 64. the county of monck to consist of the townships of canborough and moulton, and sherbrooke, and the village of dunnville (taken from the county of haldimand), the townships of caistor and gainsborough (taken from the county of lincoln), and the townships of pelham and wainfleet (taken from the county of welland). 65. the county of lincoln to consist of the townships of clinton, grantham, grimsby, and louth, and the town of st. catherines. 66. the county of welland to consist of the townships of bertie, crowland, humberstone, stamford, thorold, and willoughby, and the villages of chippewa, clifton, fort erie, thorold, and welland. 67. the county of peel to consist of the townships of chinguacousy, toronto, and the gore of toronto, and the villages of brampton and streetsville. 68. the county of cardwell to consist of the townships of albion and caledon (taken from the county of peel), and the townships of adjala and mono (taken from the county of simcoe). the county of simcoe, divided into two ridings, to be called respectively the south and north ridings:-69. the south riding to consist of the townships of west gwillimbury, tecumseth, innisfil, essa, tossorontio, mulmur, and the village of bradford. 70. the north riding to consist of the townships of nottawasaga, sunnidale, vespra, flos, oro, medonte, orillia and matchedash, tiny and tay, balaklava and robinson, and the towns of barrie and collingwood. the county of victoria, divided into two ridings, to be called respectively the south and north ridings:-71. the south riding to consist of the townships of ops, mariposa, emily, verulam, and the town of lindsay. 72. the north riding to consist of the townships of anson, bexley, carden, dalton, digby, eldon, fenelon, hindon, laxton, lutterworth, macaulay and draper, sommerville, and morrison, muskoka, monck and watt (taken from the county of simcoe), and any other surveyed townships lying to the north of the said north riding. the county of peterborough, divided into two ridings, to be called respectively the west and east ridings:-73. the west riding to consist of the townships of south monaghan (taken from the county of northumberland), north monaghan, smith, and ennismore, and the town of peterborough. 74. the east riding to consist of the townships of asphodel, belmont and methuen, douro, dummer, galway, harvey, minden, stanhope and dysart, otonabee, and snowden, and the village of ashburnham, and any other surveyed townships lying to the north of the said east riding. the county of hastings, divided into three ridings, to be called respectively the west, east, and north ridings:-75. the west riding to consist of the town of belleville, the township of sydney, and the village of trenton. 76. the east riding to consist of the townships of thurlow, tyendinaga, and hungerford. 77. the north riding to consist of the townships of rawdon, huntingdon, madoc, elzevir, tudor, marmora, and lake, and the village of stirling, and any other surveyed townships lying to the north of the said north riding. 78. the county of lennox to consist of the townships of richmond, adolphustown, north fredericksburgh, south fredericksburgh, ernest town, and amherst island, and the village of napanee. 79. the county of addington to consist of the townships of camden, portland, sheffield, hinchinbrooke, kaladar, kennebec, olden, oso, anglesea, barrie, clarendon, palmerston, effingham, abinger, miller, canonto, denbigh, loughborough, and bedford. 80. the county of frontenac to consist of the townships of kingston, wolfe island, pittsburg and howe island, and storrington. the county of renfrew, divided into two ridings, to be called respectively the south and north ridings:-81. the south riding to consist of the townships of mcnab, bagot, blithfield, brougham, horton, admaston, grattan, matawatchan, griffith, lyndoch, raglan, radcliffe, brudenell, sebastopol, and the villages of arnprior and renfrew. 82. the north riding to consist of the townships of ross, bromley, westmeath, stafford, pembroke, wilberforce, alice, petawawa, buchanan, south algona, north algona, fraser, mckay, wylie, rolph, head, maria, clara, haggerty, sherwood, burns, and richards, and any other surveyed townships lying north-westerly of the said north riding. every town and incorporated village existing at the union, not especially mentioned in this schedule, is to be taken as part of the county or riding within which it is locally situate. the second schedule. electoral districts of quebec specially fixed. counties of- pontiac. ottawa. argenteuil. huntingdon. missisquoi. brome. shefford. stanstead. compton. wolfe and richmond. megantic. town of sherbrooke. the third schedule. provincial public works and property to be the property of canada. 1. canals, with lands and water power connected therewith. 2. public harbours. 3. lighthouses and piers, and sable island. 4. steamboats, dredges, and public vessels. 5. rivers and lake improvements. 6. railways and railway stocks, mortgages, and other debts due by railway companies. 7. military roads. 8. custom houses, post offices, and all other public buildings, except such as the government of canada appropriate for the use of the provincial legislatures and governments. 9. property transferred by the imperial government, and known as ordnance property. 10. armouries, drill sheds, military clothing, and munitions of war, and lands set apart for general public purposes. the fourth schedule. assets to be the property of ontario and quebec conjointly. upper canada building fund. lunatic asylums. normal school. court houses in | aylmer, | lower canada. montreal, | kamouraska, | law society, upper canada. montreal turnpike trust. university permanent fund. royal institution. consolidated municipal loan fund, upper canada. consolidated municipal loan fund, lower canada. agricultural society, upper canada. lower canada legislative grant. quebec fire loan. temiscouata advance account. quebec turnpike trust. education--east. building and jury fund, lower canada. municipalities fund. lower canada superior education income fund. the fifth schedule. oath of allegiance. i, a.b., do swear, that i will be faithful and bear true allegiance to her majesty queen victoria. note.--the name of the king or queen of the united kingdom of great britain and ireland for the time being is to be substituted from time to time, with proper terms of reference thereto. declaration of qualification. i, a.b., do declare and testify, that i am by law duly qualified to be appointed a member of the senate of canada [or as the case may be], and that i am legally or equitably seised as of freehold for my own use and benefit of lands or tenements held in free and common socage [or seised or possessed for my own use and benefit of lands or tenements held in franc-alleu or in roture (as the case may be),] in the province of nova scotia [or as the case may be] of the value of four thousand dollars over and above all rents, dues, debts, mortgages, charges, and incumbrances due or payable out of or charged on or affecting the same, and that i have not collusively or colourably obtained a title to or become possessed of the said lands and tenements or any part thereof for the purpose of enabling me to become a member of the senate of canada [or as the case may be], and that my real and personal property are together worth four thousand dollars over and above my debts and liabilities. no treason. no. vi. the constitution of no authority. by lysander spooner. boston: published by the author. 1870. no treason the constitution of no authority i. the constitution has no inherent authority or obligation. it has no authority or obligation at all, unless as a contract between man and man. and it does not so much as even purport to be a contract between persons now existing. it purports, at most, to be only a contract between persons living eighty years ago. and it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. those persons, if any, who did give their consent formally, are all dead now. most of them have been dead forty, fifty, sixty, or seventy years. _and the constitution, so far as it was their contract, died with them._ they had no natural power or right to make it obligatory upon their children. it is not only plainly impossible, in the nature of things, that they _could_ bind their posterity, but they did not even attempt to bind them. that is to say, the instrument does not purport to be an agreement between any body but "the people" _then_ existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. let us see. its language is: we, the people of the united states (that is, the people _then existing_ in the united states), in order to form a more perfect union, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves _and our posterity_, do ordain and establish this constitution for the united states of america. it is plain, in the first place, that this language, _as an agreement_, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. in the second place, the language neither expresses nor implies that they had any intention or desire, nor that they imagined they had any right or power, to bind their "posterity" to live under it. it does not say that their "posterity" will, shall, or must live under it. it only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquility, liberty, etc. suppose an agreement were entered into, in this form: we, the people of boston, agree to maintain a fort on governor's island, to protect ourselves and our posterity against invasion. this agreement, as an agreement, would clearly bind nobody but the people then existing. secondly, it would assert no right, power, or disposition, on their part, to compel their "posterity" to maintain such a fort. it would only indicate that the supposed welfare of their posterity was one of the motives that induced the original parties to enter into the agreement. when a man says he is building a house for himself and his posterity, he does not mean to be understood as saying that he has any thought of binding them, nor is it to be inferred that he is so foolish as to imagine that he has any right or power to bind them, to live in it. so far as they are concerned, he only means to be understood as saying that his hopes and motives, in building it, are that they, or at least some of them, may find it for their happiness to live in it. so when a man says he is planting a tree for himself and his posterity, he does not mean to be understood as saying that he has any thought of compelling them, nor is it to be inferred that he is such a simpleton as to imagine that he has any right or power to compel them, to eat the fruit. so far as they are concerned, he only means to say that his hopes and motives, in planting the tree, are that its fruit may be agreeable to them. so it was with those who originally adopted the constitution. whatever may have been their personal intentions, the legal meaning of their language, so far as their "posterity" was concerned, simply was, that their hopes and motives, in entering into the agreement, were that it might prove useful and acceptable to their posterity; that it might promote their union, safety, tranquility, and welfare; and that it might tend "to secure to them the blessings of liberty." the language does not assert nor at all imply, any right, power, or disposition, on the part of the original parties to the agreement, to compel their "posterity" to live under it. if they had intended to bind their posterity to live under it, they should have said that their object was, not "to secure to them the blessings of liberty," but to make slaves of them; for if their "posterity" are bound to live under it, they are nothing less than the slaves of their foolish, tyrannical, and dead grandfathers. it cannot be said that the constitution formed "the people of the united states," for all time, into a corporation. it does not speak of "the people" as a corporation, but as individuals. a corporation does not describe itself as "we," nor as "people," nor as "ourselves." nor does a corporation, in legal language, have any "posterity." it supposes itself to have, and speaks of itself as having, perpetual existence, as a single individuality. moreover, no body of men, existing at any one time, have the power to create a perpetual corporation. a corporation can become practically perpetual only by the voluntary accession of new members, as the old ones die off. but for this voluntary accession of new members, the corporation necessarily dies with the death of those who originally composed it. legally speaking, therefore, there is, in the constitution, nothing that professes or attempts to bind the "posterity" of those who established it. if, then, those who established the constitution, had no power to bind, and did not attempt to bind, their posterity, the question arises, whether their posterity have bound themselves. if they have done so, they can have done so in only one or both of these two ways, viz., by voting, and paying taxes. ii. let us consider these two matters, voting and tax paying, separately. and first of voting. all the voting that has ever taken place under the constitution, has been of such a kind that it not only did not pledge the whole people to support the constitution, but it did not even pledge any one of them to do so, as the following considerations show. 1. in the very nature of things, the act of voting could bind nobody but the actual voters. but owing to the property qualifications required, it is probable that, during the first twenty or thirty years under the constitution, not more than one-tenth, fifteenth, or perhaps twentieth of the whole population (black and white, men, women, and minors) were permitted to vote. consequently, so far as voting was concerned, not more than one-tenth, fifteenth, or twentieth of those then existing, could have incurred any obligation to support the constitution. at the present time, it is probable that not more than one-sixth of the whole population are permitted to vote. consequently, so far as voting is concerned, the other five-sixths can have given no pledge that they will support the constitution. 2. of the one-sixth that are permitted to vote, probably not more than two-thirds (about one-ninth of the whole population) have usually voted. many never vote at all. many vote only once in two, three, five, or ten years, in periods of great excitement. no one, by voting, can be said to pledge himself for any longer period than that for which he votes. if, for example, i vote for an officer who is to hold his office for only a year, i cannot be said to have thereby pledged myself to support the government beyond that term. therefore, on the ground of actual voting, it probably cannot be said that more than one-ninth or one-eighth, of the whole population are usually under any pledge to support the constitution. 3. it cannot be said that, by voting, a man pledges himself to support the constitution, unless the act of voting be a perfectly voluntary one on his part. yet the act of voting cannot properly be called a voluntary one on the part of any very large number of those who do vote. it is rather a measure of necessity imposed upon them by others, than one of their own choice. on this point i repeat what was said in a former number,[a] viz.: "in truth, in the case of individuals, their actual voting is not to be taken as proof of consent, _even for the time being_. on the contrary, it is to be considered that, without his consent having even been asked a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. he sees, too, that other men practice this tyranny over him by the use of the ballot. he sees further, that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. in short, he finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. and he has no other alternative than these two. in self-defence, he attempts the former. his case is analogous to that of a man who has been forced into battle, where he must either kill others, or be killed himself. because, to save his own life in battle, a man attempts to take the lives of his opponents, it is not to be inferred that the battle is one of his own choosing. neither in contests with the ballot--which is a mere substitute for a bullet--because, as his only chance of self-preservation, a man uses a ballot, is it to be inferred that the contest is one into which he voluntarily entered; that he voluntarily set up all his own natural rights, as a stake against those of others, to be lost or won by the mere power of numbers. on the contrary, it is to be considered that, in an exigency into which he had been forced by others, and in which no other means of self-defence offered, he, as a matter of necessity, used the only one that was left to him. "doubtless the most miserable of men, under the most oppressive government in the world, if allowed the ballot, would use it, if they could see any chance of thereby meliorating their condition. but it would not, therefore, be a legitimate inference that the government itself, that crushes them, was one which they had voluntarily set up, or even consented to. "therefore, a man's voting under the constitution of the united states, is not to be taken as evidence that he ever freely assented to the constitution, _even for the time being_. consequently we have no proof that any very large portion, even of the actual voters of the united states, ever really and voluntarily consented to the constitution, _even for the time being_. nor can we ever have such proof, until every man is left perfectly free to consent, or not, without thereby subjecting himself or his property to be disturbed or injured by others." as we can have no legal knowledge as to who votes from choice, and who from the necessity thus forced upon him, we can have no legal knowledge, as to any particular individual, that he voted from choice; or, consequently, that by voting, he consented, or pledged himself, to support the government. legally speaking, therefore, the act of voting utterly fails to pledge _any one_ to support the government. it utterly fails to prove that the government rests upon the voluntary support of anybody. on general principles of law and reason, it cannot be said that the government has any voluntary supporters at all, until it can be distinctly shown who its voluntary supporters are. 4. as taxation is made compulsory on all, whether they vote or not, a large proportion of those who vote, no doubt do so to prevent their own money being used against themselves; when, in fact, they would have gladly abstained from voting, if they could thereby have saved themselves from taxation alone, to say nothing of being saved from all the other usurpations and tyrannies of the government. to take a man's property without his consent, and then to infer his consent because he attempts, by voting, to prevent that property from being used to his injury, is a very insufficient proof of his consent to support the constitution. it is, in fact, no proof at all. and as we can have no legal knowledge as to who the particular individuals are, if there are any, who are willing to be taxed for the sake of voting, we can have no legal knowledge that any particular individual consents to be taxed for the sake of voting; or, consequently, consents to support the constitution. 5. at nearly all elections, votes are given for various candidates for the same office. those who vote for the unsuccessful candidates cannot properly be said to have voted to sustain the constitution. they may, with more reason, be supposed to have voted, not to support the constitution, but specially to prevent the tyranny which they anticipate the successful candidate intends to practice upon them under color of the constitution; and therefore may reasonably be supposed to have voted against the constitution itself. this supposition is the more reasonable, inasmuch as such voting is the only mode allowed to them of expressing their dissent to the constitution. 6. many votes are usually given for candidates who have no prospect of success. those who give such votes may reasonably be supposed to have voted as they did, with a special intention, not to support, but to obstruct the execution of, the constitution; and, therefore, against the constitution itself. 7. as all the different votes are given secretly (by secret ballot), there is no legal means of knowing, from the votes themselves, who votes for, and who against, the constitution. therefore, voting affords no legal evidence that any particular individual supports the constitution. and where there can be no legal evidence that any particular individual supports the constitution, it cannot legally be said that anybody supports it. it is clearly impossible to have any legal proof of the intentions of large numbers of men, where there can be no legal proof of the intentions of any particular one of them. 8. there being no legal proof of any man's intentions, in voting, we can only conjecture them. as a conjecture, it is probable, that a very large proportion of those who vote, do so on this principle, viz., that if, by voting, they could but get the government into their own hands (or that of their friends), and use its powers against their opponents, they would then willingly support the constitution; but if their opponents are to have the power, and use it against them, then they would _not_ willingly support the constitution. in short, men's voluntary support of the constitution is doubtless, in most cases, wholly contingent upon the question whether, by means of the constitution, they can make themselves masters, or are to be made slaves. such contingent consent as that is, in law and reason, no consent at all. 9. as everybody who supports the constitution by voting (if there are any such) does so secretly (by secret ballot), and in a way to avoid all personal responsibility for the act of his agents or representatives, it cannot legally or reasonably be said that anybody at all supports the constitution by voting. no man can reasonably or legally be said to do such a thing as to assent to, or support, the constitution, _unless he does it openly, and in a way to make himself personally responsible for the acts of his agents, so long as they act within the limits of the power he delegates to them_. 10. as all voting is secret (by secret ballot), and as all secret governments are necessarily only secret bands of robbers, tyrants, and murderers, the general fact that our government is practically carried on by means of such voting, only proves that there is among us a secret band of robbers, tyrants and murderers, whose purpose is to rob, enslave, and, so far as necessary to accomplish their purposes, murder, the rest of the people. the simple fact of the existence of such a band does nothing towards proving that "the people of the united states," or any one of them, voluntarily supports the constitution. for all the reasons that have now been given, voting furnishes no legal evidence as to who the particular individuals are (if there are any), who voluntarily support the constitution. it therefore furnishes no legal evidence that anybody supports it voluntarily. so far, therefore, as voting is concerned, the constitution, legally speaking, has no supporters at all. and, as matter of fact, there is not the slightest probability that the constitution has a single bona fide supporter in the country. that is to say, there is not the slightest probability that there is a single man in the country, who both understands what the constitution really is, _and sincerely supports it for what it really is_. the ostensible supporters of the constitution, like the ostensible supporters of most other governments, are made up of three classes, viz.: 1. knaves, a numerous and active class, who see in the government an instrument which they can use for their own aggrandizement or wealth. 2. dupes--a large class, no doubt--each of whom, because he is allowed one voice out of millions in deciding what he may do with his own person and his own property, and because he is permitted to have the same voice in robbing, enslaving, and murdering others, that others have in robbing, enslaving, and murdering himself, is stupid enough to imagine that he is a "free man," a "sovereign"; that this is "a free government"; "a government of equal rights," "the best government on earth,"[b] and such like absurdities. 3. a class who have some appreciation of the evils of government, but either do not see how to get rid of them, or do not choose to so far sacrifice their private interests as to give themselves seriously and earnestly to the work of making a change. iii. the payment of taxes, being compulsory, of course furnishes no evidence that any one voluntarily supports the constitution. 1. it is true that the _theory_ of our constitution is, that all taxes are paid voluntarily; that our government is a mutual insurance company, voluntarily entered into by the people with each other; that each man makes a free and purely voluntary contract with all others who are parties to the constitution, to pay so much money for so much protection, the same as he does with any other insurance company; and that he is just as free not to be protected, and not to pay tax, as he is to pay a tax, and be protected. but this theory of our government is wholly different from the practical fact. the fact is that the government, like a highwayman, says to a man: "your money, or your life." and many, if not most, taxes are paid under the compulsion of that threat. the government does not, indeed, waylay a man in a lonely place, spring upon him from the roadside, and, holding a pistol to his head, proceed to rifle his pockets. but the robbery is none the less a robbery on that account; and it is far more dastardly and shameful. the highwayman takes solely upon himself the responsibility, danger, and crime of his own act. he does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. he does not pretend to be anything but a robber. he has not acquired impudence enough to profess to be merely a "protector," and that he takes men's money against their will, merely to enable him to "protect" those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. he is too sensible a man to make such professions as these. furthermore, having taken your money, he leaves you, as you wish him to do. he does not persist in following you on the road, against your will; assuming to be your rightful "sovereign," on account of the "protection" he affords you. he does not keep "protecting" you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. he is too much of a gentleman to be guilty of such impostures, and insults, and villainies as these. in short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave. the proceedings of those robbers and murderers, who call themselves "the government," are directly the opposite of these of the single highwayman. in the first place, they do not, like him, make themselves individually known; or, consequently, take upon themselves personally the responsibility of their acts. on the contrary, they secretly (by secret ballot) designate some one of their number to commit the robbery in their behalf, while they keep themselves practically concealed. they say to the person thus designated: go to a---b----, and say to him that "the government" has need of money to meet the expenses of protecting him and his property. if he presumes to say that he has never contracted with us to protect him, and that he wants none of our protection, say to him that that is our business, and not his; that we _choose_ to protect him, whether he desires us to do so or not; and that we demand pay, too, for protecting him. if he dares to inquire who the individuals are, who have thus taken upon themselves the title of "the government," and who assume to protect him, and demand payment of him, without his having ever made any contract with them, say to him that that, too, is our business, and not his; that we do not _choose_ to make ourselves _individually_ known to him; that we have secretly (by secret ballot) appointed you our agent to give him notice of our demands, and, if he complies with them, to give him, in our name, a receipt that will protect him against any similar demand for the present year. if he refuses to comply, seize and sell enough of his property to pay not only our demands, but all your own expenses and trouble beside. if he resists the seizure of his property, call upon the bystanders to help you (doubtless some of them will prove to be members of our band). if, in defending his property, he should kill any of our band who are assisting you, capture him at all hazards; charge him (in one of our courts) with murder; convict him, and hang him. if he should call upon his neighbors, or any others who, like him, may be disposed to resist our demands, and they should come in large numbers to his assistance, cry out that they are all rebels and traitors; that "our country" is in danger; call upon the commander of our hired murderers; tell him to quell the rebellion and "save the country," cost what it may. tell him to kill all who resist, though they should be hundreds of thousands; and thus strike terror into all others similarly disposed. see that the work of murder is thoroughly done; that we may have no further trouble of this kind hereafter. when these traitors shall have thus been taught our strength and our determination, they will be good loyal citizens for many years, and pay their taxes without a why or a wherefore. it is under such compulsion as this that taxes, so called, are paid. and how much proof the payment of taxes affords, that the people consent to support "the government," it needs no further argument to show. 2. still another reason why the payment of taxes implies no consent, or pledge, to support the government, is that the taxpayer does not know, and has no means of knowing, who the particular individuals are who compose "the government." to him "the government" is a myth, an abstraction, an incorporeality, with which he can make no contract, and to which he can give no consent, and make no pledge. he knows it only through its pretended agents. "the government" itself he never sees. he knows indeed, by common report, that certain persons, of a certain age, are permitted to vote; and thus to make themselves parts of, or (if they choose) opponents of, the government, for the time being. but who of them do thus vote, and especially how each one votes (whether so as to aid or oppose the government), he does not know; the voting being all done secretly (by secret ballot). who, therefore, practically compose "the government," for the time being, he has no means of knowing. of course he can make no contract with them, give them no consent, and make them no pledge. of necessity, therefore, his paying taxes to them implies, on his part, no contract, consent, or pledge to support them--that is, to support "the government," or the constitution. 3. not knowing who the particular individuals are, who call themselves "the government," the taxpayer does not know whom he pays his taxes to. all he knows is that a man comes to him, representing himself to be the agent of "the government"--that is, the agent of a secret band of robbers and murderers, who have taken to themselves the title of "the government," and have determined to kill everybody who refuses to give them whatever money they demand. to save his life, he gives up his money to this agent. but as this agent does not make his principals individually known to the taxpayer, the latter, after he has given up his money, knows no more who are "the government"--that is, who were the robbers--than he did before. to say, therefore, that by giving up his money to their agent, he entered into a voluntary contract with them, that he pledges himself to obey them, to support them, and to give them whatever money they should demand of him in the future, is simply ridiculous. 4. all political power, as it is called, rests practically upon this matter of money. any number of scoundrels, having money enough to start with, can establish themselves as a "government"; because, with money, they can hire soldiers, and with soldiers extort more money; and also compel general obedience to their will. it is with government, as caesar said it was in war, that money and soldiers mutually supported each other; that with money he could hire soldiers, and with soldiers extort money. so these villains, who call themselves governments, well understand that their power rests primarily upon money. with money they can hire soldiers, and with soldiers extort money. and, when their authority is denied, the first use they always make of money, is to hire soldiers to kill or subdue all who refuse them more money. for this reason, whoever desires liberty, should understand these vital facts, viz.: 1. that every man who puts money into the hands of a "government" (so called), puts into its hands a sword which will be used against himself, to extort more money from him, and also to keep him in subjection to its arbitrary will. 2. that those who will take his money, without his consent, in the first place, will use it for his further robbery and enslavement, if he presumes to resist their demands in the future. 3. that it is a perfect absurdity to suppose that any body of men would ever take a man's money without his consent, for any such object as they profess to take it for, viz., that of protecting him; for why should they wish to protect him, if he does not wish them to do so? to suppose that they would do so, is just as absurd as it would be to suppose that they would take his money without his consent, for the purpose of buying food or clothing for him, when he did not want it. 4. if a man wants "protection," he is competent to make his own bargains for it; and nobody has any occasion to rob him, in order to "protect" him against his will. 5. that the only security men can have for their political liberty, consists in their keeping their money in their own pockets, until they have assurances, perfectly satisfactory to themselves, that it will be used as they wish it to be used, for their benefit, and not for their injury. 6. that no government, so called, can reasonably be trusted for a moment, or reasonably be supposed to have honest purposes in view, any longer than it depends wholly upon voluntary support. these facts are all so vital and so self-evident, that it cannot reasonably be supposed that any one will voluntarily pay money to a "government," for the purpose of securing its protection, unless he first makes an explicit and purely voluntary contract with it for that purpose. it is perfectly evident, therefore, that neither such voting, nor such payment of taxes, as actually takes place, proves anybody's consent, or obligation, to support the constitution. consequently we have no evidence at all that the constitution is binding upon anybody, or that anybody is under any contract or obligation whatever to support it. and nobody is under any obligation to support it. iv. _the constitution not only binds nobody now, but it never did bind anybody._ it never bound anybody, because it was never agreed to by anybody in such a manner as to make it, on general principles of law and reason, binding upon him. it is a general principle of law and reason, that a _written_ instrument binds no one until he has signed it. this principle is so inflexible a one, that even though a man is unable to write his name, he must still "make his mark," before he is bound by a written contract. this custom was established ages ago, when few men could write their names; when a clerk--that is, a man who could write--was so rare and valuable a person, that even if he were guilty of high crimes, he was entitled to pardon, on the ground that the public could not afford to lose his services. even at that time, a written contract must be signed; and men who could not write, either "made their mark," or signed their contracts by stamping their seals upon wax affixed to the parchment on which their contracts were written. hence the custom of affixing seals, that has continued to this time. the law holds, and reason declares, that if a written instrument is not signed, the presumption must be that the party to be bound by it, did not choose to sign it, or to bind himself by it. and law and reason both give him until the last moment, in which to decide whether he will sign it, or not. neither law nor reason requires or expects a man to agree to an instrument, _until it is written_; for until it is written, he cannot know its precise legal meaning. and when it is written, and he has had the opportunity to satisfy himself of its precise legal meaning, he is then expected to decide, and not before, whether he will agree to it or not. and if he does not _then_ sign it, his reason is supposed to be, that he does not choose to enter into such a contract. the fact that the instrument was written for him to sign, or with the hope that he would sign it, goes for nothing. where would be the end of fraud and litigation, if one party could bring into court a written instrument, without any signature, and claim to have it enforced, upon the ground that it was written for another man to sign? that this other man had promised to sign it? that he ought to have signed it? that he had had the opportunity to sign it, if he would? but that he had refused or neglected to do so? yet that is the most that could ever be said of the constitution.[c] the very judges, who profess to derive all their authority from the constitution--from an instrument that nobody ever signed--would spurn any other instrument, not signed, that should be brought before them for adjudication. moreover, a written instrument must, in law and reason, not only be signed, but must also be delivered to the party (or to some one for him), in whose favor it is made, before it can bind the party making it. the signing is of no effect, unless the instrument be also delivered. and a party is at perfect liberty to refuse to deliver a written instrument, after he has signed it. he is as free to refuse to deliver it, as he is to refuse to sign it. the constitution was not only never signed by anybody, but it was never delivered by anybody, or to anybody's agent or attorney. it can therefore be of no more validity as a contract, than can any other instrument, that was never signed or delivered. v. as further evidence of the general sense of mankind, as to the practical necessity there is that all men's _important_ contracts, especially those of a permanent nature, should be both written and signed, the following facts are pertinent. for nearly two hundred years--that is, since 1677--there has been on the statute book of england, and the same, in substance, if not precisely in letter, has been re-enacted, and is now in force, in nearly or quite all the states of this union, a statute, the general object of which is to declare that no action shall be brought to enforce contracts of the more important class, _unless they are put in writing, and signed by the parties to be held chargeable upon them_.[d] the principle of the statute, be it observed, is, not merely that written contracts shall be signed, but also that all contracts, except those specially exempted--generally those that are for small amounts, and are to remain in force but for a short time--_shall be both written and signed_. the reason of the statute, on this point, is, that it is now so easy a thing for men to put their contracts in writing, and sign them, and their failure to do so opens the door to so much doubt, fraud, and litigation, that men who neglect to have their contracts--of any considerable importance--written and signed, ought not to have the benefit of courts of justice to enforce them. and this reason is a wise one; and that experience has confirmed its wisdom and necessity, is demonstrated by the fact that it has been acted upon in england for nearly two hundred years, and has been so nearly universally adopted in this country, and that nobody thinks of repealing it. we all know, too, how careful most men are to have their contracts written and signed, even when this statute does not require it. for example, most men, if they have money due them, of no larger amount than five or ten dollars, are careful to take a note for it. if they buy even a small bill of goods, paying for it at the time of delivery, they take a receipted bill for it. if they pay a small balance of a book account, or any other small debt previously contracted, they take a written receipt for it. furthermore, the law everywhere (probably) in our country, as well as in england, requires that a large class of contracts, such as wills, deeds, etc., shall not only be written and signed, but also sealed, witnessed, and acknowledged. and in the case of married women conveying their rights in real estate, the law, in many states, requires that the women shall be examined separate and apart from their husbands, and declare that they sign their contracts free of any fear or compulsion of their husbands. such are some of the precautions which the laws require, and which individuals--from motives of common prudence, even in cases not required by law--take, to put their contracts in writing, and have them signed, and, to guard against all uncertainties and controversies in regard to their meaning and validity. and yet we have what purports, or professes, or is claimed, to be a contract--the constitution--made eighty years ago, by men who are now all dead, and who never had any power to bind _us_, but which (it is claimed) has nevertheless bound three generations of men, consisting of many millions, and which (it is claimed) will be binding upon all the millions that are to come; but which nobody ever signed, sealed, delivered, witnessed, or acknowledged; and which few persons, compared with the whole number that are claimed to be bound by it, have ever read, or even seen, or ever will read, or see. and of those who ever have read it, or ever will read it, scarcely any two, perhaps no two, have ever agreed, or ever will agree, as to what it means. moreover, this supposed contract, which would not be received in any court of justice sitting under its authority, if offered to prove a debt of five dollars, owing by one man to another, is one by which--_as it is generally interpreted by those who pretend to administer it_--all men, women and children throughout the country, and through all time, surrender not only all their property, but also their liberties, and even lives, into the hands of men who by this supposed contract, are expressly made wholly irresponsible for their disposal of them. and we are so insane, or so wicked, as to destroy property and lives without limit, in fighting to compel men to fulfill a supposed contract, which, inasmuch as it has never been signed by anybody, is, on general principles of law and reason--such principles as we are all governed by in regard to other contracts--the merest waste paper, binding upon nobody, fit only to be thrown into the fire; or, if preserved, preserved only to serve as a witness and a warning of the folly and wickedness of mankind. vi. it is no exaggeration, but a literal truth, to say that, by the constitution--_not as i interpret it, but as it is interpreted by those who pretend to administer it_--the properties, liberties, and lives of the entire people of the united states are surrendered unreservedly into the hands of men who, it is provided by the constitution itself, shall never be "questioned" as to any disposal they make of them. thus the constitution (art. i, sec. 6) provides that, "for any speech or debate (or vote), in either house, they (the senators and representatives) shall not be questioned in any other place." the whole law-making power is given to these senators and representatives (when acting by a two-thirds vote)[e]; and this provision protects them from all responsibility for the laws they make. the constitution also enables them to secure the execution of all their laws, by giving them power to withhold the salaries of, and to impeach and remove, all judicial and executive officers, who refuse to execute them. thus the whole power of the government is in their hands, and they are made utterly irresponsible for the use they make of it. what is this but absolute, irresponsible power? it is no answer to this view of the case to say that these men are under oath to use their power only within certain limits; for what care they, or what should they care, for oaths or limits, when it is expressly provided, by the constitution itself, that they shall never be "questioned," or held to any responsibility whatever, for violating their oaths, or transgressing those limits? neither is it any answer to this view of the case to say that the particular individuals holding this power can be changed once in two or six years; for the power of each set of men is absolute during the term for which they hold it; and when they can hold it no longer, they are succeeded only by men whose power will be equally absolute and irresponsible. neither is it any answer to this view of the case to say that the men holding this absolute, irresponsible power, must be men chosen by the people (or portions of them) to hold it. a man is none the less a slave because he is allowed to choose a new master once in a term of years. neither are a people any the less slaves because permitted periodically to choose new masters. what makes them slaves is the fact that they now are, and are always hereafter to be, in the hands of men whose power over them is, and always is to be, absolute and irresponsible.[f] the right of absolute and irresponsible dominion is the right of property, and the right of property is the right of absolute, irresponsible dominion. the two are identical; the one necessarily implying the other. neither can exist without the other. if, therefore, congress have that absolute and irresponsible law-making power, which the constitution--according to their interpretation of it--gives them, it can only be because they own us as property. if they own us as property, they are our masters, and their will is our law. if they do not own us as property, they are not our masters, and their will, as such, is of no authority over us. but these men who claim and exercise this absolute and irresponsible dominion over us, dare not be consistent, and claim either to be our masters, or to own us as property. they say they are only our servants, agents, attorneys, and representatives. but this declaration involves an absurdity, a contradiction. no man can be my servant, agent, attorney, or representative, and be, at the same time, uncontrollable by me, and irresponsible to me for his acts. it is of no importance that i appointed him, and put all power in his hands. if i made him uncontrollable by me, and irresponsible to me, he is no longer my servant, agent, attorney, or representative. if i gave him absolute, irresponsible power over my property, i gave him the property. if i gave him absolute, irresponsible power over myself, i made him my master, and gave myself to him as a slave. and it is of no importance whether i called him master or servant, agent or owner. the only question is, what power did i put into his hands? was it an absolute and irresponsible one? or a limited and responsible one? for still another reason they are neither our servants, agents, attorneys, nor representatives. and that reason is, that we do not make ourselves responsible for their acts. if a man is my servant, agent, or attorney, i necessarily make myself responsible for all his acts done within the limits of the power i have intrusted to him. if i have intrusted him, as my agent, with either absolute power, or any power at all, over the persons or properties of other men than myself, i thereby necessarily make myself responsible to those other persons for any injuries he may do them, so long as he acts within the limits of the power i have granted him. but no individual who may be injured in his person or property, by acts of congress, can come to the individual electors, and hold them responsible for these acts of their so-called agents or representatives. this fact proves that these pretended agents of the people, of everybody, are really the agents of nobody. if, then, nobody is individually responsible for the acts of congress, the members of congress are nobody's agents. and if they are nobody's agents, they are themselves individually responsible for their own acts, and for the acts of all whom they employ. and the authority they are exercising is simply their own individual authority; and, by the law of nature--the highest of all laws--anybody injured by their acts, anybody who is deprived by them of his property or his liberty, has the same right to hold them individually responsible, that he has to hold any other trespasser individually responsible. he has the same right to resist them, and their agents, that he has to resist any other trespassers. vii. it is plain, then, that on general principles of law and reason--such principles as we all act upon in courts of justice and in common life--the constitution is no contract; that it binds nobody, and never did bind anybody; and that all those who pretend to act by its authority, are really acting without any legitimate authority at all; that, on general principles of law and reason, they are mere usurpers, and that everybody not only has the right, but is morally bound, to treat them as such. if the people of this country wish to maintain such a government as the constitution describes, there is no reason in the world why they should not sign the instrument itself, and thus make known their wishes in an open, authentic manner; in such manner as the common sense and experience of mankind have shown to be reasonable and necessary in such cases; _and in such manner as to make themselves (as they ought to do) individually responsible for the acts of the government_. but the people have never been asked to sign it. and the only reason why they have never been asked to sign it, has been that it has been known that they never would sign it; that they were neither such fools nor knaves as they must needs have been to be willing to sign it; that (at least as it has been practically interpreted) it is not what any sensible and honest man wants for himself; nor such as he has any right to impose upon others. it is, to all moral intents and purposes, as destitute of obligation as the compacts which robbers and thieves and pirates enter into with each other, but never sign. if any considerable number of the people believe the constitution to be good, why do they not sign it themselves, and make laws for, and administer them upon, each other; leaving all other persons (who do not interfere with them) in peace? until they have tried the experiment for themselves, how can they have the face to impose the constitution upon, or even to recommend it to, others? plainly the reason for such absurd and inconsistent conduct is that they want the constitution, not solely for any honest or legitimate use it can be of to themselves or others, but for the dishonest and illegitimate power it gives them over the persons and properties of others. but for this latter reason, all their eulogiums on the constitution, all their exhortations, and all their expenditures of money and blood to sustain it, would be wanting. viii. the constitution itself, then, being of no authority, on what authority does our government practically rest? on what ground can those who pretend to administer it, claim the right to seize men's property, to restrain them of their natural liberty of action, industry, and trade, and to kill all who deny their authority to dispose of men's properties, liberties, and lives at their pleasure or discretion? the most they can say, in answer to this question, is, that some half, two-thirds, or three-fourths, of the male adults of the country have a _tacit understanding_ that they will maintain a government under the constitution; that they will select, by ballot, the persons to administer it; and that those persons who may receive a majority, or a plurality, of their ballots, shall act as their representatives, and administer the constitution in their name, and by their authority. but this tacit understanding (admitting it to exist) cannot at all justify the conclusion drawn from it. a tacit understanding between a, b, and c, that they will, by ballot, depute d as their agent, to deprive me of my property, liberty, or life, cannot at all authorize d to do so. he is none the less a robber, tyrant, and murderer, because he claims to act as their agent, than he would be if he avowedly acted on his own responsibility alone. neither am i bound to recognize him as their agent, nor can he legitimately claim to be their agent, when he brings no _written_ authority from them accrediting him as such. i am under no obligation to take his word as to who his principals may be, or whether he has any. bringing no credentials, i have a right to say he has no such authority even as he claims to have: and that he is therefore intending to rob, enslave, or murder me on his own account. this tacit understanding, therefore, among the voters of the country, amounts to nothing as an authority to their agents. neither do the ballots by which they select their agents, avail any more than does their tacit understanding; for their ballots are given in secret, and therefore in a way to avoid any personal responsibility for the acts of their agents. no body of men can be said to authorize a man to act as their agent, to the injury of a third person, unless they do it in so open and authentic a manner as to make themselves personally responsible for his acts. none of the voters in this country appoint their political agents in any open, authentic manner, or in any manner to make themselves responsible for their acts. therefore these pretended agents cannot legitimately claim to be really agents. somebody must be responsible for the acts of these pretended agents; and if they cannot show any open and authentic credentials from their principals, they cannot, in law or reason, be said to have any principals. the maxim applies here, that what does not appear, does not exist. if they can show no principals, they have none. but even these pretended agents do not themselves know who their pretended principals are. these latter act in secret; for acting by secret ballot is acting in secret as much as if they were to meet in secret conclave in the darkness of the night. and they are personally as much unknown to the agents they select, as they are to others. no pretended agent therefore can ever know by whose ballots he is selected, or consequently who his real principals are. not knowing who his principals are, he has no right to say that he has any. he can, at most, say only that he is the agent of a secret band of robbers and murderers, who are bound by that faith which prevails among confederates in crime, to stand by him, if his acts, done in their name, shall be resisted. men honestly engaged in attempting to establish justice in the world, have no occasion thus to act in secret; or to appoint agents to do acts for which they (the principals) are not willing to be responsible. the secret ballot makes a secret government; and a secret government is a secret band of robbers and murderers. open despotism is better than this. the single despot stands out in the face of all men, and says: i am the state: my will is law: i am your master: i take the responsibility of my acts: the only arbiter i acknowledge is the sword: if any one denies my right, let him try conclusions with me. but a secret government is little less than a government of assassins. under it, a man knows not who his tyrants are, until they have struck, and perhaps not then. he may _guess_, beforehand, as to some of his immediate neighbors. but he really knows nothing. the man to whom he would most naturally fly for protection, may prove an enemy, when the time of trial comes. this is the kind of government we have; and it is the only one we are likely to have, until men are ready to say: we will consent to no constitution, except such an one as we are neither ashamed nor afraid to sign; and we will authorize no government to do anything in our name which we are not willing to be personally responsible for. ix. what is the motive to the secret ballot? this, and only this: like other confederates in crime, those who use it are not friends, but enemies; and they are afraid to be known, and to have their individual doings known, even to each other. they can contrive to bring about a sufficient understanding to enable them to act in concert against other persons; but beyond this they have no confidence, and no friendship, among themselves. in fact, they are engaged quite as much in schemes for plundering each other, as in plundering those who are not of them. and it is perfectly well understood among them that the strongest party among them will, in certain contingencies, murder each other by the hundreds of thousands (as they lately did do) to accomplish their purposes against each other. hence they dare not be known, and have their individual doings known, even to each other. and this is avowedly the only reason for the ballot: for a secret government; a government by secret bands of robbers and murderers. and we are insane enough to call this liberty! to be a member of this secret band of robbers and murderers is esteemed a privilege and an honor! without this privilege, a man is considered a slave; but with it a free man! with it he is considered a free man, because he has the same power to secretly (by secret ballot) procure the robbery, enslavement, and murder of another man, and that other man has to procure his robbery, enslavement, and murder. and this they call equal rights! if any number of men, many or few, claim the right to govern the people of this country, let them make and sign an open compact with each other to do so. let them thus make themselves individually known to those whom they propose to govern. and let them thus openly take the legitimate responsibility of their acts. how many of those who now support the constitution, will ever do this? how many will ever dare openly proclaim their right to govern? or take the legitimate responsibility of their acts? not one! x. it is obvious that, on general principles of law and reason, there exists no such thing as a government created by, or resting upon, any consent, compact, or agreement of "the people of the united states" with each other; that the only visible, tangible, responsible government that exists, is that of a few individuals only, who act in concert, and call themselves by the several names of senators, representatives, presidents, judges, marshals, treasurers, collectors, generals, colonels, captains, etc., etc. on general principles of law and reason, it is of no importance whatever that those few individuals profess to be the agents and representatives of "the people of the united states"; since they can show no credentials from the people themselves; they were never appointed as agents or representatives in any open, authentic manner; they do not themselves know, and have no means of knowing, and cannot prove, who their principals (as they call them) are individually; and consequently cannot, in law or reason, be said to have any principals at all. it is obvious, too, that if these alleged principals ever did appoint these pretended agents, or representatives, they appointed them secretly (by secret ballot), and in a way to avoid all personal responsibility for their acts; that, at most, these alleged principals put these pretended agents forward for the most criminal purposes, viz: to plunder the people of their property, and restrain them of their liberty; and that the only authority that these alleged principals have for so doing, is simply a _tacit understanding_ among themselves that they will imprison, shoot, or hang every man who resists the exactions and restraints which their agents or representatives may impose upon them. thus it is obvious that the only visible, tangible government we have is made up of these professed agents or representatives of a secret band of robbers and murderers, who, to cover up, or gloss over, their robberies and murders, have taken to themselves the title of "the people of the united states"; and who, on the pretense of being "the people of the united states," assert their right to subject to their dominion, and to control and dispose of at their pleasure, all property and persons found in the united states. xi. on general principles of law and reason, the oaths which these pretended agents of the people take "to support the constitution," are of no validity or obligation. and why? for this, if for no other reason, viz., _that they are given to nobody_. there is no privity (as the lawyers say)--that is, no mutual recognition, consent, and agreement--between those who take these oaths, and any other persons. if i go upon boston common, and in the presence of a hundred thousand people, men, women and children, with whom i have no contract on the subject, take an oath that i will enforce upon them the laws of moses, of lycurgus, of solon, of justinian, or of alfred, that oath is, on general principles of law and reason, of no obligation. it is of no obligation, not merely because it is intrinsically a criminal one, _but also because it is given to nobody_, and consequently pledges my faith to nobody. it is merely given to the winds. it would not alter the case at all to say that, among these hundred thousand persons, in whose presence the oath was taken, there were two, three, or five thousand male adults, who had _secretly_--by secret ballot, and in a way to avoid making themselves _individually_ known to me, or to the remainder of the hundred thousand--designated me as their agent to rule, control, plunder, and, if need be, murder, these hundred thousand people. the fact that they had designated me secretly, and in a manner to prevent my knowing them individually, prevents all privity between them and me; and consequently makes it impossible that there can be any contract, or pledge of faith, on my part towards them; for it is impossible that i can pledge my faith, in any legal sense, to a man whom i neither know, nor have any means of knowing, individually. so far as i am concerned, then, these two, three, or five thousand persons are a secret band of robbers and murderers, who have secretly, and in a way to save themselves from all responsibility for my acts, designated me as their agent; and have, through some other agent, or pretended agent, made their wishes known to me. but being, nevertheless, individually unknown to me, and having no open, authentic contract with me, my oath is, on general principles of law and reason, of no validity as a pledge of faith to them. and being no pledge of faith to them, it is no pledge of faith to anybody. it is mere idle wind. at most, it is only a pledge of faith to an unknown band of robbers and murderers, whose instrument for plundering and murdering other people, i thus publicly confess myself to be. and it has no other obligation than a similar oath given to any other unknown body of pirates, robbers, and murderers. for these reasons the oaths taken by members of congress, "to support the constitution," are, on general principles of law and reason, of no validity. they are not only criminal in themselves, and therefore void; but they are also void for the further reason _that they are given to nobody_. it cannot be said that, in any legitimate or legal sense, they are given to "the people of the united states"; because neither the whole, nor any large proportion of the whole, people of the united states ever, either openly or secretly, appointed or designated these men as their agents to carry the constitution into effect. the great body of the people--that is, men, women and children--were never asked, or even permitted, to signify, in any _formal_ manner, either openly or secretly, their choice or wish on the subject. the most that these members of congress can say, in favor of their appointment, is simply this: each one can say for himself: i have evidence satisfactory to myself, that there exists, scattered throughout the country, a band of men, having a tacit understanding with each other, and calling themselves "the people of the united states," whose general purposes are to control and plunder each other, and all other persons in the country, and, so far as they can, even in neighboring countries; and to kill every man who shall attempt to defend his person and property against their schemes of plunder and dominion. who these men are, _individually_, i have no certain means of knowing, for they sign no papers, and give no open, authentic evidence of their individual membership. they are not known individually even to each other. they are apparently as much afraid of being individually known to each other, as of being known to other persons. hence they ordinarily have no mode either of exercising, or of making known, their individual membership, otherwise than by giving their votes secretly for certain agents to do their will. but although these men are individually unknown, both to each other and to other persons, it is generally understood in the country that none but male persons, of the age of twenty-one years and upwards, can be members. it is also generally understood that _all_ male persons, born in the country, having certain complexions, and (in some localities) certain amounts of property, and (in certain cases) even persons of foreign birth, are _permitted_ to be members. but it appears that usually not more than one half, two-thirds, or, in some cases, three-fourths, of all who are thus permitted to become members of the band, ever exercise, or consequently prove, their actual membership, in the only mode in which they ordinarily can exercise or prove it, viz., by giving their votes secretly for the officers or agents of the band. the number of these secret votes, so far as we have any account of them, varies greatly from year to year, thus tending to prove that the band, instead of being a permanent organization, is a merely _pro tempore_ affair with those who choose to act with it for the time being. the gross number of these secret votes, or what purports to be their gross number, in different localities, is occasionally published. whether these reports are accurate or not, we have no means of knowing. it is generally supposed that great frauds are often committed in depositing them. they are understood to be received and counted by certain men, who are themselves appointed for that purpose by the same secret process by which all other officers and agents of the band are selected. according to the reports of these receivers of votes (for whose accuracy or honesty, however, i cannot vouch), and according to my best knowledge of the whole number of male persons "in my district," who (it is supposed) were permitted to vote, it would appear that one-half, two-thirds or three-fourths actually did vote. who the men were, individually, who cast these votes, i have no knowledge, for the whole thing was done secretly. but of the secret votes thus given for what they call a "member of congress," the receivers reported that i had a majority, or at least a larger number than any other one person. and it is only by virtue of such a designation that i am now here to act in concert with other persons similarly selected in other parts of the country. it is understood among those who sent me here, that all the persons so selected, will, on coming together at the city of washington, take an oath in each other's presence "to support the constitution of the united states." by this is meant a certain paper that was drawn up eighty years ago. it was never signed by anybody, and apparently has no obligation, and never had any obligation, as a contract. in fact, few persons ever read it, and doubtless much the largest number of those who voted for me and the others, never even saw it, or now pretend to know what it means. nevertheless, it is often spoken of in the country as "the constitution of the united states"; and for some reason or another, the men who sent me here, seem to expect that i, and all with whom i act, will swear to carry this constitution into effect. i am therefore ready to take this oath, and to co-operate with all others, similarly selected, who are ready to take the same oath. this is the most that any member of congress can say in proof that he has any constituency; that he represents anybody; that his oath "to support the constitution," _is given to anybody_, or pledges his faith to _anybody_. he has no open, written, or other authentic evidence, such as is required in all other cases, that he was ever appointed the agent or representative of anybody. he has no written power of attorney from any single individual. he has no such legal knowledge as is required in all other cases, by which he can identify a single one of those who pretend to have appointed him to represent them. of course his oath, professedly given to them, "to support the constitution," is, on general principles of law and reason, an oath given to nobody. it pledges his faith to nobody. if he fails to fulfil his oath, not a single person can come forward, and say to him, you have betrayed me, or broken faith with me. no one can come forward and say to him: i appointed you my attorney to act for me. i required you to swear that, as my attorney, you would support the constitution. you promised me that you would do so; and now you have forfeited the oath you gave to me. no single individual can say this. no open, avowed, or responsible association, or body of men, can come forward and say to him: we appointed you our attorney, to act for us. we required you to swear that, as our attorney, you would support the constitution. you promised us that you would do so; and now you have forfeited the oath you gave to us. no open, avowed, or responsible association, or body of men, can say this to him; because there is no such association or body of men in existence. if any one should assert that there is such an association, let him prove, if he can, who compose it. let him produce, if he can, any open, written, or other authentic contract, signed or agreed to by these men; forming themselves into an association; making themselves known as such to the world; appointing him as their agent; and making themselves individually, or as an association, responsible for his acts, done by their authority. until all this can be shown, no one can say that, in any legitimate sense, there is any such association; or that he is their agent; or that he ever gave his oath to them; or ever pledged his faith to them. on general principles of law and reason, it would be a sufficient answer for him to say, to all individuals, and all pretended associations of individuals, who should accuse him of a breach of faith to them: i never knew you. where is your evidence that you, either individually or collectively, ever appointed me your attorney? that you ever required me to swear to you, that, as your attorney, i would support the constitution? or that i have now broken any faith i ever pledged to you? you may, or you may not, be members of that secret band of robbers and murderers, who act in secret; appoint their agents by a secret ballot; who keep themselves individually unknown even to the agents they thus appoint; and who, therefore, cannot claim that they have any agents; or that any of their pretended agents ever gave his oath, or pledged his faith, to them. i repudiate you altogether. my oath was given to others, with whom you have nothing to do; or it was idle wind, given only to the idle winds. begone! xii. for the same reasons, the oaths of all the other pretended agents of this secret band of robbers and murderers are, on general principles of law and reason, equally destitute of obligation. they are given to nobody; but only to the winds. the oaths of the tax-gatherers and treasurers of the band, are, on general principles of law and reason, of no validity. if any tax gatherer, for example, should put the money he receives into his own pocket, and refuse to part with it, the members of this band could not say to him: you collected that money as our agent, and for our uses; and you swore to pay it over to us, or to those we should appoint to receive it. you have betrayed us, and broken faith with us. it would be a sufficient answer for him to say to them: i never knew you. you never made yourselves individually known to me. i never gave my oath to you, as individuals. you may, or you may not, be members of that secret band, who appoint agents to rob and murder other people; but who are cautious not to make themselves individually known, either to such agents, or to those whom their agents are commissioned to rob. if you are members of that band, you have given me no proof that you ever commissioned me to rob others for your benefit. i never knew you, as individuals, and of course never promised you that i would pay over to you the proceeds of my robberies. i committed my robberies on my own account, and for my own profit. if you thought i was fool enough to allow you to keep yourselves concealed, and use me as your tool for robbing other persons; or that i would take all the personal risk of the robberies, and pay over the proceeds to you, you were particularly simple. as i took all the risk of my robberies, i propose to take all the profits. begone! you are fools, as well as villains. if i gave my oath to anybody, i gave it to other persons than you. but i really gave it to nobody. i only gave it to the winds. it answered my purposes at the time. it enabled me to get the money i was after, and now i propose to keep it. if you expected me to pay it over to you, you relied only upon that honor that is said to prevail among thieves. you now understand that that is a very poor reliance. i trust you may become wise enough to never rely upon it again. if i have any duty in the matter, it is to give back the money to those from whom i took it; not to pay it over to such villains as you. xiii. on general principles of law and reason, the oaths which foreigners take, on coming here, and being "naturalized" (as it is called), are of no validity. they are necessarily given to nobody; because there is no open, authentic association, to which they can join themselves; or to whom, as individuals, they can pledge their faith. no such association, or organization, as "the people of the united states," having ever been formed by any open, written, authentic, or voluntary contract, there is, on general principles of law and reason, no such association, or organization, in existence. and all oaths that purport to be given to such an association are necessarily given only to the winds. they cannot be said to be given to any man, or body of men, as individuals, because no man, or body of men, can come forward _with any proof_ that the oaths were given to them, as individuals, or to any association of which they are members. to say that there is a tacit understanding among a portion of the male adults of the country, that they will call themselves "the people of the united states," and that they will act in concert in subjecting the remainder of the people of the united states to their dominion; but that they will keep themselves personally concealed by doing all their acts secretly, is wholly insufficient, on general principles of law and reason, to prove the existence of any such association, or organization, as "the people of the united states"; or consequently to prove that the oaths of foreigners were given to any such association. xiv. on general principles of law and reason, all the oaths which, since the war, have been given by southern men, that they will obey the laws of congress, support the union, and the like, are of no validity. such oaths are invalid, not only because they were extorted by military power, and threats of confiscation, and because they are in contravention of men's natural right to do as they please about supporting the government, _but also because they were given to nobody_. they were nominally given to "the united states." but being nominally given to "the united states," they were necessarily given to nobody, because, on general principles of law and reason, there were no "united states," to whom the oaths could be given. that is to say, there was no open, authentic, avowed, legitimate association, corporation, or body of men, known as "the united states," or as "the people of the united states," to whom the oaths could have been given. if anybody says there was such a corporation, let him state who were the individuals that composed it, and how and when they became a corporation. were mr. a, mr. b, and mr. c members of it? if so, where are their signatures? where the evidence of their membership? where the record? where the open, authentic proof? there is none. therefore, in law and reason, there was no such corporation. on general principles of law and reason, every corporation, association, or organized body of men, having a legitimate corporate existence, and legitimate corporate rights, must consist of certain known individuals, who can prove, by legitimate and reasonable evidence, their membership. but nothing of this kind can be proved in regard to the corporation, or body of men, who call themselves "the united states." not a man of them, in all the northern states, can prove by any legitimate evidence, such as is required to prove membership in other legal corporations, that he himself, or any other man whom he can name, is a member of any corporation or association called "the united states," or "the people of the united states," or, consequently, that there is any such corporation. and since no such corporation can be proved to exist, it cannot of course be proved that the oaths of southern men were given to any such corporation. the most that can be claimed is that the oaths were given to a secret band of robbers and murderers, who called themselves "the united states," and extorted those oaths. but that certainly is not enough to prove that the oaths are of any obligation. xv. on general principles of law and reason, the oaths of soldiers, that they will serve a given number of years, that they will obey the orders of their superior officers, that they will bear true allegiance to the government, and so forth, are of no obligation. independently of the criminality of an oath, that, for a given number of years, he will kill all whom he may be commanded to kill, without exercising his own judgment or conscience as to the justice or necessity of such killing, there is this further reason why a soldier's oath is of no obligation, viz., that, like all the other oaths that have now been mentioned, _it is given to nobody_. there being, in no legitimate sense, any such corporation, or nation, as "the united states," nor, consequently, in any legitimate sense, any such government as "the government of the united states," a soldier's oath given to, or contract made with, such nation or government, is necessarily an oath given to, or a contract made with, nobody. consequently such oath or contract can be of no obligation. xvi. on general principles of law and reason, the treaties, so called, which purport to be entered into with other nations, by persons calling themselves ambassadors, secretaries, presidents, and senators of the united states, in the name, and in behalf, of "the people of the united states," are of no validity. these so-called ambassadors, secretaries, presidents, and senators, who claim to be the agents of "the people of the united states," for making these treaties, can show no open, written, or other authentic evidence that either the whole "people of the united states," or any other open, avowed, responsible body of men, calling themselves by that name, ever authorized these pretended ambassadors and others to make treaties in the name of, or binding upon any one of, "the people of the united states," or any other open, avowed, responsible body of men, calling themselves by that name, ever authorized these pretended ambassadors, secretaries, and others, in their name and behalf, to recognize certain other persons, calling themselves emperors, kings, queens, and the like, as the rightful rulers, sovereigns, masters, or representatives of the different peoples whom they assume to govern, to represent, and to bind. the "nations," as they are called, with whom our pretended ambassadors, secretaries, presidents, and senators profess to make treaties, are as much myths as our own. on general principles of law and reason, there are no such "nations." that is to say, neither the whole people of england, for example, nor any open, avowed, responsible body of men, calling themselves by that name, ever, by any open, written, or other authentic contract with each other, formed themselves into any bona fide, legitimate association or organization, or authorized any king, queen, or other representative to make treaties in their name, or to bind them, either individually, or as an association, by such treaties. our pretended treaties, then, being made with no legitimate or bona fide nations, or representatives of nations, and being made, on our part, by persons who have no legitimate authority to act for us, have intrinsically no more validity than a pretended treaty made by the man in the moon with the king of the pleiades. xvii. on general principles of law and reason, debts contracted in the name of "the united states," or of "the people of the united states," are of no validity. it is utterly absurd to pretend that debts to the amount of twenty-five hundred millions of dollars are binding upon thirty-five or forty millions of people, when there is not a particle of legitimate evidence--such as would be required to prove a private debt--that can be produced against any one of them, that either he, or his properly authorized attorney, ever contracted to pay one cent. certainly, neither the whole people of the united states, nor any number of them, ever separately or individually contracted to pay a cent of these debts. certainly, also, neither the whole people of the united states, nor any number of them, ever, by any open, written, or other authentic and voluntary contract, united themselves as a firm, corporation, or association, by the name of "the united states," or "the people of the united states," and authorized their agents to contract debts in their name. certainly, too, there is in existence no such firm, corporation, or association as "the united states," or "the people of the united states," formed by any open, written, or other authentic and voluntary contract, and having corporate property with which to pay these debts. how, then, is it possible, on any general principle of law or reason, that debts that are binding upon nobody individually, can be binding upon forty millions of people collectively, when, on general and legitimate principles of law and reason, these forty millions of people neither have, nor ever had, any corporate property? never made any corporate or individual contract? and neither have, nor ever had, any corporate existence? who, then, created these debts, in the name of "the united states"? why, at most, only a few persons, calling themselves "members of congress," etc., who pretended to represent "the people of the united states," but who really represented only a secret band of robbers and murderers, who wanted money to carry on the robberies and murders in which they were then engaged; and who intended to extort from the future people of the united states, by robbery and threats of murder (and real murder, if that should prove necessary), the means to pay these debts. this band of robbers and murderers, who were the real principals in contracting these debts, is a secret one, because its members have never entered into any open, written, avowed, or authentic contract, by which they may be individually known to the world, or even to each other. their real or pretended representatives, who contracted these debts in their name, were selected (if selected at all) for that purpose secretly (by secret ballot), and in a way to furnish evidence against none of the principals _individually_; and these principals were really known _individually_ neither to their pretended representatives who contracted these debts in their behalf, nor to those who lent the money. the money, therefore, was all borrowed and lent in the dark; that is, by men who did not see each other's faces, or know each other's names; who could not then, and cannot now, identify each other as principals in the transactions; and who consequently can prove no contract with each other. furthermore, the money was all lent and borrowed for criminal purposes; that is, for purposes of robbery and murder; and for this reason the contracts were all intrinsically void; and would have been so, even though the real parties, borrowers and lenders, had come face to face, and made their contracts openly, in their own proper names. furthermore, this secret band of robbers and murderers, who were the real borrowers of this money, having no legitimate corporate existence, have no corporate property with which to pay these debts. they do indeed pretend to own large tracts of wild lands, lying between the atlantic and pacific oceans, and between the gulf of mexico and the north pole. but, on general principles of law and reason, they might as well pretend to own the atlantic and pacific oceans themselves; or the atmosphere and the sunlight; and to hold them, and dispose of them, for the payment of these debts. having no corporate property with which to pay what purports to be their corporate debts, this secret band of robbers and murderers are really bankrupt. they have nothing to pay with. in fact, they do not propose to pay their debts otherwise than from the proceeds of their future robberies and murders. these are confessedly their sole reliance; and were known to be such by the lenders of the money, at the time the money was lent. and it was, therefore, virtually a part of the contract, that the money should be repaid only from the proceeds of these future robberies and murders. for this reason, if for no other, the contracts were void from the beginning. in fact, these apparently two classes, borrowers and lenders, were really one and the same class. they borrowed and lent money from and to themselves. they themselves were not only part and parcel, but the very life and soul, of this secret band of robbers and murderers, who borrowed and spent the money. individually they furnished money for a common enterprise; taking, in return, what purported to be corporate promises for individual loans. the only excuse they had for taking these so-called corporate promises of, for individual loans by, the same parties, was that they might have some apparent excuse for the future robberies of the band (that is, to pay the debts of the corporation), and that they might also know what shares they were to be respectively entitled to out of the proceeds of their future robberies. finally, if these debts had been created for the most innocent and honest purposes, and in the most open and honest manner, by the real parties to the contracts, these parties could thereby have bound nobody but themselves, and no property but their own. they could have bound nobody that should have come after them, and no property subsequently created by, or belonging to, other persons. xviii. the constitution having never been signed by anybody; and there being no other open, written, or authentic contract between any parties whatever, by virtue of which the united states government, so called, is maintained; and it being well known that none but male persons, of twenty-one years of age and upwards, are allowed any voice in the government; and it being also well known that a large number of these adult persons seldom or never vote at all; and that all those who do vote, do so secretly (by secret ballot), and in a way to prevent their individual votes being known, either to the world, or even to each other; and consequently in a way to make no one openly responsible for the acts of their agents, or representatives,--all these things being known, the questions arise: _who_ compose the real governing power in the country? who are the men, _the responsible men_, who rob us of our property? restrain us of our liberty? subject us to their arbitrary dominion? and devastate our homes, and shoot us down by the hundreds of thousands, if we resist? how shall we find these men? how shall we know them from others? how shall we defend ourselves and our property against them? who, of our neighbors, are members of this secret band of robbers and murderers? how can we know which are _their_ houses, that we may burn or demolish them? which _their_ property, that we may destroy it? which their persons, that we may kill them, and rid the world and ourselves of such tyrants and monsters? these are questions that must be answered, before men can be free; before they can protect themselves against this secret band of robbers and murderers, who now plunder, enslave, and destroy them. the answer to these questions is, that only those who have the will and the power to shoot down their fellow men, are the real rulers in this, as in all other (so-called) civilized countries; for by no others will civilized men be robbed, or enslaved. among savages, mere physical strength, on the part of one man, may enable him to rob, enslave, or kill another man. among barbarians, mere physical strength, on the part of a body of men, disciplined, and acting in concert, though with very little money or other wealth, may, under some circumstances, enable them to rob, enslave, or kill another body of men, as numerous, or perhaps even more numerous, than themselves. and among both savages and barbarians, mere want may sometimes compel one man to sell himself as a slave to another. but with (so-called) civilized peoples, among whom knowledge, wealth, and the means of acting in concert, have become diffused; and who have invented such weapons and other means of defense as to render mere physical strength of less importance; and by whom soldiers in any requisite number, and other instrumentalities of war in any requisite amount, can always be had for money, the question of war, and consequently the question of power, is little else than a mere question of money. as a necessary consequence, those who stand ready to furnish this money, are the real rulers. it is so in europe, and it is so in this country. in europe, the nominal rulers, the emperors and kings and parliaments, are anything but the real rulers of their respective countries. they are little or nothing else than mere tools, employed by the wealthy to rob, enslave, and (if need be) murder those who have less wealth, or none at all. the rothschilds, and that class of money-lenders of whom they are the representatives and agents--men who never think of lending a shilling to their next-door neighbors, for purposes of honest industry, unless upon the most ample security, and at the highest rate of interest--stand ready, at all times, to lend money in unlimited amounts to those robbers and murderers, who call themselves governments, to be expended in shooting down those who do not submit quietly to being robbed and enslaved. they lend their money in this manner, knowing that it is to be expended in murdering their fellow men, for simply seeking their liberty and their rights; knowing also that neither the interest nor the principal will ever be paid, except as it will be extorted under terror of the repetition of such murders as those for which the money lent is to be expended. these money-lenders, the rothschilds, for example, say to themselves: if we lend a hundred millions sterling to the queen and parliament of england, it will enable them to murder twenty, fifty, or a hundred thousand people in england, ireland, or india; and the terror inspired by such wholesale murder, will enable them to keep the whole people of those countries in subjection for twenty, or perhaps fifty, years to come; to control all their trade and industry; and to extort from them large amounts of money, under the name of taxes; and from the wealth thus extorted from them, they (the queen and parliament) can afford to pay us a higher rate of interest for our money than we can get in any other way. or, if we lend this sum to the emperor of austria, it will enable him to murder so many of his people as to strike terror into the rest, and thus enable him to keep them in subjection, and extort money from them, for twenty or fifty years to come. and they say the same in regard to the emperor of russia, the king of prussia, the emperor of france, or any other ruler, so called, who, in their judgment, will be able, by murdering a reasonable portion of his people, to keep the rest in subjection, and extort money from them, for a long time to come, to pay the interest and principal of the money lent him. and why are these men so ready to lend money for murdering their fellow men? solely for this reason, viz., that such loans are considered better investments than loans for purposes of honest industry. they pay higher rates of interest; and it is less trouble to look after them. this is the whole matter. the question of making these loans is, with these lenders, a mere question of pecuniary profit. they lend money to be expended in robbing, enslaving, and murdering their fellow men, solely because, on the whole, such loans pay better than any others. they are no respecters of persons, no superstitious fools, that reverence monarchs. they care no more for a king, or an emperor, than they do for a beggar, except as he is a better customer, and can pay them better interest for their money. if they doubt his ability to make his murders successful for maintaining his power, and thus extorting money from his people in future, they dismiss him as unceremoniously as they would dismiss any other hopeless bankrupt, who should want to borrow money to save himself from open insolvency. when these great lenders of blood-money, like the rothschilds, have loaned vast sums in this way, for purposes of murder, to an emperor or a king, they sell out the bonds taken by them, in small amounts, to anybody, and everybody, who are disposed to buy them at satisfactory prices, to hold as investments. they (the rothschilds) thus soon get back their money, with great profits; and are now ready to lend money in the same way again to any other robber and murderer, called an emperor or a king, who, they think, is likely to be successful in his robberies and murders, and able to pay a good price for the money necessary to carry them on. this business of lending blood-money is one of the most thoroughly sordid, cold-blooded, and criminal that was ever carried on, to any considerable extent, amongst human beings. it is like lending money to slave traders, or to common robbers and pirates, to be repaid out of their plunder. and the men who loan money to governments, so called, for the purpose of enabling the latter to rob, enslave, and murder their people, are among the greatest villains that the world has ever seen. and they as much deserve to be hunted and killed (if they cannot otherwise be got rid of) as any slave traders, robbers, or pirates that ever lived. when these emperors and kings, so-called, have obtained their loans, they proceed to hire and train immense numbers of professional murderers, called soldiers, and employ them in shooting down all who resist their demands for money. in fact, most of them keep large bodies of these murderers constantly in their service, as their only means of enforcing their extortions. there are now, i think, four or five millions of these professional murderers constantly employed by the so-called sovereigns of europe. the enslaved people are, of course, forced to support and pay all these murderers, as well as to submit to all the other extortions which these murderers are employed to enforce. it is only in this way that most of the so-called governments of europe are maintained. these so-called governments are in reality only great bands of robbers and murderers, organized, disciplined, and constantly on the alert. and the so-called sovereigns, in these different governments, are simply the heads, or chiefs, of different bands of robbers and murderers. and these heads or chiefs are dependent upon the lenders of blood-money for the means to carry on their robberies and murders. they could not sustain themselves a moment but for the loans made to them by these blood-money loan-mongers. and their first care is to maintain their credit with them; for they know their end is come, the instant their credit with them fails. consequently the first proceeds of their extortions are scrupulously applied to the payment of the interest on their loans. in addition to paying the interest on their bonds, they perhaps grant to the holders of them great monopolies in banking, like the banks of england, of france, and of vienna; with the agreement that these banks shall furnish money whenever, in sudden emergencies, it may be necessary to shoot down more of their people. perhaps also, by means of tariffs on competing imports, they give great monopolies to certain branches of industry, in which these lenders of blood-money are engaged. they also, by unequal taxation, exempt wholly or partially the property of these loan-mongers, and throw corresponding burdens upon those who are too poor and weak to resist. thus it is evident that all these men, who call themselves by the high-sounding names of emperors, kings, sovereigns, monarchs, most christian majesties, most catholic majesties, high mightinesses, most serene and potent princes, and the like, and who claim to rule "by the grace of god," by "divine right"--that is, by special authority from heaven--are intrinsically not only the merest miscreants and wretches, engaged solely in plundering, enslaving, and murdering their fellow men, but that they are also the merest hangers on, the servile, obsequious, fawning dependents and tools of these blood-money loan-mongers, on whom they rely for the means to carry on their crimes. these loan-mongers, like the rothschilds, laugh in their sleeves, and say to themselves: these despicable creatures, who call themselves emperors, and kings, and majesties, and most serene and potent princes; who profess to wear crowns, and sit on thrones; who deck themselves with ribbons, and feathers, and jewels; and surround themselves with hired flatterers and lickspittles; and whom we suffer to strut around, and palm themselves off, upon fools and slaves, as sovereigns and lawgivers specially appointed by almighty god; and to hold themselves out as the sole fountains of honors, and dignities, and wealth, and power--all these miscreants and imposters know that we make them, and use them; that in us they live, move, and have their being; that we require them (as the price of their positions) to take upon themselves all the labor, all the danger, and all the odium of all the crimes they commit for our profit; and that we will unmake them, strip them of their gewgaws, and send them out into the world as beggars, or give them over to the vengeance of the people they have enslaved, the moment they refuse to commit any crime we require of them, or to pay over to us such share of the proceeds of their robberies as we see fit to demand. xix. now, what is true in europe, is substantially true in this country. the difference is the immaterial one, that, in this country, there is no visible, permanent head, or chief, of these robbers and murderers, who call themselves "the government." that is to say, there is no _one man_, who calls himself the state, or even emperor, king, or sovereign; no one who claims that he and his children rule "by the grace of god," by "divine right," or by special appointment from heaven. there are only certain men, who call themselves presidents, senators, and representatives, and claim to be the authorized agents, _for the time being, or for certain short periods, of all_ "the people of the united states"; but who can show no credentials, or powers of attorney, or any other open, authentic evidence that they are so; and who notoriously are not so; but are really only the agents of a secret band of robbers and murderers, whom they themselves do not know, and have no means of knowing, individually; but who, they trust, will openly or secretly, when the crisis comes, sustain them in all their usurpations and crimes. what is important to be noticed is, that these so-called presidents, senators, and representatives, these pretended agents of all "the people of the united states," the moment their exactions meet with any formidable resistance from any portion of "the people" themselves, are obliged, like their co-robbers and murderers in europe, to fly at once to the lenders of blood money, for the means to sustain their power. and they borrow their money on the same principle, and for the same purpose, viz., to be expended in shooting down all those "people of the united states"--their own constituents and principals, as they profess to call them--who resist the robberies and enslavement which these borrowers of the money are practising upon them. and they expect to repay the loans, if at all, only from the proceeds of the future robberies, which they anticipate it will be easy for them and their successors to perpetrate through a long series of years, upon their pretended principals, if they can but shoot down now some hundreds of thousands of them, and thus strike terror into the rest. perhaps the facts were never made more evident, in any country on the globe, than in our own, that these soulless blood-money loan-mongers are the real rulers; that they rule from the most sordid and mercenary motives; that the ostensible government, the presidents, senators, and representatives, so called, are merely their tools; and that no ideas of, or regard for, justice or liberty had anything to do in inducing them to lend their money for the war. in proof of all this, look at the following facts. nearly a hundred years ago we professed to have got rid of all that religious superstition, inculcated by a servile and corrupt priesthood in europe, that rulers, so called, derived their authority directly from heaven; and that it was consequently a religious duty on the part of the people to obey them. we professed long ago to have learned that governments could rightfully exist only by the free will, and on the voluntary support, of those who might choose to sustain them. we all professed to have known long ago, that the only legitimate objects of government were the maintenance of liberty and justice equally for all. all this we had professed for nearly a hundred years. and we professed to look with pity and contempt upon those ignorant, superstitious, and enslaved peoples of europe, who were so easily kept in subjection by the frauds and force of priests and kings. notwithstanding all this, that we had learned, and known, and professed, for nearly a century, these lenders of blood money had, for a long series of years previous to the war, been the willing accomplices of the slave-holders in perverting the government from the purposes of liberty and justice, to the greatest of crimes. they had been such accomplices _for a purely pecuniary consideration_, to wit, a control of the markets in the south; in other words, the privilege of holding the slave-holders themselves in industrial and commercial subjection to the manufacturers and merchants of the north (who afterwards furnished the money for the war). and these northern merchants and manufacturers, these lenders of blood-money, were willing to continue to be the accomplices of the slave-holders in the future, for the same pecuniary consideration. but the slave-holders, either doubting the fidelity of their northern allies, or feeling themselves strong enough to keep their slaves in subjection without northern assistance, would no longer pay the price which these northern men demanded. and it was to enforce this price in the future--that is, to monopolize the southern markets, to maintain their industrial and commercial control over the south--that these northern manufacturers and merchants lent some of the profits of their former monopolies for the war, in order to secure to themselves the same, or greater, monopolies in the future. these--and not any love of liberty or justice--were the motives on which the money for the war was lent by the north. in short, the north said to the slave-holders: if you will not pay us our price (give us control of your markets) for our assistance against your slaves, we will secure the same price (keep control of your markets) by helping your slaves against you, and using them as our tools for maintaining dominion over you; for the control of your markets we will have, whether the tools we use for that purpose be black or white, and be the cost, in blood and money, what it may. on this principle, and from this motive, and not from any love of liberty, or justice, the money was lent in enormous amounts, and at enormous rates of interest. and it was only by means of these loans that the objects of the war were accomplished. and now these lenders of blood-money demand their pay; and the government, so called, becomes their tool, their servile, slavish, villainous tool, to extort it from the labor of the enslaved people both of the north and the south. it is to be extorted by every form of direct, and indirect, and unequal taxation. not only the nominal debt and interest--enormous as the latter was--are to be paid in full; but these holders of the debt are to be paid still further--and perhaps doubly, triply, or quadruply paid--by such tariffs on imports as will enable our home manufacturers to realize enormous prices for their commodities; also by such monopolies in banking as will enable them to keep control of, and thus enslave and plunder, the industry and trade of the great body of the northern people themselves. in short, the industrial and commercial slavery of the great body of the people, north and south, black and white, is the price which these lenders of blood money demand, and insist upon, and are determined to secure, in return for the money lent for the war. this programme having been fully arranged and systematized, they put their sword into the hands of the chief murderer of the war, and charge him to carry their scheme into effect. and now he, speaking as their organ, says: "_let us have peace_." the meaning of this is: submit quietly to all the robbery and slavery we have arranged for you, and you can have "peace." but in case you resist, the same lenders of blood-money, who furnished the means to subdue the south, will furnish the means again to subdue you. these are the terms on which alone this government, or, with few exceptions, any other, ever gives "peace" to its people. the whole affair, on the part of those who furnished the money, has been, and now is, a deliberate scheme of robbery and murder; not merely to monopolize the markets of the south, but also to monopolize the currency, and thus control the industry and trade, and thus plunder and enslave the laborers, of both north and south. and congress and the president are today the merest tools for these purposes. they are obliged to be, for they know that their own power, as rulers, so-called, is at an end, the moment their credit with the blood-money loan-mongers fails. they are like a bankrupt in the hands of an extortioner. they dare not say nay to any demand made upon them. and to hide at once, if possible, both their servility and their crimes, they attempt to divert public attention, by crying out that they have "abolished slavery!" that they have "saved the country!" that they have "preserved our glorious union!" and that, in now paying the "national debt," as they call it (as if the people themselves, _all of them who are to be taxed for its payment_, had really and voluntarily joined in contracting it), they are simply "maintaining the national honor!" by "maintaining the national honor," they mean simply that they themselves, open robbers and murderers, assume to be the nation, and will keep faith with those who lend them the money necessary to enable them to crush the great body of the people under their feet; and will faithfully appropriate, from the proceeds of their future robberies and murders, enough to pay all their loans, principal and interest. the pretense that the "abolition of slavery" was either a motive or justification for the war, is a fraud of the same character with that of "maintaining the national honor." who, but such usurpers, robbers, and murderers as they, ever established slavery? or what government, except one resting upon the sword, like the one we now have, was ever capable of maintaining slavery? and why did these men abolish slavery? not from any love of liberty in general--not as an act of justice to the black man himself, but only "as a war measure," and because they wanted his assistance, and that of his friends, in carrying on the war they had undertaken for maintaining and intensifying that political, commercial, and industrial slavery, to which they have subjected the great body of the people, both white and black. and yet these imposters now cry out that they have abolished the chattel slavery of the black man--although that was not the motive of the war--as if they thought they could thereby conceal, atone for, or justify that other slavery which they were fighting to perpetuate, and to render more rigorous and inexorable than it ever was before. there was no difference of principle--but only of degree--between the slavery they boast they have abolished, and the slavery they were fighting to preserve; for all restraints upon men's natural liberty, not necessary for the simple maintenance of justice, are of the nature of slavery, and differ from each other only in degree. if their object had really been to abolish slavery, or maintain liberty or justice generally, they had only to say: all, whether white or black, who want the protection of this government, shall have it; and all who do not want it, will be left in peace, so long as they leave us in peace. had they said this, slavery would necessarily have been abolished at once; the war would have been saved; and a thousand times nobler union than we have ever had would have been the result. it would have been a voluntary union of free men; such a union as will one day exist among all men, the world over, if the several nations, so called, shall ever get rid of the usurpers, robbers, and murderers, called governments, that now plunder, enslave, and destroy them. still another of the frauds of these men is, that they are now establishing, and that the war was designed to establish, "a government of consent." the only idea they have ever manifested as to what is a government of consent, is this--that it is one to which everybody must consent, or be shot. this idea was the dominant one on which the war was carried on; and it is the dominant one, now that we have got what is called "peace." their pretenses that they have "saved the country," and "preserved our glorious union," are frauds like all the rest of their pretenses. by them they mean simply that they have subjugated, and maintained their power over, an unwilling people. this they call "saving the country"; as if an enslaved and subjugated people--or as if any people kept in subjection by the sword (as it is intended that all of us shall be hereafter)--could be said to have any country. this, too, they call "preserving our glorious union"; as if there could be said to be any union, glorious or inglorious, that was not voluntary. or as if there could be said to be any union between masters and slaves; between those who conquer, and those who are subjugated. all these cries of having "abolished slavery," of having "saved the country," of having "preserved the union," of establishing "a government of consent," and of "maintaining the national honor," are all gross, shameless, transparent cheats--so transparent that they ought to deceive no one--when uttered as justifications for the war, or for the government that has succeeded the war, or for now compelling the people to pay the cost of the war, or for compelling anybody to support a government that he does not want. the lesson taught by all these facts is this: as long as mankind continue to pay "national debts," so-called--that is, so long as they are such dupes and cowards as to pay for being cheated, plundered, enslaved, and murdered--so long there will be enough to lend the money for those purposes; and with that money a plenty of tools, called soldiers, can be hired to keep them in subjection. but when they refuse any longer to pay for being thus cheated, plundered, enslaved, and murdered, they will cease to have cheats, and usurpers, and robbers, and murderers and blood-money loan-mongers for masters. appendix. inasmuch as the constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. nevertheless, the writer thinks it proper to say that, in his opinion, the constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the constitution itself purports to authorize. he has heretofore written much, and could write much more, to prove that such is the truth. but whether the constitution really be one thing, or another, this much is certain--that it has either authorized such a government as we have had, or has been powerless to prevent it. in either case, it is unfit to exist. footnotes: [a] see _no treason_, no. 2, pages 5 and 6. [b] suppose it be "the best government on earth," does that prove its own goodness, or only the badness of all other governments? [c] the very men who drafted it, never signed it in any way to bind themselves by it, _as a contract_. and not one of them probably ever would have signed it in any way to bind himself by it, _as a contract_. [d] i have personally examined the statute books of the following states, viz.: maine, new hampshire, vermont, massachusetts, rhode island, connecticut, new york, new jersey, pennsylvania, delaware, virginia, north carolina, south carolina, georgia, florida, alabama, mississippi, tennessee, kentucky, ohio, michigan, indiana, illinois, wisconsin, texas, arkansas, missouri, iowa, minnesota, nebraska, kansas, nevada, california, and oregon, and find that in all these states the english statute has been re-enacted, sometimes with modifications, but generally enlarging its operations, and is now in force. the following are some of the provisions of the massachusetts statute: "no action shall be brought in any of the following cases, that is to say: ... "to charge a person upon a special promise to answer for the debt, default, or misdoings of another: ... "upon a contract for the sale of lands, tenements, hereditaments, or of any interest in, or concerning them; or "upon an agreement that is not to be performed within one year from the writing thereof: "unless the promise, contract, or agreement, upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized." "no contract for the sale of goods, wares, or merchandise, for the price of fifty dollars or more, shall be good or valid, unless the purchaser accepts and receives part of the goods so sold, or gives something in earnest to bind the bargain, or in part payment; or unless some note or memorandum in writing of the bargain is made and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized." [e] and this two-thirds vote may be but two-thirds of a quorum--that is two-thirds of a majority--instead of two-thirds of the whole. [f] of what appreciable value is it to any man, as an individual, that he is allowed a voice in choosing these public masters? his voice is only one of several millions. transcriber's notes: passages in italics are indicated by _italics_. inconsistencies in spelling and hyphenation have been retained from the original. obvious typographical errors have been corrected as follows: page 22: "do" changed to "does" punctuation has been corrected without note. [illustration: _photo henry dixon & son_ _from the portrait painted by harrington mann for gray's inn_] james m. beck honorary bencher of gray's inn _the constitution of the united states_ _a brief study of the genesis, formulation and political philosophy of the constitution of the united states_ _by james m. beck, ll.d_. _solicitor-general of the united states, honorary bencher of gray's inn_ _with a preface by the earl of balfour_ "_where there is no vision, the people perish; but he that keepeth the law, happy is he."--proverbs xxix_. 18 "_remove not the ancient landmark, which thy fathers have set."--proverbs xxii_. 28 to the hon. harry m. daugherty attorney-general of the united states a true and loyal friend, a fair and chivalrous foe with whom it is the author's great privilege to collaborate as solicitor-general in defending and vindicating in the supreme court of the united states the principles and mandates of its constitution _chamonix_, _july_ 14 1922 _preface by the earl of balfour_[1] i have been greatly honoured by your invitation to take the chair on this interesting occasion. it gives me special pleasure to be able to introduce to this distinguished audience my friend, mr. beck, solicitor-general of the united states. it is a great and responsible office; but long before he held it he was known to the english public and to english readers as the author who, perhaps more than any other writer in our language, contributed a statement of the allied case in the great war which produced effects far beyond the country in which it was written or the public to which it was first addressed. mr. beck approached that great theme in the spirit of a great judge; he marshalled his arguments with the skill of a great advocate, and the combination of these qualities--qualities, highly appreciated everywhere, but nowhere more than in this hall and among a gray's inn audience--has given an epoch-making character to his work. to-day he comes before us in a different character. he is neither judge nor advocate, but historian: and he offers to guide us through one of the most interesting and important enterprises in which our common race has ever been engaged. the framers of the american constitution were faced with an entirely new problem, so far, at all events, as the english-speaking world was concerned; and though they founded their doctrines upon the english traditions of law and liberty, they had to deal with circumstances which none of their british progenitors had to face, and they showed a masterly spirit in adapting the ideas of which they were the heirs to a new country and new conditions. the result is one of the greatest pieces of constructive statesmanship ever accomplished. we, who belong to the british empire, are at this moment engaged, under very different circumstances, in welding slowly and gradually the scattered fragments of the british empire into an organic whole, which must, from the very nature of its geographical situation, have a constitution as different from that of the british isles, as the constitution of the british isles is different from that of the american states. but all three spring from one root; all three are carried out by men of like political ideals; all three are destined to promote the cause of ordered liberty throughout the world. in the meanwhile we on this side of the atlantic cannot do better than study, under the most favourable and fortunate conditions, the story of the great constitutional adventure which has given us the united states of america. a.j.b. [footnote 1: [address of the earl of balfour as chairman on the occasion of the delivery on june 13, 1922, in gray's inn of the first of the lectures herein reprinted.]] _introduction by sir john simon, k.c._[2] i have the privilege and the honour of adding a few words to express our thanks to the solicitor-general of the united states for this memorable course of lectures. they are memorable alike for their subject and their form; alike for the place in which we are met and for the man who has so generously given of his time and learning for our instruction. mr. beck is always a welcome visitor to our shores, and nowhere is he more welcome than in these ancient inns of court which are the home and source of law for americans and englishmen alike. in contemplating the edifice reared by the fathers of the american constitution we take pride in remembering that it was built upon british foundations by men, many of whom were trained in the english courts; and when mr. beck lectures on this subject to us, our interest and our sympathy are redoubled by the thought that whatever differences there may be between the old world and the new, citizens of the united states and ourselves are the sons of a common mother and jointly inherit the treasure of the common law. and we cannot part with mr. beck on this occasion without a personal word. plato records a saying of socrates that the dog is a true philosopher because philosophy is love of knowledge, and a dog, while growling at strangers, always welcomes the friends that he knows. and the british public often greets its visitors with a touch of this canine philosophy. we regard mr. beck, not as a casual visitor, but as a firm friend to whom we owe much; he has been here again and again and we hope will often repeat his visits, and englishmen will never forget how, at a crisis in our fate, mr. james beck profoundly influenced the judgment of the neutral world and vindicated, by his masterly and sympathetic argument, the justice of our cause. [footnote 2: address of sir john simon on the conclusion, on june 19,1922, of the three lectures herein printed.] _author's introduction_ this book is a result of three lectures, which were delivered in the hall of gray's inn, london, on june 13, 15, and 19, 1922, respectively, under the auspices and on the invitation of the university of london. the invitation originated with the university of manchester, which, through its then vice-chancellor, dr. ramsay muir, two years ago graciously invited me to visit manchester and explain american political institutions to the undergraduates. subsequently i was greatly honoured when the universities of cambridge, edinburgh and london joined in the invitation. unfortunately for me--for i greatly valued the privilege of explaining the institutions of my country to the undergraduates of these great universities--my political duties made it impossible for me to visit england prior to june 1, about which time the supreme court of the united states, in which my official duties largely preoccupy my time, adjourns for the summer. any dates after june 1 were inconvenient to the first three universities, but it was my good fortune that the university of london was able to carry out the plan, and that it had the cordial co-operation of that venerable inn of court, gray's inn, one of the "noblest nurseries of legal training." thus i was privileged to address at once an academic and a professional audience. i came to england for this purpose as a labour of love. i had no anticipation of success, for i feared that the interest in the subject-matter of my lectures would be very slight. my surprise and gratification increased on the occasion of each lecture, as the audiences grew in numbers and distinction. many leading jurists and statesmen took more than a mere complimentary interest, and some of them, although pressed with social and public duties, honoured me with their attendance at all three lectures. how can i adequately express my appreciation of the great honour thus done me by the earl of balfour, the lord chancellor, lord justice atkin, the vice-chancellor of the university of london, and many other leaders in academic and legal circles--not to forget the chief justice of the united states, who paid me the great compliment of attending the last lecture. to one and nil of my auditors, my heartfelt thanks! i also must not fail to acknowledge the generous space given in the british press to these lectures, and the even more generous allusions to them in the editorial columns. an especial acknowledgment is due to viscount burnham and _the daily telegraph_ for their generous interest in this book. the good cause of anglo-american friendship has no better friend than lord burnham. this experience has convinced me that now, more than ever before, there is in england a deep interest in american institutions and their history. this is as it should be, for--for better or worse--england and america will play together a great part in the future history of the world. in double harness they are destined to pull the heavy load of the world's problems. therefore these "yoke-fellows in equity" must know each other better, and, what is more, _pull together_. as i was revising the proofs of these lectures in beautiful chamonix, the prospectus of the scottish-american association reached me, in which its honorary secretary and my good friend, dr. charles sarolea, took occasion to make the following suggestion to his british compatriots: "to remove those causes of estrangement, to avoid a fateful catastrophe, in other words, to bring about a cordial understanding _with_ america, the first condition must be an understanding _of_ america. such an understanding, or even the atmosphere in which such an understanding may grow, has still to be created. it is indeed passing strange that in these days of cheap books and free education, america should be almost a '_terra incognita_,' that we should know next to nothing of american history, of the american constitution, of american practical politics, of the american mentality. we scarcely read american newspapers or american books. even such masters of classical prose as francis parkman, perhaps the greatest historian who has used the english language as his vehicle, are almost unknown to the average reader. our students do not visit american universities as they used before the war to visit german universities. the consequence is that again and again we are running the risk of perpetrating the most grotesque errors of judgment, of committing the most serious political blunders, in defiance of american public opinion." the success of my gray's inn lectures convinces me that dr. sarolea underestimates the interest in america and its history in england. however, the episode, which is treated in these lectures, is, as he says, "_terra incognita_" not only in england, but even in the united states. it is amazing how little is known in america of the facts given in my second lecture. the american student, after rejoicing in the victory at yorktown and the end of the war of independence, generally skips about eight years to 1789, mid his interest in the history of his own country recommences with the inauguration of president washington. students of history in both countries thus miss one of the most interesting and instructive chapters of american history, and indeed of any history. i have ventured to add to my gray's inn lectures another address, which i delivered as the "annual address" at the session of the american bar association in cincinnati, ohio, on august 31, 1921. i do so, because it has a direct bearing on the decay of the spirit of constitutionalism both in america and elsewhere. it discusses a great _malaise_ of our age, for which, i fear, no written constitution, however wise, is an adequate remedy. it was published in condensed form in the issue of the _fortnightly_ for october, 1921, and an acknowledgment is due to its courteous editor for permission to republish it. i have forborne in these lectures to make more than a passing reference to the league of nations and the great conference which framed it, tempting as the obvious analogy was. the reader who studies the appendices will see that the covenant of the league more nearly resembles the articles of confederation than the constitution of 1787. i only mention the subject to suggest that the reader of these lectures will better understand why the american people take the written obligations of the league so seriously and literally. we have been trained for nearly a century and a half to measure the validity and obligations of laws and executive acts in courts of justice and to apply the plain import of the constitution. our constant inquiry is, "is it so nominated" in that compact? in europe, and especially england, constitutionalism is largely a spirit of great objectives and ideals. therefore, while in these nations the literal obligations of articles x, xi, xv, and xvi of the covenant of the league are not taken rigidly, we in america, pursuant to our life-long habit of constitutionalism, interpret these clauses as we do those of our constitution, and we ask ourselves, are we ready to promise to do, that which these articles literally import, join, for example, in a commercial, social and even military war against any nation that is deemed an aggressor, however remote the cause of the war may be to us? are we prepared to say that in the event of a war or threatened danger of war, the supreme council of the league may take any action it deems wise and effectual to maintain peace? this is a very serious committal. other nations may not take it so literally, but with our life-long adherence to a written constitution as a solemn contractual obligation, we do. this is said in no spirit of hostility to the league, but only to explain the american point of view. since i delivered these lectures, i took a short trip to the continent, and while sojourning in geneva, made a visit to the offices of the league. all i there saw greatly interested me, and i could have nothing but a feeling of admiration for the effective and useful administrative work which the league is doing. the men who framed the covenant of the league tried to do, under more difficult, but not dissimilar, conditions, what the framers of the american constitution did in 1787. in both cases the aim was high, the great purpose meritorious. those americans who, for the reasons stated, are not in sympathy with the structural form and political objectives of the league, are not lacking in sympathy for its admirable administrative work in co-ordinating the activities of civilized nations for the common good. in any study of a world constitution, the example of those who framed the american constitution can be studied with profit. james m. beck. _chamonix_, july 14, 1922. _contents_ preface by the earl of balfour introduction by sir john simon author's introduction first lecture: the genesis of the constitution second lecture: the formulation of the constitution third lecture: the political philosophy of the constitution the revolt against authority _i. the genesis of the constitution of the united states_ i trust i need not offer this audience, gathered in the noble hall of this historic inn--of "old purpulei, britain's ornament"--any apology for challenging its attention in this and two succeeding addresses to the genesis, formulation, and the fundamental political philosophy of the constitution of the united states. the occasion gives me peculiar satisfaction, not only in the opportunity to thank my fellow benchers of the inn for their graciousness in granting the use of this noble hall for this purpose, but also because the delivery of these addresses now enables me to be, for the moment, in fact as in honorary title a bencher, or reader, of this time-honoured society. if i needed any justification for addresses, which i was graciously invited to deliver under the auspices of the university of london, an honour which i also gratefully acknowledge, it would lie in the fact that we are to consider one of the supremely great achievements of the english-speaking race. it is in that aspect that i shall treat my theme; for, as a philosophical or juristic discussion of the american constitution, my addresses will be neither as "deep as a well, nor as wide as a church door." my auditors will bear in mind that i must limit each address to the duration of an hour, and that i cannot go deeply or exhaustively into a subject that has challenged the admiring comment and profound consideration of the intellectual world for nearly a century and a half. if england and america are to act together in the coming time--and the destinies of the world are, to a very large extent, in their keeping, then they must know each other better, and, to this end, they must take a greater interest in each other's history and political institutions. my principal purpose in these lectures is to deepen the interest of this great nation in one of the very greatest and far-reaching achievements of our common race. americans have never lacked interest in english history; for however broad the stream of our national life, how could we ignore its chief source? but is there in england an equal interest in the history of america, whose origin and development constitute one of the most dramatic and significant dramas ever played upon the stage of this "wide and universal theatre of man"? it is true that thackeray, in his _virginians_, gave us in fiction the finest picture of our colonial life, and the late and deeply lamented lord bryce wrote one of the best commentaries upon our institutions in _the american commonwealth_. in more recent years two of the most moving portraits of our hamilton and lincoln are due to your mr. oliver and lord charnwood. we gratefully recognize this; and yet, how many educated englishmen have studied that little known chapter of our history, which gave to the progress of mankind a contribution to political science which your gladstone praised as the greatest "ever struck off at a given time by the brain and purpose of man"? if "peace hath her victories no less renown'd than war," this achievement may well justify your study and awaken your admiration; for, as i have already said and cannot too strongly emphasize, it was the work of the english-speaking race, of men who, shortly before they entered upon this great work of constructive statecraft, were citizens of your empire. the conditions of colonial development had profoundly stimulated in these english pioneers the sense and genius for constitutionalism. in his speech on conciliation with america of march 22, 1775, edmund burke showed his characteristically philosophic comprehension of this powerful constitutional conscience of the then american subjects of the empire. after stating that in no other country in the world was law so generally studied, and referring to the fact that as many copies of blackstone's commentaries had been sold in america as in england, he added: "this study renders men acute, inquisitive, dexterous, prompt in attack, ready in defence, full of resources. in other countries the people, more simple and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle." moreover, these hardy pioneers were the privileged heirs of the great political traditions of england. while the constitution of the united states was very much more than an adaptation of the british constitution, yet its underlying spirit was that of the english speaking race and the common law. behind the framers of the constitution, as they entered upon their momentous task, were the mighty shades of simon de montfort, coke, sandys, bacon, eliot, hampden, lilburne, milton, shaftesbury and locke. could there be a better illustration of sir frederick pollock's noble tribute to the genius of the common law: "remember that our lady, the common law, is not a task-mistress, but a bountiful sovereign, whose service is freedom. the destinies of the english-speaking world are bound up with her fortunes and migrations and its conquests are justified by her works"? another reason makes the consideration of the subject not only interesting but opportune. "these are the times that try men's souls." it is a time of sifting, when men of all nations in civilization in these critical days are again testing the value even of those political institutions which have the sanction of the past. society is in a state of flux. everywhere the foundations of governmental structures seem to be settling--let us hope and pray upon a _surer_ foundation--and when the seismic convulsion of the world war is taken into account, it is not surprising that this is so. while the storm is not yet past and the waves have not wholly subsided, it is natural that everywhere thoughtful men as true mariners are taking their reckonings to know where they are and whether the frail bark of human institutions is still sufficiently seaworthy to keep afloat. moreover, the patent evidences of weakness in the international organization that we call civilization, the imperative need of ending the spirit of moral anarchy, and the urgent necessity of rebuilding the shattered ruins of the social edifice on surer foundations by the integration of the nations, if possible, into some new form of world organization, gives peculiar interest in these terrible days to the manner in which the american people solved a similar problem more than a century ago. then, as now, a world war had ended. then, as now, half the world was prostrated by the wounds of fratricidal strife. as washington said: "the whole world was in an uproar," and he added that the task "was to steer safely between scylla and charybdis." the problem, then as now, was not only to make "the world safe for democracy," but to make democracy, for which there is no alternative, safe for the world. the thirteen colonies in 1787, while small and relatively unimportant, were, however, a little world in themselves, and, relatively to their numbers and resources, this problem, which they confronted and solved, differed in degree but not in kind from that which now confronts civilization. impoverished in resources, exhausted by the loss of the flower of their youth, demoralized by the reaction from feverish strife, the forces of disintegration had set in in the united states between 1783 and 1787. law and order had almost perished and the provisional government had been reduced to impotence. a few wise and noble spirits, true faithfuls and great hearts, led a despondent people out of the slough of despond till their feet were again on firm ground and their faces turned towards the delectable mountains of peace, justice, and liberty. let it be emphasized that they did this, not by seeking more power, but by imposing restraints upon themselves. that spirit of self-restraint is the essence of the american constitution. so enduring was their achievement that to-day the constitution of the united states is the oldest comprehensive written form of government now existing in the world. few, if any, forms of government have better withstood the mad spirit of innovation, or more effectively proved their merit by the "arduous greatness of things done." for this reason, as the nations of the world are now trying in a cosmic form and under similar conditions to do that which the founders of the american republic in 1787 did in a microcosmic form, a short narration of that earlier achievement may not be unprofitable in this day and generation, when we are blindly groping towards some common basis for international co-ordination. one of england's greatest prime ministers, william pitt, shortly after the adoption of the constitution, prophetically said that it would be the admiration of the future ages and the pattern for future constitution building. time has verified his prediction, for constitution making has been, since the american constitution was adopted, a continuous industry. the american constitution has been the classic model for the federated state. lieber estimated that three hundred and fifty constitutions were made in the first sixty years of the nineteenth century, and, in the constituent states of the american union, one hundred and three new constitutions were promulgated in the first century of the united states. "have you a copy of the french constitution?" was asked of a bookseller during the second french empire, and the characteristically witty gallic reply was: "we do not deal in periodical literature." constitutions, as governmental panaceas, have come and gone; but it can be said of the american constitution, paraphrasing the noble tribute of dr. johnson to the immortal fame of shakespeare, that the stream of time, which has washed away the dissoluble fabric of many other paper constitutions has left almost untouched its adamantine strength. excepting the first ten amendments, which were virtually a part of the original charter, only nine others have been adopted in more than one hundred and thirty years. a constitution, while primarily for the distribution of governmental powers, is, in its last analysis, a formal expression of adherence to that which in modern times has been called the higher law, and which in ancient times was called natural law. the jurisprudence of every nation has, with more or less clearness, recognized the existence of certain primal and fundamental laws which are superior to the laws, statutes, or conventions of living generations. the original use of the term was to import the superiority of the imperial edict to the laws of the comitia. all nations have recognized this higher law to a greater or less extent. if we turn to the writings of the most intellectual race in ancient time and possibly in recorded history--the greeks--we shall see the higher law vindicated with incomparable power in the moral philosophy of its three greatest dramatists, aeschylus, sophocles, and euripides. how was it better expressed than by antigone when she was asked whether she had transgressed the laws of the state and replied: "yes, for that law was not from zeus, nor did justice, dweller with the gods below, establish it among men; nor deemed i that thy decree--mere mortal that thou art--could override those unwritten and unfailing mandates, which are not of to-day or yesterday, but ever live and no one knows their birthtide." five centuries later the greatest of the roman lawyers and orators, cicero, spoke in the same terms of a higher law, "which was never written and which we are never taught, which we never team by reading, but which was drawn by nature herself." the roman jurists gave it express recognition. they always recognized the distinction between _jus civile_, or the law of the state, and the _jus naturale_, or the law of nature. they nobly conceived that human society was a single unit and that it was governed by a law that was both antecedent and paramount to the law of rome. thus, the idea of a higher law transcending the power of a living generation, and therefore eternal as justice itself--became lodged in our system of jurisprudence. nor was the common law wanting in a recognition of a higher law that would curb the power of king or parliament, for its earlier masters, including four chief justices (coke, hobart, holt, and popham), supported the doctrine, as laid down by coke, that the judiciary had the power to nullify a law if it were "against common right and reason."--(_bonham's case_, 8 coke reports, 114.) this view as to the limitation of government and the denial of its omnipotence was powerfully accentuated in america by the very conditions of its colonization. the good yeomen of england who journeyed to america went in the spirit of the noble and intrepid kent, when, turning his back upon king lear's temporary injustice, he said that he would "shape his old course in a country new." was it strange that the early colonists, as they braved the hardships and perils of a dangerous voyage, only to be confronted in the wilderness by disease, famine and massacre, should fall back for their own government upon these primal verities of human society, and claim not only their inherited rights as englishmen, but also the peculiar privileges of pioneers in an unconquered wilderness? this spirit of constitutionalism in america, which culminated in the constitution of the united states, had its institutional origin in the spacious days of queen elizabeth. that wonderful age, which gave to the world not only shakespeare, spenser and jonson, but also drake, frobisher and raleigh, was the anglo-saxon reaction to the renaissance. the spirit of man had a new birth and was breaking away from the too rigid bonds of ancient custom and authority. among the notable, but little known, leaders of that time was sir edwin sandys, the leading spirit of the london (or virginia) company. he was a liberal when to be such was an "extra hazardous risk." he was the son of a liberal, for his father, a great prelate, had been sent to the tower for preaching in defence of lady jane grey. the son, sir edwin, was the foe of monopolies, and in the same parliament that impeached the great genius of this inn, francis bacon, sandys advocated the then novel proposition that accused prisoners should have the right to be represented by counsel, to which the strange objection was made that it would subvert the administration of justice. as early as 1613, he had boldly declared in parliament that even the king's authority rested upon the clear understanding that there were reciprocal conditions which neither ruler nor subject could violate with impunity. he might not too fancifully be called the "father of american constitutionalism," for he caused a constitution--possibly the first time that that word was ever applied to a comprehensive scheme of government--to be drafted for the little colony of virginia in 1609 and amplified in 1612. speaking in this venerable hall, whose very walls eloquently remind us of the mighty genius of francis bacon, it is interesting to recall that these two charters of government, which were the beginning of constitutionalism in america and therefore the germ of the constitution of the united states, were put in legal form for royal approval by lord bacon himself. thus the immortal treasurer of this inn is directly linked with the development of constitutional freedom in america. bacon became a member of the council for the virginia company in 1609. his deep interest in it is attested in the dedication to him by william strachey in 1618 of the latter's _historie of travaile into virginia brittania_. in his speech in the house of commons on january 30, 1621, bacon saw a vision of the future and predicted the growth of america, when he said: "this kingdom now first in his majesty's times hath gotten a lot or portion in the new world by the plantation of virginia and the summer islands. and certainly it is with the kingdoms on earth as it is in the kingdom of heaven, sometimes a grain of mustard seed proves a great tree." truly the mustard seed of virginia did become a great tree in the american commonwealth. one of bacon's nephews, also of the inns of court, nathaniel bacon, became the first liberal leader in the colonies, and led the first revolt against colonial misrule. he was probably of gray's inn, for it is difficult to imagine a bacon studying in any inn than the one to which the great bacon had given so much loving care. due to these charters, on july 30, 1619, the little remnant of colonists whom disease and famine had left untouched were summoned to meet in the church at jamestown to form the first parliamentary assembly in america, the first-born of the fruitful mother of parliaments. it was due to sandys not only that the first permanent english settlement in the western world was planted at jamestown in 1607, but that a later group of "adventurers"--for such they called themselves--destined to be more famous, were driven by chance of wind and wave to land on the coast of massachusetts. thus was established, not only the beginning of england's colonial empire--still one of the most beneficent forces in the world--but also the principle of local self-government, which, in the western world, was destined to develop the american commonwealth. the compact, signed in the cabin of the _mayflower_, while not in strictness a constitution, like the virginia charter, was yet destined to be a landmark of history. sandys suffered for his convictions, for the party of reaction convinced king james that virginia was a nest of sedition, and the arbitrary ruler, in the reorganization of the london company, gave a pointed admonition by saying: "choose the devil, if you will, but not sir edwin sandys." in 1621 he was committed to the tower and only released after the house of commons had made a vigorous protest against his incarceration. his successor as treasurer of the london company was shakespeare's patron, the earl of southampton, and it is not a fanciful conjecture to assume that, when the news of the disaster which befell one of the fleets of the london company on the island of bermuda reached england, it inspired shakespeare to write his incomparable sea idyl, _the tempest_. if so, this lovely drama was shakespeare's unconscious apostrophe to america, for in ariel--seeking to be free--can be symbolized her awakening spirit, while prospero, with his thaumaturgic achievements, suggests a constructive genius, which in a little more than a century has made one of the least of the nations to-day one of the greatest. bacon, sandys, southampton and the liberal leaders of the house of commons had implanted in the ideas of the colonists the spirit of constitutionalism, which was destined to influence profoundly the whole development of the american colonies, and finally to culminate in the constitution of the united states. the later struggle in the long parliament, the fall of charles i, and more especially the deposition of james ii, the accession of william of orange, and the substitution for the stuart claim of divine right that of the supremacy of the people in parliament, naturally had their reaction in the western world in intensifying the spirit of constitutionalism in the growing american commonwealth. the colonial history was therefore increasingly marked by a spirit of individualism, a natural partiality for local rule, and a tenacious adherence to their special privileges, whether granted to crown colonies, like new hampshire, new york, new jersey, virginia, the two carolinas, and georgia, or proprietary governments, like maryland, delaware, and pennsylvania, or charter governments, such as massachusetts, rhode island, and connecticut. in the three colonies last named formal corporate charters were granted by the crown, which in themselves were constitutions in embryo, and the colonists thus acquired written rights as to the government of their internal affairs, upon the maintenance of which they jealously insisted. thus arose the spirit in america, which treated constitutional rights, not so much as special privileges granted by plenary sovereignty, but as contractual obligations which could be enforced in the courts against the sovereign. all this developed in the colonists a powerful sense of constitutional morality, and its pertinency to my present theme lies in the fact that when each of the thirteen colonies became, at the conclusion of the war of independence, a separate and independent nation, they were more concerned, in establishing a central government, to limit its authority and to maintain local self-government than they were to give to the new-born nation the powers which it needed. they carried their constitutionalism to extremes, which nearly made a strong and efficient central government an impossibility. nothing was less desired by them than a unified government. it was destined to be wrung from their hard necessities. the constitution was the reflex action of two opposing tendencies, the one the imperative need of an efficient central government, and the other the passionate attachment to local self-rule. co-operation between the colonies had been a matter of long discussion and earnest debate, and primarily resulted from the necessity of defence against a common foe the french in canada, and the indians of the forest. in 1643 four of the new england colonies united in a league to defend themselves. in 1693 william penn made the first suggestion for a union of all the colonies. in 1734 a council was held at albany at the instance of the crown to provide the means for the defence against france in canada, and it was then that franklin submitted the first concrete form for a union of the colonies into a permanent alliance. it was in advance of the times, for, conservative as it was, it was unfortunately opposed both by the crown and the colonies themselves. the time was not ripe for any such union, and the reason was apparent. the colonies differed very much in the character of their populations, in the nature of their economic interests, and in their political antecedents. they were not wholly of the english race. many nations in europe had already contributed to the population. for example, new york was partly dutch, and in pennsylvania there was a considerable element of the swedes, germans, and swiss. moreover, the colonists were as widely separated from each other, measured by the facilities of locomotion, as are the most remote nations of the world to-day. only a few men ever found occasion to leave their colony to journey to another, and most men never left, from birth to death, the community in which they lived. outside of the few scattered communities in the different colonies there was an almost unbroken wilderness, with few wagon roads and in places only a bridle path. the only methods of communication were the letters and still fewer newspapers, which were carried by post riders often through an almost trackless wilderness. obviously, a working government could not easily be constituted between peoples of different religions, races, and economic interests, who, for the most part, never met each other face to face and with whom frequent communication was impossible. the differences between the colonies and the mother-country with respect to internal taxation slowly developed into an issue of constitutionalism rather than of legislative policy. as in england, the immediate question affected the power of the crown to give to the customs inspectors the power to make general searches and seizures, to enforce the navigation laws. in 1761 james otis, of massachusetts, made a fateful speech before the colonial legislature, in which, asserting the illegality of the search warrants on the ground that they violated the constitutional rights of englishmen to protection in their own homes, he asserted that acts of parliament which violated the sanctity of the home were void and that, more specifically, they violated the charter granted to massachusetts. asserting the doctrine which at that time was the doctrine of the english common law, as stated by coke and three other chief justices, he said: "to say the parliament is absolute and arbitrary is a contradiction. the parliament cannot make two and two five. omnipotency cannot do it.... parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of parliament that makes it so: there must be in every instance a higher authority, viz., god. should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void; and so it would be adjudged by the parliament itself, when convinced of their mistake." it is a curious fact that in the reaction from the tyranny of the stuarts your country abandoned this principle of the common law by substituting for the omnipotence of the crown the omnipotence of parliament, while in my country the somewhat vague and unworkable principle of the common law, which gave the judiciary the power to invalidate an act of the legislature, when against natural reason and justice, was developed into the great principle, without which institutions in an heterogeneous and widely scattered democracy would be unworkable, namely that the powers of government are strictly defined, and that neither the executive, the legislative, nor the judicial departments of the government can go beyond the precise limits established by the fundamental law. like the common law, the constitution was thus the result of a slow evolution. mr. gladstone, in his oft-quoted remark, gave an erroneous impression when he said: "as the british constitution is the most subtle organism which has proceeded from progressive history, so the american constitution is the most wonderful work ever struck off, at a given time by the brain and purpose of man." this assumes that the constitution sprang, like minerva, armed _cap-ã -pie,_ from the brain of the american people, whereas it was as much the result of a slow, laborious, and painful evolution as was the british constitution. probably gladstone so understood the development of the american constitution and recognized that its framing was only the culmination of an evolution of many years. when the constitutional struggle between the colonies and the parliament became acute, the necessity of a union for a common defence became imperative. as early as july, 1773, franklin recommended the "convening of a general congress" so that the colonies would act together. his suggestion was introduced in the virginia house of burgesses in may, 1774, and as a result there met in philadelphia on september 5 of that year the first continental congress, styled by themselves: "the delegates appointed by the good people of these colonies." nothing was further from their purpose than to form a central government or to separate from england. this congress only met as a conference of representatives of the colonies to defend what they conceived to be their constitutional rights. before the second continental congress met in the following year, the accidental clash at lexington and concord had taken place, and as the congress again re-convened a momentous change had taken place, which was, in fact, the beginning of the american commonwealth. the congress became by force of circumstances a provisional government, and as such it might well have claimed plenary powers to meet an immediate exigency. so indisposed were they to separate from england or to substitute for its rule that of a new government, that the continental congress, when it then involuntarily took over the government of america, failed to exercise any adequate power. it remained simply a conference without real power. each colony had one vote and the rule of unanimity prevailed. even its decisions were largely advisory, for they amounted to little more than recommendations to the constituent states as to what measures should be taken. each colony complied with the recommendation in its discretion and in its own way. notwithstanding this fatal lack of authority, the continental congress, then actually engaged in civil war, created an army, and, through its committees, entered into negotiations with foreign nations. to support the former, it issued paper money, with the disastrous result that could be readily anticipated. while it had a presiding officer, it had no executive, and the new nation, which was hardly conscious of its own birth, had no judiciary. had this _de facto_ government assumed the plenary powers which provisional governments must, under similar circumstances, necessarily assume, it would have been better for the cause of the colonists. for want of an efficient central government, the civil administration of the infant nation was marked by a weakness and incapacity that defeated washington's plans and nearly broke his spirit. washington's little army was the victim of the gross incapacity of an impotent government. the soldiers came and went, not as the general commanded, but as the various colonies permitted. the tragedy of valley forge, when the little army nearly starved to death, and literally the soldiers could be tracked over the snows by their bleeding, unshod feet, was not due to lack of clothing and provisions, but to the gross incapacity of a headless government that if it had had the wisdom to act lacked the authority. the situation was one of chaos. the colonies recruited their own contingents, paid such taxes as they pleased, which grew increasingly less, and the congress had no coercive power to enforce its policies, either with reference to internal or external affairs. this situation was so clearly recognized that immediately after the declaration of independence on july 4, 1776, the draft of a constitution was proposed to give the central government more effective power; but, although the necessity was manifest and most urgent, the so-called articles of confederation, which were then drafted in 1776, were never finally adopted by the requisite number of states until march, 1781, when the war was nearly over. as the result proved, they marked only a very small advance over the existing _de facto_ government, for the constituent states were still too jealous of each other and too hostile to the creation of a central government to form a truly effective government. the founders of the republic could only learn from their errors, but it is their great merit that they had the ability to profit in the stern school of experience, of which franklin has said that it is a "dear school, but fools will learn in no other." the founders of the republic were not fools, and while they did not, as gladstone seems to intimate, have the inspired wisdom to develop a wonderful constitution by sheer intuition unaided by experience, they did have the ability to make of their very errors the stepping-stones to a higher destiny. by the articles of confederation, which, as stated, became effective in 1781, the conduct of foreign affairs was vested in the new government, which was also given the power to create admiralty courts, regulate coinage, maintain an army and navy, borrow money, and emit bills of credit, but the great limitation was that in all other respects the constituent states retained absolute power, especially with reference to commerce and taxation. all that the central government could do was to requisition the states to furnish food supplies, and the states were then left to impose the taxes and, if necessary, to enforce their payment in their own way, with the inevitable result that they vied with each other in the struggle to evade them. the confederation had no direct power over the citizens of the several states. moreover, the congress could not levy any taxes, or indeed pass any measure unless nine out of the thirteen states agreed, and the constitution could not be amended except by unanimous vote. while the congress could select a presiding officer to serve for one year, yet he had no real executive authority. during the recess of the congress, a committee of thirteen, consisting of one delegate from each state, had _ad interim_ powers, but not greater than the congress, which they represented. such a government would have been fatal to any people, and so it nearly proved to be to the infant nation. two circumstances saved them from the consequences of such incapacity: one was the invaluable aid of france, and the other the personality of george washington. of this great leader, one of the noblest that ever "lived in the tide of time," it is only necessary to quote the fine tribute paid to him by the greatest of the victorian novelists in his _virginians_: "what a constancy, what a magnanimity, what a surprising persistence against fortune!... washington, the chief of a nation in arms, doing battle with distracted parties; calm in the midst of conspiracy; serene against the open foe before him and the darker enemies at his back; washington, inspiring order and spirit into troops hungry and in rags; stung by ingratitude, but betraying no anger, and every ready to forgive; in defeat invincible, magnanimous in conquest and never so sublime as on that day when he laid down his victorious sword and sought his noble retirement--here, indeed, is a character to admire and revere; a life without a stain, a fame without a flaw." a year after the articles of confederation had been adopted, the war came to an end by a preliminary treaty on november 30, 1782. now follows the least known chapter in american history. it was a period of travail, of which the constitution of the united states and the present american nation were born. the government slowly succumbed from its own weakness to its inevitable death. only the shreds and patches of authority were left. gradually the union fell apart. of the continental congress only fifteen members, representing seven colonies, remained to transact the affairs of the new nation. the army, which previously to the termination of the war had dissolved by the hundreds, was now unpaid and in a stale of revolt. measure after measure was proposed in congress to raise money to pay the interest on the bonded indebtedness, which was in arrears, and to provide funds for the most necessary expenses, but these failed, in congress for the want of the necessary nine votes or, if enacted, the states treated the requisitions with indifference. the currency of the united states had fallen almost as low as the austrian kronen, and men derisively plastered the walls of their houses with the worthless paper of the continental congress. adequate authority no longer remained to carry out the terms of the treaties with england and france, and they were nullified by the failure of the infant nation to comply with its own obligations and the consequent refusal of the other contracting parties to comply with theirs. the government made a call upon the states to raise $8,000,000 for the most vital needs, but only $400,000 was actually received. then congress asked the states to vest in it the power to levy a tax of five per cent, on imports for a limited period, but, after waiting two years for the action of the states, less than nine concurred. the states were then asked to pledge their own internal revenue for twenty-five years to meet the national indebtedness, but this could only be done by unanimous consent, and while twelve states concurred, rhode island refused and the measure was defeated. it was again the infinite folly of the _liberum veto_ which, prior to the great partition, condemned poland to chronic anarchy. the impotence of the new government, which was still sitting in philadelphia, can be measured by the fact that on june 9, 1783, word came that eighty soldiers were on their way to philadelphia to demand relief. they stacked their arms in front of the state house, where the congress was then sitting, and refused to disband, when requested by col. alexander hamilton, as the representative of the congress, to do so. when congress appealed to the government of pennsylvania for protection, it was advised that the pennsylvania militia was likewise insubordinate. the congress then hastily fled by night and became a fugitive. the impotence of the confederation can be measured by the fact that in the last fourteen months of its existence its receipts were less than $400,000, while the interest on the foreign debt alone was over $2,400,000, and the interest on the internal debt was five-fold greater. in the absence of any government and in the period of general prostration it was not unnatural that the spirit of bolshevism grew with alarming rapidity. it even permeated the officers of the army. in march, 1783, an anonymous communication was sent to washington's officers to meet in secret conference to take some action, possibly to overthrow the government. a copy fell into washington's hands and, while he forbade the assemblage of the officers under the anonymous call, he himself directed the officers to assemble. he unexpectedly appeared at the meeting and, being no speaker, he had reduced his appeal to writing. as he adjusted his spectacles to read it, he pathetically said: "i have not only grown gray but blind in your service." he then made a touching appeal to them not to increase by example the spreading spirit of revolt. the very sight of their old commander turned the hearts of the revolting element and the officers remained loyal to their noble leader. where the spirit of disaffection was thus found in high places it naturally prevailed more widely among the masses who had been driven to frenzy by their sufferings. this culminated in a revolt in massachusetts under the leadership of an old soldier named shays, and it spread with such rapidity that not only did one-fifth of the people join in attempting to overthrow the remnant of established authority in massachusetts, but it rapidly spread to other states. the offices of government and the courthouses were seized, the collection of debts was forbidden, and private property was forcibly appropriated to meet the common needs. chaos had come again. it filled washington's heart with disgust and despair. after surrendering his commission to the pitiful remnant of the government he had retired to mount vernon, and for a time declined to act further as the leader of his people. thus, in october, 1785, he wrote james warren, of massachusetts: "the war, as you have very justly observed, has terminated most advantageously for america, and a fair field is presented to our view; but i confess to you freely, my dear sir, that i do not think we possess wisdom or justice enough to cultivate it properly. illiberality, jealousy, and local policy mix too much in all our public councils for good government of the union. in a word, the confederation appears to me to be little more than a shadow without the substance, and congress a nugatory body, their ordinances being little attended to.... by such policy as this the wheels of government are clogged, and our brightest prospects, and that high expectation which was entertained of us by the wondering world, are turned into astonishment; and, from the high ground on which we stood, we are descending into the vale of confusion and darkness." again he wrote to george mason: "i have seen without despondency, even for a moment, the hours which america has styled its gloomy ones, but i have beheld no day since the commencement of hostilities that i thought our liberties in such imminent danger as at present. indeed, we are verging so fast to destruction that i am feeling that sense to which i have been a stranger until within these three months." again in 1786 he writes: "i think often of our situation, and view it with concern. from the high ground we stood upon, from the plain path which invited our footsteps, to be so fallen, so lost, is mortifying; but everything of virtue has, in a degree, taken its departure from our land.... what, gracious god, is man that there should be such inconsistency, and perfidiousness in his conduct! it was but the other day that we were shedding our blood to obtain the constitutions under which we now live, and now we are unsheathing our swords to overturn them. the thing is so unaccountable that i hardly know how to realize it or to persuade myself that i am not under an illusion of a dream." it was, however, the darkest hour before the dawn, and again it was washington who became his country's saviour. in 1785, some commissioners from the states of virginia and maryland visited mount vernon to pay their respects to the well-loved commander. after conferring with him upon the chaos of the times, they decided to issue a call for a general conference of the representatives of the states to be held on september 11, 1786, at annapolis, maryland, to discuss how far the states themselves could agree on common regulations of commerce. at the appointed time the delegates assembled from virginia, pennsylvania, delaware, new york and new jersey, and finding themselves too few in number to achieve the great objective, the convention contented itself by issuing another call, drafted by alexander hamilton, then under thirty years of age, to all the states to send delegates to a convention to be held in philadelphia on the second monday in may, 1787, "to take into consideration the situation of the united states, to devise such further provisions as should appear to them necessary to render the constitution of the federal government adequate to the exigencies of the union." the dying congress tardily approved of this suggestion, but finally, on january 21, 1787, grudgingly adopted a resolution that- "it is expedient that on the second monday in may next a convention of delegates, who shall have been appointed by the several states, be held at philadelphia _for the sole and express purpose of revising the articles of confederation_ and reporting to congress and the several legislatures such alterations and provisions therein as shall, _when agreed to in congress_ and conformed to by the states, render the federal constitution adequate to the exigency of the government and the preservation of the union." it will be noted by the italicized portions of the resolution that this impotent body thus vainly attempted to cling to the shadow of its vanished authority by stating that the proposed constitutional convention should merely revise the worthless articles of confederation and that such amendments should not have validity until adopted by congress as well as by the people of the several states. how this mandate was disregarded and how the convention was formed, and proceeded to create a new government with a new constitution, and how it achieved its mighty work, will be the subject of the next lecture. anticipating the masterly ability with which a seemingly impotent and dying nation plucked from the nettle of danger the flower of safety, let me conclude this first address by quoting the words of de tocqueville, in his remarkable work _democracy in america_, where he says: "the federal government, condemned to impotence by its constitution and no longer sustained by the presence of common danger ... was already on the verge of destruction when it officially proclaimed its inability to conduct the government and appealed to the constituent authority of the nation.... it is a novelty in the history of a society to see a calm and scrutinizing eye turned upon itself, when apprised by the legislature that the wheels of government are stopped; to see it carefully examine the extent of the field and patiently wait for two years until a remedy was discovered, which it voluntarily adopted, without having ever wrung a tear or a drop of blood from mankind." _ii. the great convention_ now follows a notable and yet little known scene in the drama of history. it reveals a people who, without shedding a drop of blood, calmly and deliberately abolished one government, substituted another, and erected it upon foundations which have hitherto proved enduring. even the superstructure slowly erected upon these foundations has suffered little change in the most changing period of the world's history, and until recently its additions, few in number, have varied little from the plans of the original architects. the constitution is to-day, not a ruined parthenon, but rather as one of those gothic masterpieces, against which the storms of passionate strife have beaten in vain. the foundations were laid at a time when disorder was rampant and anarchy widely prevalent. as i have already shown in my first lecture, credit was gone, business paralysed, lawlessness triumphant, and not only between class and class, but between state and state, there were acute controversies and an alarming disunity of spirit. to weld thirteen jealous and discordant states, demoralized by an exhausting war, into a unified and efficient nation against their wills, was a seemingly impossible task. frederick the so-called great had said that a federal union of widely scattered communities was impossible. its final accomplishment has blinded the world to the essential difficulty of the problem. the time was may 25, 1787; the place, the state house in philadelphia, a little town of not more than 20,000 people, and, at that time, as remote, measured by the facilities of communication, to the centres of civilization as is now vladivostok. the _dramatis personae_ in this drama, though few in numbers, were, however, worthy of the task. seventy-two had originally been offered or given credentials, for each state was permitted to send as many delegates as it pleased, inasmuch as the states were to vote in the convention as units. of these, the greatest actual attendance was fifty-five, and at the end of the convention a saving remnant of only thirty-nine remained to finish a work which was to immortalize its participants. while this notable group of men contained a few merchants, financiers, farmers, doctors, educators, and soldiers, of the remainder, at least thirty-one were lawyers, and of these many had been justices of the local courts and executive officers of the commonwealths. four had studied in the inner temple, at least five in the middle temple, one at oxford under the tuition of blackstone and two in scottish universities. few of them were inexperienced in public affairs, for of the original fifty-five members, thirty-nine had been members of the first or second continental congresses, and eight had already helped to frame the constitutions of their respective states. at least twenty-two were college graduates, of whom nine were graduates of princeton, three of yale, two of harvard, four of william and mary, and one each from the universities of oxford, columbia, glasgow, and edinburgh. a few already enjoyed world-wide fame, notably doctor franklin, possibly the most versatile genius of the eighteenth century and universally known and honoured as a scientist, philosopher, and diplomat, and george washington, whose fame, even at that day, had filled the world with the noble purity of his character. it was a convention of comparatively young men, the average age being little above forty. franklin was the oldest member, being then eighty-one; dayton, the youngest, being twenty-seven. with the exception of franklin and washington, most of the potential personalities in the convention were under forty. thus, james madison, who contributed so largely to the plan that he is sometimes called "the father of the constitution," was thirty-six. charles pinckney, who, unaided, submitted the first concrete draft of the constitution, was only twenty-nine, and alexander hamilton, who was destined to take a leading part in securing its ratification by his powerful oratory and his very able commentaries in the federalist papers, was only thirty. above all they were a group of gentlemen of substance and honour, who could debate for four months during the depressing weather of a hot summer without losing their tempers, except momentarily--and this despite vital differences--and who showed that genius for toleration and reconciliation of conflicting views inspired by a common fidelity to a great objective that is the highest mark of statesmanship. they represented the spirit of representative government at its best in avoiding the cowardice of time-servers and the low cunning of demagogues. all apparently were inspired by a fine spirit of self-effacement. selfish ambition was conspicuously absent. they differed, at times heatedly, but always as gentlemen of candour and honour. the very secrecy of their deliberations, of which i shall presently speak, is ample proof how indifferent they were to popular applause and the _civium ardor prava jubentium_. the convention had been slow in assembling. ample notice had been given that it would convene on may 13, 1787, but when that day arrived a mere handful of the delegates, less than a quorum, had assembled. the virginia delegation, six in number, and forming probably the ablest delegation from any state, arriving in time, and failing to find a quorum then assembled, employed the period of waiting in submitting to the pennsylvania delegation the outlines of a plan for the new constitution. the plan was largely the work of james madison, and how long it had been in preparation cannot be definitely stated. it is clear that four years before a philadelphia merchant, one peletiah webster, had published a brochure proposing a scheme of dual sovereignty, under which the citizens would owe a double allegiance--one to the constituent states within the sphere of their reserved powers, and one to a federated government within the sphere of its delegated powers. leagues of states had often existed, but a league which, within a prescribed sphere, would have direct authority over the citizens of the constituent states, without, however, abolishing the authority of such states as to their reserved sphere of power, was a novel theory. how far the virginia project had been influenced by webster's suggestion is not clear, but it is certain that before the convention met pennsylvania and virginia, two of the most powerful states, were committed to it. the suggestion was a radical one, for the states, with few exceptions, were chiefly insistent upon the preservation of their sovereignty, and while they were willing to amend the articles of confederation by giving fuller authority to the central government, such as it was, the suggestion of subordinating the states to a new sovereign power, whose authority within circumscribed limits was to be supreme, was opposed to all their conventions and traditions. washington, however, had warmly welcomed the creation of a strong central government, and his correspondence with the leading men of the colonies for some years previously had been burdened with arguments to convince them that a mere league of states would not suffice to create a stable nation. to george washington, soldier and statesman, is due above all men the ideal of a federated union, for without his influence--that of a noble and unselfish leader--the great result would probably never have been secured. while still waiting for the convention, to meet, and while discussing what was expedient and practicable when they did meet, washington one day said to a group of delegates, who were considering the acute nature of the crisis: "it is too probable that no plan that we propose will be adopted. perhaps another dreadful conflict is to be sustained. if, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? let us raise a standard to which the wise and just can repair. the event is in the hand of god." noble words, fit to be written in letters of gold over the portal of every legislature of the world, and it was in this spirit that the convention finally convened on may 25th, 1787. when the delegates from nine states had assembled, washington was unanimously elected the presiding officer of the convention. it began by adopting rules of order, and the most significant of these was the provision for secrecy. no copy should be taken of any entry on the journal, or even permission given to inspect it, without leave of the convention, and "nothing spoken in the house be printed or otherwise published or communicated without leave." the yeas and nays should not be recorded. the rule of secrecy was enlarged by an unwritten understanding that, even when the convention had adjourned, no disclosure should be made of its proceedings during the life of its members. when after nearly four months, the convention adjourned, the secret had been kept, and no one knew even the concrete result of its deliberations until the constitution itself, and nothing else, was offered to the approval of the people. the high-way, upon which the state house fronted, was covered with earth, to deaden the noise of traffic, and sentries were posted at every means of ingress and egress, to prevent any intrusion upon the privacy of the convention. the members were not photographed daily for the pictorial press, nor did any cinema register their entrance into the simple colonial hall where they were to meet. notwithstanding this limitation--for no present-day conference or assembly can proceed with its labours until its members are photographed for the curiosity of the public--these simple-minded gentlemen--less intent upon their appearance than their task--were to accomplish a work of enduring importance. the extreme care which was taken to preserve this secrecy inviolate, and its purpose, were indicated in an incident handed down by tradition. one of the members dropped a copy of a proposition then before the convention for consideration, and it was found by another of the delegates and handed to general washington. at the conclusion of the session, washington arose and sternly reprimanded the member for his carelessness by saying: "i must entreat gentlemen to be more careful, lest our transactions get into the newspapers and disturb the public repose by premature speculations. i know not whose paper it is, but there it is [_throwing it down on the table_]. let him who owns it, take it." he then bowed, picked up his hat and left the room with such evidences of annoyance that, like school-children, no delegate was willing to admit the ownership of the paper. the thought suggests itself: how different the result at versailles and genoa might have been had there been the same reasonable provisions for discussion and action uninfluenced by too premature public comment of the day! in these days, when representative government has degenerated into government by a fleeting public opinion, the price we pay for such government by, for and of the press, is too often the inability of representatives to do what they deem wise and just. at the close of the convention its records were committed into the keeping of washington, with instructions to "retain the journal and other papers, subject to order of congress, if ever formed under the constitution." even the journal consisted of little more than daily memoranda, from which the minutes ought to have been, but never were, made; and these fragmentary records of the proceedings of a convention which had been in continuous session for nearly four months were never published until the year 1819, or thirty-two years after the close of the convention. thus, the american people knew nothing of their greatest convention until a generation later, and then only a few bones of the mastodon were exhibited to their curious gaze. the members of the convention kept its secrets inviolate for many years. with few exceptions, the great secrets of the convention died with them. only one, james madison, left a comprehensive statement of the more formal proceedings. with this notable exception, only a few anecdotes, handed down by tradition, escaped oblivion. the first of the number to break the pledge of secrecy was robert yates, chief justice of new york, who, in 1821, published his recollections; but, as he had left the convention a few months after it began, his notes ceased with the 5th of july. the world would thus have been for ever ignorant of the details of one of the most remarkable conventions in the annals of mankind had it not been that one of the ablest of their number, james madison, regularly attended the sessions and kept notes from day to day of the debates. while he was not a stenographer, he had a gift for condensing a speech and fairly representing its substance. he jealously guarded his journal of the convention until his death. its very existence was known to few. he died in 1836, and four years later the government purchased the manuscript from his widow. then, for the first time, the curtain was measurably raised upon the proceedings of a convention which had created, as we now know, one of the greatest nations in history. fifty-three years after the close of the convention, and when nearly every one of its participants were dead, madison's journal was first published. when was a great secret better kept? grateful as posterity must be for this inestimable gift of great human enterprise, yet even madison's careful journal fills one with the deepest regret that this wonderful debate, which lasted for nearly four months between men of no ordinary ability, could not have been preserved to the world. two or three of the speeches which madison gives in his journal are complete, for when doctor franklin spoke he reduced his remarks to writing and gave a copy to madison, but of the other speeches only a fragrant remains. thus, that "admirable crichton," alexander hamilton, addressed the convention in a speech that lasted five hours, in which he stated his philosophy of government, but of that only a short condensation, and possibly not even an accurate fragment, remains. without this extraordinary provision for secrecy, which is so opposed to modern democratic conventions, and which so little resembles the famous point as to "open covenants openly arrived at," the convention could not have accomplished its great work, for these wise men realized that a statesman cannot act wisely under the observation of a gallery, and especially when the gallery compels him by the pressure of public opinion to work as it directs. i recognize that public opinion--often temporarily uninformed but in the end generally right--does often save the democracies of the world from the selfish ends of self-seeking and misguided leadership; but, given noble and wise representatives, they work best when least influenced by the fleeting passions of the day. it is evident that if the framers of the constitution had met, as similar conventions have within recent years met at versailles and genoa, with the world as their gallery and with the representatives of the press as an integral part of the conference, they would have accomplished nothing. the probability is that the convention would not have lasted a month if their immediate purpose had been to placate current opinion. it may be doubted whether such a convention, if called to-day, either in your country or mine, could achieve like results, for in this day of unlimited publicity, when men divide not as individuals but in powerful and organized groups, a constitutional convention would, i fear, prove a witches' cauldron of class legislation and demagoguery. is it not possible that modern democracy is in danger of strangulation by its present-day methods and ideals? again the words of washington suggest themselves: "if, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? let us raise a standard to which the wise and just can repair." working with a sad sincerity and with despair in their hearts, this little band of men wrought a work of surpassing importance, and if they did not receive the immediate plaudits of the living generation, their shades can at least solace themselves with the reflection that posterity has acclaimed their work as one of the greatest political achievements of man. the rules of order and the nature of the proceedings thus determined, the convention opened by an address by mr. randolph of virginia, in which he submitted, in the form of fifteen points--nearly the number of the fatal fourteen--the outlines for a new government. he himself in his opening speech summarized the propositions by candidly confessing "that they were not intended for a federal government" (thereby meaning a mere league of states) but "a strong consolidated union." upon this radical change the convention was to argue earnestly and at times bitterly for many a weary day. the plan provided for a national legislature of which the lower branch should be elected by the people and the upper branch by the lower branch upon the nomination of the legislatures of the states. this legislature should enjoy all the legislative rights given to the federation, and there followed the sweeping grant that it "could legislate in all cases to which the separate states are incompetent or in which the harmony of the united states may be interrupted by the exercise of individual legislation," with power "to negative all laws passed by the several states contravening in the opinion of the national legislature the articles of the union." a national executive was proposed, together with a national judiciary, and these two bodies were given authority "to examine every act of the national legislature before it shall operate and every act of a particular legislature before a negative thereon shall be final." this marked an immense advance over the articles of confederation, under which there was no national executive or judiciary, and under which the legislature had no direct power over the citizens of the states, and could only impose duties upon the states themselves by the concurrence of nine of the thirteen. hardly had mr. randolph submitted the so-called virginia plan when charles pinckney, of south carolina, a young man of twenty-nine years of age, with the courage of youth submitted to the house a draft of the future federal government. curiously enough, it did not differ in principle from the virginia plan, but was more specific and concrete in stating the powers which the federal government should exercise, and many of its provisions were embodied in the final draft. indeed, pinckney's plan was the future constitution of the united states in embryo; and when it is read and contrasted with the document which has so justly won the acclaim of men throughout the world, it is amazing that so young a man should have anticipated and reduced to a concrete and effective form many of the most novel features of the federal government. as the only copy of pinckney's plan was furnished years afterwards to madison for his journal, it is possible that some of its wisdom was of the _post factum_ variety. having received the two plans, the convention then went, on may 30, into a committee of the whole to consider the fifteen propositions in the virginia plan _seriatim_. they wisely concluded to determine abstract ideas first and concrete forms later. apparently for the time being little attention was paid to pinckney's plan, and this may have been due to the hostile attitude of the older members of the convention to the presumption of his youth. then ensued a very remarkable debate on the immediate propositions and the principles of government which underlay them, which lasted for two weeks. on june 13 the committee rose. even the fragments of this debate, which may well have been one of the most notable in history, indicate the care with which the members had studied governments of ancient and modern times. there were many points of difference, but chief of them, which nearly resulted in the collapse of the convention, was the inevitable difficulty which always arises in the formation of a league of states or an association of nations between the great and the little states. the five larger states had a population that was nearly twice as great as the remaining eight states. thus virginia's population was nearly ten-fold as great as georgia. moreover, the states differed greatly in their material wealth and power. nevertheless, all of them entered the convention as independent sovereign nations, and the smaller nations contended that the equality in suffrage and political power which prevailed in the convention (in which each state, large or small, voted as a unit), should and must be preserved in the future government. to this the larger states were quite unwilling to yield, and when the committee rose they reported, in substance, the virginia plan, with the proviso that representation in the proposed double-chambered congress should be "according to some equitable ratio of representation." on june 15 the small states presented their draft, which was afterwards known as the new jersey plan, because it was introduced by mr. patterson of that state. it only contemplated an amendment to the existing constitution and an amplification of the powers of the impotent confederation. its chief advance over the existing government was that it provided for a federal executive and a federal judiciary, but otherwise the government remained a mere league of states, in which the central government could generally act only by the vote of nine states, and in which their power was exhausted when they requested the states to enforce the decrees. its chief advance over the articles of confederation, in addition to the creation of an executive, was an assertion that the acts of congress "shall be the supreme law of the respective states ... and that the judiciary of the several states shall be bound thereby in their decisions," and that "if any state or any body of men in any state shall oppose or prevent the carrying into execution of such acts or treaties the federal executive shall be authorized to call forth the power of the confederated states ... to enforce and compel obedience to such acts or an observance of such treaties." while this was some advance toward a truly national government, it yet left the national executive dependent upon the constituent states, for if they failed to respond to the call above stated the national government had no direct power over their citizens. the new jersey plan precipitated a crisis, and thereafter, and for many days, the argument proceeded, only to increase in bitterness. on june 18 alexander hamilton, who agreed with no one else, addressed the convention for the first time. he spoke for five hours and reviewed exhaustively the virginia and new jersey plans, and possibly the pinckney draft. even the fragment of the speech, as taken in long-hand by madison, shows that it was a masterly argument. he stated his belief "that the british government was the best in the world and that he doubted much whether anything short of it would do in america." he praised the british constitution, quoting monsieur necker as saying that "it was the only government in the world which unites government strength with individual security." he analysed and explained your constitution as it then was and advocated an elective monarchy in form though not in name. it is true that he called the executive a "governor" and not a king, but the governor, so-called, was to serve for life and was given not only "a negative on all laws about to be passed," but even the execution of all duly enacted laws was in his discretion. the governor, with the consent of the senate, was to make war, conclude all treaties, make all appointments, pardon all offences, with the full power through his negative of saying what laws should be passed and which enforced. hamilton's governor would have been not dissimilar to louis xiv, and could have said with him, "_l'ã©tat, c'est moi_!" the senate also served for life, and the only concession which hamilton made to democracy was an elective house of representatives. thinly veiled, his plan contemplated an elective king with greater powers than those of george iii, an imitation house of lords and a popular house of commons with a limited tenure. hamilton's plan was never taken seriously and, so far as the records show, was never afterwards considered. his admirers have given great praise to his work in the federal convention. his real contribution lay in the fact that when the constitution was finally drafted and offered to the people, while he regarded it as a "wretched makeshift," to use his own expression, yet he was broad and patriotic enough to surrender his own views and advocate the adoption of the constitution. in so doing, he fought a valorous fight, secured the acquiescence of the state of new york, and without its ratification the constitution would never have been adopted. hamilton later thought better of the constitution, and its successful beginning is due in large measure to his genius for constructive administration. as the debate proceeded, the crisis precipitated by the seemingly insoluble differences between the great and little states became more acute. the smaller states contended that the convention was transgressing its powers, and they demanded that the credentials of the various members be read. in this there was technical accuracy, for the delegates had been appointed to revise the articles of confederation and not to adopt a new constitution. a majority of the convention, however, insisted upon the convention proceeding with the consideration of a new constitution, and their views prevailed. it speaks well for the honour of the delegates that although their differences became so acute as to lead at times to bitter expressions, neither side divulged them to the outside public. the smaller states could easily have ended the convention by an appeal to public opinion, which was not then prepared for a "consolidated union," but they were loyal enough to fight out their quarrels within the walls of the convention hall. at times the debate became bitter in the extreme. james wilson, a delegate of pennsylvania and a scotchman by birth and education, turning to the representatives of the little states, passionately said: "will you abandon a country to which you are bound by so many strong and enduring ties? should the event happen, it will neither stagger my sentiments nor duty. if the minority of the people refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen on better grounds." he referred to the demand of the larger states that representation should be proportioned to the population. to this bedford, of delaware, as heatedly replied; "we have been told with a dictatorial air that this is the last moment for a fair trial in favour of good government. it will be the last, indeed, if the propositions reported by the committee go forth to the people. the large states dare not dissolve the convention. if they do, the small ones will find some foreign ally of more honour and good faith, who will take them by the hand and do them justice." finally, the smaller states gave their ultimatum to the larger states that unless representation in both branches of the proposed legislature should be on the basis of equality--each state, whether large or small, having one vote--they would forthwith leave the convention. an eye-witness says that, at that moment, washington, who was in the chair, gave old doctor franklin a significant look. franklin arose and moved an adjournment for forty-eight hours, with the understanding that the delegates should confer with those with whom they disagreed rather than with those with whom they agreed. a recess was taken, and when the convention re-convened on july 2, a vote was taken as to equality of representation in the senate and resulted in a tie vote. it was then decided to appoint a committee of eleven, one from each state, to consider the question, and this committee reported three days later, on july 5, in favour of proportionate representation in the house and equal representation in the senate. this suggestion, which finally saved the situation, was due to that wise old utilitarian philosopher, franklin. again, a vehement and passionate debate followed. vague references were made to the sword as the only method of solving the difference. on july 9 the committee again reported, maintaining the principle of their recommendation, while modifying its details, and the debate then turned upon the question to what extent the negro slaves should count in estimating population for the purposes of proportionate representation in the lower house. various suggestions were made to base representation upon wealth or taxation and not upon population. for several days the debate lasted during very heated weather, but on the night of july 12 the temperature dropped and with it the emotional temperature of the delegates. some days previous, namely, june 28, when the debates were becoming so bitter that it seemed unlikely that the convention could continue, doctor franklin, erroneously supposed by many to be an atheist, made the following solemn and beautiful appeal to their better natures. he said: "the small progress we have made after four or five weeks' close attendance and continual reasonings with each other--our different sentiments on almost every question, several of the last producing as many noes as ayes, is, methinks, a melancholy proof of the imperfection of the human understanding. we indeed seem to feel our own want of political wisdom, since we have been running about in search of it. we have gone back to ancient history for models of government, and examined the different forms of those republics which, having been formed with the seeds of their own dissolution, now no longer exist. and we have viewed modern states all around europe, but find none of their constitutions suitable to our circumstances. "in this situation of this assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, sir, that we have not hitherto once thought of humbly applying to the father of lights to illuminate our understandings?... and have we now forgotten that powerful friend or do we imagine that we no longer need his assistance? i have lived, sir, a long time, and the longer i live, the more convincing proofs i see of this truth: that _god governs in the affairs of men_. and if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? we have been assured, sir, in the sacred writings, that 'except the lord build the house they labour in vain that build it.' i firmly believe this; and i also believe that without his concurring aid we shall succeed in this political building no better than the builders of babel. we shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and byword down to future ages. and what is worse, mankind may hereafter from this unfortunate instance, despair of establishing governments by human wisdom and leave it to chance, war, and conquest. "i therefore beg leave to move that henceforth prayers imploring the assistance of heaven, and its blessings on our deliberations, be held in this assembly every morning before we proceed to business, and that one or more of the clergy of this city be requested to officiate in that service." it may surprise my audience to know the sequel. the resolution was voted down, partly on the ground that if it became known to the public that the convention had finally resorted to prayers it might cause undue alarm, but also because the convention was by that time so low in funds that, as one of the members said, it did not have enough money to pay a clergyman his fees for the service. i suspect that their controlling reason was their indisposition to break their self-imposed rule of secrecy by contact with the outer world until their work was completed. perhaps they thought that "god helps those who help themselves." on july 16 the compromise was finally adopted of recognizing the claims of the larger states to proportionate representation in the house of representatives, and recognizing the claims of the smaller states by according to them equal representation in the senate. this great result was not effected without the first break in the convention, for the delegates from new york left in disgust and never returned, with the exception of hamilton, who occasionally attended subsequent sessions. such was the great concession that was made to secure the constitution; and the only respect in which the constitution to-day cannot be amended is that by express provision the equality of representation in the senate shall never be disturbed. thus it is that to-day some states, which have less population than some of the wards in the city of new york, have as many votes in the senate as the great state of new york. it is unquestionably a palpable negation of majority rule, for as no measure can become a law without the concurrence of the senate--now numbering ninety-six senators--a combination of the little states, whoso aggregate population is not a fifth of the american people, can defeat the will of the remaining four-fifths. pennsylvania and new york, with nearly one-sixth of the entire population of the united states, have only four votes in ninety-six votes in the senate. fortunately, political alignments have rarely been between the greater and the smaller states exclusively. their equality in the senate was a big price to pay for the union, but, as the event has shown, not too great. the convention next turned its attention to the executive and the manner of its selection, and upon this point there was the widest contrariety of view, but, fortunately, without the acute feeling that the relative power of the states had occasioned. then the judiciary article was taken up, and there was much earnest discussion as to whether the new constitution should embody the french idea of giving to the judiciary, in conjunction with the executive, a revisory power over legislation. three times the convention voted upon this dangerous proposition, and on one occasion it was only defeated by a single vote. fortunately, the good sense of the convention rejected a proposition, that had caused in france constant conflicts between the executive and the judiciary, by substituting the right of the president to veto congressional legislation, with the right of congress, by a two-thirds vote of each house, to override the veto, and secondly by an implied power in the judiciary to annul congressional or state legislation, not on the grounds of policy, but on the sole ground of inconsistency with the paramount law of the constitution. in this adjustment, the influence of montesquieu was evident. these and many practical details had resulted in an expansion of the fifteen proposals of the virginia plan to twenty-three. having thus determined the general principles that should guide them in their labours, the convention, on july 26 appointed a committee on detail to embody these propositions in the formal draft of a constitution and adjourned until august 6 to await its report. that report, when finally completed, covered seven folio pages, and was found to consist of a preamble and twenty-three articles, embodying forty-three sections. the draft did not slavishly follow the virginia propositions, for the committee embodied some valuable suggestions which had occurred to them in their deliberations. nevertheless, it substantially put the virginia plan into a workable plan which proved to be the constitution of the united states in embryo. when the committee on detail had made its report on august 6, the convention proceeded for over a month to debate it with the most minute care. every day for five weeks, for five hours each day, the members studied and debated with meticulous care every sentence of the proposed constitution. time does not suffice even for the barest statement of the many interesting questions which were thus discussed, but they nearly ran the whole gamut of constitutional government. many fanciful ideas were suggested but with unvarying good sense they were rejected. some of the results were, under the circumstances, curious. for example, although it was a convention of comparatively young men, and although the convention could have taken into account the many successful young men in public life in europe--as, for example, william pitt--they put a disqualification upon age by providing that a representative must be twenty-five years of age, a senator thirty years of age, and a president thirty-five years of age. when it was suggested that young men could learn by admission to public life, the sententious reply was made that, while they could, they ought not to have their education at the public expense. the debates proceeded, however, in better temper, and almost the only question that again gave rise to passionate argument was that of slavery. the extreme southern states declared that they would never accept the new plan "except the right to import slaves be untouched." this question was finally compromised by agreeing that the importation of slaves should end after the year 1808. it however left the slave population then existing in a state of bondage, and for this necessary compromise the nation seventy-five years later was to pay dearly by one of the most destructive civil wars in the annals of mankind. august was now drawing to a close. the convention had been in session for more than three months. of its work the public knew nothing, and this notwithstanding the acute interest which the american people, not merely facing the peril of anarchy, but actually suffering from it, must have taken in the convention. its vital importance was not under-estimated. while its builders, like all master builders, did "build better than they knew," yet it cannot be said that they under-estimated the importance of their labours. as one of their number, gouveneur morris said: "the whole human race will be affected by the proceedings of this convention." after it adjourned one of its greatest participants, james wilson, of pennsylvania, said: "after the lapse of six thousand years since the creation of the world, america now presents the first instance of a people assembled to say deliberately and calmly and to decide leisurely and peaceably on the form of government by which they will bind themselves and their posterity." in the absence of any authentic information, the rumour spread through the colonies that the convention was about to reconstitute a monarchy by inviting the second son of george iii, the bishop of osnaburg, to be king of the united states; and these rumours became so persistent as to evoke from the silent convention a semi-official denial. there is some reason to believe that a minority of the convention did see in the restoration of a constitutional monarchy the only solution of the problem. on september 8 the committee had finally considered and, after modifications, approved the draft of the committee on detail, and a new committee was thereupon appointed "to revise the style of and arrange the articles that had been agreed to by the house." this committee was one of exceptional strength. there were dr. william samuel johnson, a graduate of oxford and a friend of his great namesake, samuel johnson; alexander hamilton, gouveneur morris, a brilliant mind with an unusual gift for lucid expression; james madison, a true scholar in politics, and rufus king, an orator who, in the inflated language of the day, "was ranked among the luminaries of the present age." the convention then adjourned to await the final revision of the draft by the committee on style. on september 12 the committee reported. while it is not certain, it is believed that its work was largely that of gouveneur morris. september 13 the printed copies of the report of the committee on style were ready, and three more days were spent by the convention in carefully comparing each article and section of this final draft. on september 15 the work of drafting the constitution was regarded as ended, and it was adopted and ordered to be engrossed for signing. it may be interesting at this point to give the result of their labours as measured in words, and if the framers of the constitution deserve the plaudits of posterity in no other respect they do in the remarkable self-restraint which those results revealed. the convention had been in session for 81 continuous days. probably they had consumed over 300 hours in debate. if their debates had been fully reported, they would probably have filled at least fifty volumes, and yet the net result of their labours consisted of about 4,000 words, 89 sentences, and about 140 distinct provisions. as the late lord bryce, speaking in this age of unbridled expression, both oral and printed, so well has said: "the constitution of the united states, including the amendments, may be read aloud in twenty-three minutes. it is about half as long as saint paul's epistle to the corinthians, and one-fourth as long as the irish land act of 1881. history knows few instruments which in so few words lay down equally momentous rules on a vast range of matters of the highest importance and complexity." even including the nineteen amendments, the constitution, after one hundred and thirty-five years of development, does not exceed 7,000 words. what admirable self-restraint! possibly single opinions of the supreme court could be cited which are as long as the whole document of which they are interpreting a single phrase. this does not argue that the constitution is an obscure document, for it would be difficult to cite any political document in the annals of mankind that was so simple and lucid in expression. there is nothing johnsonese about its style. every word is a word of plain speech, the ordinary meaning of which even the man in the street knows. no tautology is to be found and no attempt at ornate expression. it is a model of simplicity, and as it flows through the reaches of history it will always excite the admiration of those who love clarity and not rhetorical excesses. one can say of it as horace said of his favourite spring: _o, fons bandusiae, splendidior vitro. dulce digne mero, non sine floribus_. if i be asked why, if this be true, it has required many lengthy opinions of the supreme court in the 256 volumes of its reports to interpret its meaning, the answer is that, as with the simple sayings of the great galilean, whose words have likewise been the subject of unending commentary, the question is not one of clarity but of adaptation of the meaning to the ever-changing conditions of human life. moreover, as with the sayings of the master or the unequalled verse of shakespeare, questions of construction are more due to the commentators than to the text itself. on september 17 the convention met for the last time. the document was engrossed and laid before the members for signature. of the fifty-five members who had attended, only thirty-nine remained. of those, a number were unwilling to sign as individuals. while the members had not been unconscious of the magnitude of their labours, they were quite insensible of the magnitude of their achievement. few there were of the convention who were enthusiastic about this result. indeed, as the document was ready for signature, it became a grave question whether the remnant which remained had sufficient faith in their own work to subscribe their names, and if they failed to do so its adoption by the people would have been impossible. it was then that doctor franklin rendered one of the last and greatest services of his life. with ingratiating wit and with all the impressiveness that his distinguished career inspired, franklin thus spoke: "i confess that there are several parts of this constitution which i do not at present approve, but i am not sure i shall never approve them. for having lived long i have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which i once thought right, but found to be otherwise. it is therefore that the older i grow, the more apt i am to doubt my own judgment and to pay more respect to the judgment of others. most men indeed as well as most sects in religion think themselves in possession of all truth, and that wherever others differ from them it is so far error. steele, a protestant, in a dedication tells the pope that the only difference between our churches in their opinions of the certainty of their doctrines is, the church of rome is infallible and the church of england is never in the wrong. but though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said: 'i don't know how it happens, sister, but i meet with nobody but myself that's always in the right.'--_il n'y a que moi qui a toujours raison_. "in these sentiments, sir, i agree to this constitution with all its faults, if they are such; because i think a general government necessary for us, and there is no form of government but what may be a blessing to the people, if well administered, and i believe further that this is likely to be well administered for a course of years, and can only end in despotism as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other. i doubt, too, whether any other convention we can obtain may be able to make a better constitution. for when you assemble a number of men to have the advantage of their joint wisdom you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. from such an assembly can a perfect production be expected? it therefore astonishes me, sir, to find this system approaching so near to perfection as it does.... thus, i consent, sir, to this constitution because i expect no better, and because i am not sure that it is not the best. the opinions i have had of its errors i sacrifice to the public good, i have never whispered a syllable of them abroad. within these walls they were born and here they shall die. if every one of us in returning to our constituents were to report the objections he has had to it and endeavour to gain partisans in support of them, we might prevent its being generally received, and thereby lost all the salutary effects and great advantages resulting naturally in our favour among foreign nations as well as among ourselves from our real or apparent unanimity. "on the whole, sir, i cannot help expressing a wish that every member of the convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility--and to make manifest our unanimity, put his name to this instrument." truly this spirit of doctor franklin could be profitably invoked in this day and generation, when nations are so intolerant of the ideas of other nations. as the members, moved by franklin's humorous and yet moving appeal, came forward to subscribe their names, franklin drew the attention of some of the members to the fact that on the back of the president's chair was the half disk of a sun, and, with his love of metaphor, he said that painters had often found it difficult to distinguish in their art a rising from a setting sun. he then prophetically added: "i have often and often in the course of the sessions and the vicissitudes of my hopes and fears in its issues, looked at that behind the president without being able to tell whether it was rising or setting. but now at length i have the happiness to know that it is a rising and not a setting sun." time has verified the genial doctor's prediction. the career of the new nation thus formed has hitherto been a rising and not a setting sun. he had in his sixty years of conspicuously useful citizenship--and perhaps no nation ever had a more untiring and unselfish servant--done more than any american to develop the american commonwealth, but like moses, he was destined to see the promised land only from afar, for the new government had hardly been inaugurated, before franklin died, as full of years as honours. prophetic as was his vision, he could never have anticipated the reality of to-day, for this nation, thus deliberately formed in the light of reason and without blood or passion, is to-day, by common consent, one of the greatest and, i trust i may add, one of the noblest republics of all time. _iii. the political philosophy of the constitution_ in my last address i left doctor franklin predicting to the discouraged remnant of the constitutional convention that the nation then formed would be a "rising sun" in the constellation of the nations. the sun, however, was destined to rise through a bank of dark and murky clouds, for the constitution could not take effect until it was ratified by nine of the thirteen states; and when it was submitted to the people, who selected state conventions for the purpose of ratifying or rejecting the proposed plan of government, a bitter controversy at once ensued between two political parties, then in process of formation, one called the constitution ratified without controversy. in the remaining ten the struggle was long and arduous, and nearly a year passed before the requisite nine states gave their assent. two of the states refused to become parts of the new nation, even after it began, and three years passed before the thirteen states were re-united under the constitution. it could not have been ratified had there not been an assurance that there would be immediate amendments to provide a bill of rights to safeguard the individual. thus came into existence the first ten amendments to the constitution, with their perpetual guaranty of the fundamental rights of religion, freedom of speech and of the press, the right of assemblage, the immunity from unreasonable searches and seizures, the right of trial by jury, and similar guarantees of fundamental individual rights. distrustful as the american people were of the new constitution, they yet had the political sagacity to prefer its imperfections, whatever they imagined them to be, to the mad spirit of innovation; and in order that the great instrument should not, through the excesses of party passion or the temporary caprices of fleeting generations, speedily become a mere "scrap of paper" they very wisely provided that no amendment should, in the future, be made unless it was proposed by at least two-thirds of the senate and the house of representatives and ratified by three-fourths of the states through their legislatures or through special conventions. this was only one of many striking negations of the principle of majority rule. as a result of this provision, if we count the first ten amendments as virtually part of the original document, only nine amendments have been adopted in 185 years, and of these, excepting the amendments which ended slavery as the result of the civil war, only the last three, passed in recent years partly through the relaxing influence of the world war, mark a serious departure from the basic principles of the constitution. this stability is the more remarkable when we recall the profound and revolutionary change that has taken place in the social life of man since the constitution was adopted. it was framed at the very end of the pastoral-agricultural age of humanity. the industrial revolution, which has more profoundly affected man in the last century and a half than all the changes which had theretofore taken place in the life of man since the cave-dweller, was only then beginning. measured in terms of mechanical power, men when the constitution was formed were lilliputians as compared with the brobdingnagians of our day, when man outflies the eagle, outswims the fish, and by his conquest and utilization of the invisible forces of nature has become the superman; and yet the constitution of 1787 is, in most of its essential principles, still the constitution of 1922. this surely marks it as a marvel in statecraft and can only be explained by the fact that the constitution was developed by a people who, as "children brave and free of the great mother-tongue," had a real genius for self-government and its essential element, the spirit of self-restraint. while it is true that the _text_ of the instrument has suffered almost as little change as the nicene creed, yet it would be manifest error to suggest that in its development by practical application the constitution has not undergone great changes. the first and greatest of all its expounders, chief justice marshall, said, in one of his greatest opinions, that the constitution was- "intended to endure for ages to come, and consequently to be _adapted_ to the various crises of human affairs. to have prescribed the means by which government should in all future times execute its powers would have been to change entirely the character of the instrument and to give it the properties of a legal code. it would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been foreseen dimly, and can best be provided for as they occur." in this great purpose of enumerating rather than defining the powers of government its framers were supremely wise. while it was marvellously sagacious in what it provided, it was wise to the point of inspiration in what it left unprovided. nothing is more admirable than the self-restraint of men who, venturing upon an untried experiment, and after debating for four months upon the principles of government, were content to embody their conclusions in not more than four thousand words. to this we owe the elasticity of the instrument. its vitality is due to the fact that, by usage, judicial interpretation, and, when necessary, formal amendment, it can be thus adapted to the ever-accelerating changes of the most progressive age in history, and that a people have administered the constitution who, in the process of such adaptation, have generally shown the same spirit of conservative self-restraint as did the men who framed it. the constitution is neither, on the one hand, a gibraltar rock, which wholly resists the ceaseless washing of time or circumstance, nor is it, on the other hand, a sandy beach, which is slowly destroyed by the erosion of the waves. it is rather to be likened to a floating dock, which, while firmly attached to its moorings, and not therefore the caprice of the waves, yet rises and falls with the tide of time and circumstance. while in its practical adaptation to this complex age the men who framed it, if they could "revisit the glimpses of the moon," would as little recognize their own handiwork as their own nation, yet they would still be able to find in successful operation the essential principles which they embodied in the document more than a century ago. its success is also due to the fact that its framers were little influenced by the spirit of doctrinarianism. they were not empiricists, but very practical men. this is the more remarkable because they worked in a period of an emotional fermentation of human thought. the long-repressed intellect of man had broken into a violent eruption like that of a seemingly extinct volcano. from the middle of the eighteenth century until the end of the french revolution the masses everywhere were influenced by the emotional, and at times hysterical, abstractions of the french encyclopedists; and that these had influenced thought in the american colonies is readily shown in the preamble of the declaration of independence, with its unqualified assertion of the equality of men and the absolute right of self-determination. the declaration sought in its noble idealism to make the "world safe for democracy," but the constitution attempted the greater task of making democracy safe for the world by inducing a people to impose upon themselves salutary restraints upon majority rule. fortunately, the framers of the constitution had learned a rude and terrible lesson in the anarchy that had followed the war of independence. they were not so much concerned about the rights of man as about his duties, and their great purpose was to substitute for the visionary idealism of a rampant individualism the authority of law. of the hysteria of that time, which was about to culminate in the french revolution, there is no trace in the constitution. they were less concerned about rousseau's social contract than to restore law and order. hard realities and not generous and impossible abstractions interested them. they had suffered grievously for more than ten years from misrule and had a distaste for mere phrase-making, of which they had had a satiety, for the constitution, in which there is not a wasted word, is as cold and dry a document as a problem in mathematics or a manual of parliamentary law. its mandates have the simplicity and directness of the ten commandments, and, like the decalogue, it consists more of what shall not be done than what shall be done. in this freedom from empiricism and sturdy adherence to the realities of life, it can be profitably commended to all nations which may attempt a similar task. while the constitution apparently only deals with the practical and essential details of government, yet underlying these simply but wonderfully phrased delegations of power is a broad and accurate political philosophy, which goes far to state the "law and the prophets" of free government. these essential principles of the constitution may be briefly summarized as follows: 1. _the first is representative government_. nothing is more striking in the debates of the convention than the distrust of its members, with few exceptions, of what they called "democracy." by this term they meant the power of the people to legislate directly and without the intervention of chosen representatives. they believed that the utmost concession that could be safely made to democracy was the power to select suitable men to legislate for the common good, and nothing is more striking in the constitution than the care with which they sought to remove the powers of legislation from the _direct_ action of the people. nowhere in the instrument is there a suggestion of the initiative or referendum. even an amendment to the constitution could not be directly proposed by the people in the exercise of their residual power or adopted by them. as previously said, it could only be proposed by two-thirds of the house and the senate, and then could only become effective, if ratified by three-fourths of the states, acting, not by a popular vote, but through their chosen representatives either in their legislatures or special conventions. thus they denied the power of a majority to alter even the form of government. moreover, they gave to the president the power to nullify laws passed by a majority of the house and senate by his simple veto, and yet, fearful of an unqualified power of the president in this respect, they provided that the veto itself should be vetoed, if two-thirds of the senate and house concurred in such action. moreover, the great limitations of the constitution, which forbid the majority, or even the whole body of the house and senate, to pass laws either for want of authority or because they impair fundamental rights of individuals, are as emphatic a negation of an absolute democracy as can be found in any form of government. measured by present-day conventions of democracy, the constitution is an undemocratic document. the framers believed in representative government, to which they gave the name "republicanism" as the antithesis to "democracy." the members of the senate were to be selected by state legislatures, and the president himself was, as originally planned, to be selected by an electoral college similar to the college of cardinals. the debates are full of utterances which explain this attitude of mind. mr. gerry said: "the evils we experience flow from the excesses of democracy. the people are the dupes of pretended patriots." mr. randolph, the author of the virginia plan, observed that the general object of the constitution was to provide a cure for the evils under which the united states laboured; that in tracing these evils to their origin every man had found it in the tribulation and follies of democracy; that some check, therefore, was to be sought for against this tendency of our government. alexander hamilton remarked, on june 18, that- "the members most tenacious of republicanism were as loud as any in declaiming against the evils of democracy." he added: "give all the power to the many and they will oppress the few. give all the power to the few and they will oppress the many. both ought, therefore, to have the power that each may defend itself against the other." perhaps the attitude of the members is thus best expressed by james madison, in the 10th of the federalist papers: "a pure democracy, by which i mean a state consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. such democracies have ever been spectacles of turbulence and contention, and have often been found incompatible with the personal security and rights of property, and have generally been as short in their lives as they have been violent in their deaths." undoubtedly, the framers of the constitution in thus limiting popular rule did not take sufficient account of the genius of an english-speaking people. a few of their number recognized this. franklin, a self-made man, believed in democracy and doubted the efficacy of the constitution unless it was, like a pyramid, broad-based upon the will of the people. colonel mason, of virginia, who was also of the jeffersonian school of political philosophy, said: "notwithstanding the oppression and injustice experienced among us from democracy, the genius of the people is in favour of it, and the genius of the people must be consulted." in this they were true prophets, for the american people have refused to limit democracy as narrowly and rigidly as the framers of the constitution clearly intended. the most notable illustration of this is the selection of the president. it was never contemplated that the people should directly select the president, but that a chosen body of electors should, with careful deliberation, make this momentous choice. while, in form, the system persists to this day, from the very beginning the electors simply vote as the people who select them desire. it should here be noted that thomas jefferson, the great democrat and draftsman of the declaration of independence, was not a member of the convention. during its sessions he was in france. he was instrumental in securing the first ten amendments and the subsequent adaptation of the constitution to meet the democratic instincts of the american people is largely due to his great leadership. moreover, the spirit of representative government has greatly changed since the constitution was adopted. the ideal of the earlier time was that so nobly expressed by edmund burke in his address to the electors of bristol, for the framers believed that a representative held a judicial position of the most sacred character, and that he should vote as his judgment and conscience dictated without respect to the wishes of his constituents. to-day, and notably in the last half century, the contrary belief, due largely to jefferson's political ideals, has so influenced american politics that the representatives of the people, either in the legislature or the executive departments of the government, are considered by the masses as only the mouthpieces of the people who select them, and to ignore their wishes is regarded as virtually a betrayal of a trust and the negation of democracy. for this change in attitude there has been much justification, for in my country, as elsewhere, the people do not always select their best men as representatives, and, with the imperfections of human nature, there has been so much of ignorance and, at times, venality, that the instinct of the people is to take the conduct of affairs into their own hands. on the other hand, this change of attitude has led, in many instances, to government by organized minorities, for, with the division of the masses into political parties, it is easy for an organized minority to hold the balance of power, and thus impress its will upon majorities. time may yet vindicate the theory of the framers that the limit of democracy is the selection of true and tried representatives. 2. _the second and most novel principle of the constitution is its dual form of government._ this did constitute a unique contribution to the science of politics. this was early recognized by de tocqueville, one of the most acute students of the constitution, who said that it was based "upon a wholly, novel theory, which may be considered a great discovery in modern political science." previous to the constitution it had not been thought possible to divide sovereignty, or at least to have two different sovereignties moving as planets in the same orbit. therefore, all previous federated governments had been based upon the plan that a league could only effect its will through the constituent states and that the citizens in these states owed no direct allegiance to the league, but only to the states of which they were members. the constitution, however, developed the idea of a dual citizenship. while the people remained citizens of their respective states in the sphere of government which was reserved to the states, yet they directly became citizens of the central government, and, as such, ceased to be citizens of the several states in the sphere of government delegated to the central power; and this allegiance was enforced by the direct action of the central government on the citizens as individuals. thus has been developed one of the most intricately complex governmental systems in the world. at the time of the adoption of the constitution this division of jurisdiction was quite feasible, for, geographically, the various states were widely separated, and the lack of economic contact made it easy for each government to function without serious conflict. the framers, however, did not sufficiently reckon with the mechanical changes in society that were then beginning. they did not anticipate, and could not have anticipated, the centripetal influences of steam and electricity which have woven the american people into an indissoluble unit for commercial and many other purposes. as a result many laws of the federal government, in their incidences in this complex age, directly impinge upon rights of the state governments, and _vice versa_, and the practical application of the constitution has required a very subtle adaptation of a form of government which was enacted in a primitive age to a form of government of a complex age. take, for example, the power over commerce. according to the constitution, the federal government had plenary power over foreign commerce and commerce _between_ the states, but the power over commerce _within_ a state was reserved to state governments. this presupposed the power of government to divide commerce into two water-tight compartments, or, at least, to regard the two spheres of power as parallel lines that would never meet; whereas with the coming of the railroad, steamship and the telegraph commerce has become so unified that the parallel lines have become lines of interlacing zigzags. to adapt the commerce clause of the constitution to these changed conditions has required, in the highest degree, the constructive genius of the supreme court of the united states, and, in a series of very remarkable decisions, which are contained in 256 volumes of the official reports, that great tribunal has tried to draw a line between inter-state and domestic commerce as nearly to the original plans of the framers as it was possible; but obviously there has been so much adaptation to make this possible that if washington, franklin, madison and hamilton could revisit the nation they created they would not recognize their own handiwork. for the same reason, the dual system of government has been profoundly modified by the great elemental forces of our mechanical age, so that the scales, which try to hold in nice equipoise the federal government on the one hand and the states on the other, have been greatly disturbed. originally, the states were the powerful political entities, and the central government a mere agent for certain specific purposes; but, in the development of the constitution, the nation has naturally become of overshadowing importance, while the states have relatively steadily diminished in power and prestige. these inevitable tendencies in american politics are called "centralization," and while for nearly a century a great political party bitterly contested its steady progress, due to the centripetal influences above indicated, yet the contest was long since abandoned as a hopeless one, and the struggle to-day is rather to keep, so far as possible, the inevitable tendency measurably in check. nevertheless, it would be erroneous to suggest that the dual system of government is a failure. it still endures in providing a large measure of authority to the states in their purely domestic concerns, and, in a country that extends from the atlantic to the pacific, and from the lakes to the gulf, whose northern border is not very far from the arctic circle, and whose southern border is not many degrees from the equator, there are such differences in the habits, conventions, and ideals of the people that without this dual form of government the constitution would long since have broken down. it is not too much to say that the success with which the framers of the constitution reconciled national supremacy and efficiency with local self-government is one of the great achievements in the history of mankind. 3. _the third principle was the guaranty of individual liberty through constitutional limitations._ this marked another great contribution of america to the science of government. in all previous government building, the state was regarded as a sovereign, which could grant to individuals or classes, out of its plenary power, certain privileges or exemptions, which were called "liberties." thus the liberties which the barons wrung from king john at runnymede were virtually exemptions from the power of government. our fathers did not believe in the sovereignty of the state in the sense of absolute power, nor did they believe in the sovereignty of the people in that sense. the word "sovereignty" will not be found in the constitution or the declaration of independence. they believed that each individual, as a responsible moral being, had certain "inalienable rights" which neither the state nor the people could rightfully take from him. this conception of individualism, enforced in courts of law against executives and legislatures, was wholly new and is the distinguishing characteristic of american constitutionalism. as to such reserved rights, guaranteed by constitutional limitations, and largely by the first ten amendments to the constitution, a man, by virtue of his inherent and god-given dignity as a human soul, has rights, such as freedom of the press, liberty of speech, property rights, and religious freedom, which even one hundred millions of people cannot rightfully take from him, without amending the constitution. the framers did not believe that the oil of anointing that was supposed to sanctify the monarch and give him infallibility had fallen upon the "multitudinous tongue" of the people to give it either infallibility or omnipotence. they believed in individualism. they were animated by a sleepless jealousy of governmental power. they believed that the greater such power, the greater the danger of its abuse. they felt that the individual could generally best work out his own salvation, and that his constant prayer to government was that of diogenes to alexander: "keep out of my sunlight." the worth and dignity of the human soul, the free competition of man and man, the nobility of labour, the right to work, free from the tyranny of state or class, this was their gospel. socialism was to them abhorrent. this theory of government gave a new dignity to manhood. it said to the state: "there is a limit to your power. thus far and no further, and here shall thy proud waves be stayed." 4. _closely allied to this doctrine of limited governmental powers, even by a majority, is the fourth principle of an independent judiciary_. it is the balance wheel of the constitution, and to function it must be beyond the possibility of attack and destruction. my country was founded upon the rock of property rights and the sanctity of contracts. both the nation and the several states are forbidden to impair the obligation of contracts, or take away life, liberty, or property "without due process of law." the guarantee is as old as magna charta; for "due process of law" is but a paraphrase of "the law of the land," without which no freeman could be deprived of his liberties or possessions. "due process of law" means that there are certain fundamental principles of liberty, not defined or even enumerated in the constitution, but having their sanction in the free and enlightened conscience of just men, and that no man can be deprived of life, liberty, or property, except in conformity with these fundamental decencies of liberty. to protect these even against the will of a majority, however large, the judiciary was given unprecedented powers. it threw about the individual the solemn circle of the law. it made the judiciary the final conscience of the nation. your nation cherishes the same primal verities of liberty, but with you, the people in parliament, is the final judge. we, however, are not content that a majority of the legislature shall override inviolable individual rights, about which the judiciary is empowered to throw the solemn circle of the law. this august power has won the admiration of the world, and by many is regarded as a novel contribution to the science of government. the idea, however, was not wholly novel. as previously shown, four chief justices of england had declared that an act of parliament, if against common right and reason, could be treated as null and void; while in france the power of the judiciary to refuse efficacy to a law, unless sanctioned by the judiciary, had been the cause of a long struggle for at least three centuries between the french monarch and the courts of france. however, in england the doctrine of the common law yielded to the later doctrine of the omnipotence of parliament, while in france the revisory power of the judiciary was terminated by the french revolution. the united states, however, embodied it in its form of government and thus made the judiciary, and especially the supreme court, the balance wheel of the constitution. without such power the constitution could never have lasted, for neither executive officers nor legislatures are good judges of the extent of their own powers. nothing more strikingly shows the spirit of unity which the constitution brought into being than the unbroken success with which the supreme court has discharged this difficult and most delicate duty. the president is the commander-in-chief of the army and the navy and can call them to his aid. the legislature has almost unlimited power through its control of the public purse. the states have their power reinforced by armed forces, and some of them are as great in population and resources as many of the nations of europe. the supreme court, however, has only one officer to execute its decrees, called the united states marshal; and yet, without sword or purse, and with only a high sheriff to enforce its mandates, when the supreme court says to a president or to a congress or to the authorities of a great--and, in some respects, sovereign--state that they must do this or must refrain from doing that, the mandate is at once obeyed. here, indeed, is the american ideal of "a government of laws and not of men" most strikingly realized; and if the american constitution, as formulated and developed, had done nothing else than to establish in this manner the supremacy of law, even as against the overwhelming sentiment of the people, it would have justified the well-known encomium of mr. gladstone. it must be added, however, that in one respect this function of the judiciary has had an unfortunate effect in lessening rather than developing in the people the sense of constitutional morality. in your country the power of parliament is omnipotent, and yet in its legislation it voluntarily observes these great fundamental decencies of liberty which in the american constitution are protected by formal guarantees. this can only be true because either your representatives in parliament have a deep sense of constitutional morality, or that the constituencies which select them have so much sense of constitutional justice that their representatives dare not disregard these fundamental decencies of liberty. in the united states, however, the confidence that the supreme court will itself protect these guaranties of liberty has led to a diminution of the sense of constitutional morality, both in the people and their representatives. it abates the vigilance which is said to be ever the price of liberty. laws are passed which transgress the limitations of the constitution without adequate discussion as to their unconstitutional character, for the reason that the determination of this fact is erroneously supposed to be the exclusive function of the judiciary. the judiciary, contrary to the common supposition, has no plenary power to nullify unconstitutional laws. it can only do so when there is an irreconcilable and indubitable repugnancy between a law and the constitution; but obviously laws can be passed from motives that are anti-constitutional, and there is a wide sphere of political discretion in which many acts can be done which, while politically anti-constitutional, are not juridically unconstitutional. for this reason, the undue dependence upon the judiciary to nullify every law which either in form, necessary operation, or motive transgresses the constitution has so far lessened the vigilance of the people to protect their own constitution as to lead to its serious impairment. 5. _the fifth fundamental principle was a system of governmental checks and balances_. the founders of the republic were not enamoured of power. as they viewed human history, the worst evils of government were due to excessive concentration of power, which like othello's jealousy "makes the meat it feeds on." this system of checks and balances again illustrates that the constitution is the great negation of unrestrained democracy. the framers believed that a people was best governed that was least governed. therefore, their purpose was not so much to promote efficiency in legislation as to put a brake upon precipitate action. time does not suffice to state the intricate system of checks and balances whereby the legislature acts as a check upon the executive and the executive upon the legislature, and the supreme court upon both. when the republic was small, and its public affairs were few, this system of checks and balances worked admirably, but to-day, when the nation is one of the greatest in the world, and its public affairs are of the most important and complicated character, and often require speedy action, it may be questioned whether the system is not now an undue brake upon governmental efficiency, and does _not_ require some modification to ensure efficiency. indeed, it is a serious question with many thoughtful americans whether the growth of the united states has not put an excessive strain upon its governmental machinery. this system was in part due to the confident belief of the framers of the constitution in the montesquieu doctrine of the division of government into three independent departments--legislative, executive and judicial; but experience has shown how difficult it is to apply this doctrine in its literal rigidity. one result of the doctrine was the mistaken attempt to keep the legislative and the executive as far apart as possible. the cabinet system of parliamentary government was not adopted. while the president can appear before congress and express his views, his cabinet is without such right. in practice, the gulf is bridged by constant contact between the cabinet and the committees of congress, but this does not wholly secure speedy and efficient co-operation between the two departments. as i speak, a movement is in progress, with the sanction of president harding, to permit members of his cabinet to appear in congress and thus defend directly and in person the policies of the executive. this separation of the two departments, which causes so much friction, has been emphasized by one feature of the constitution which again marks its distrust of democracy, namely the fixed tenure of office. the constitution did not intend that public officials should rise or fall with the fleeting caprices of a constituency. it preferred to give the president and the members of congress a fixed term of office, and, however unpopular they might become temporarily, they should have the right and the opportunity to proceed even with unpopular policies, and thus challenge the final verdict of the people. if a parliamentary form of government, immediately responsive to current opinion as registered in elections, is the great desideratum, then the fixed tenure of offices is the vulnerable achilles-heel of our form of government. in other countries the executive cannot survive a vote of want of confidence by the legislature. in america, the president, who is merely the executive of the legislative will, continues for his prescribed term, though he may have wholly lost the confidence of the representatives of the people in congress. while this makes for stability in administration and keeps the ship of state on an even keel, yet it also leads to the fatalism of our democracy, and often the "native hue" of its resolution is thus "sicklied o'er with the pale cast of thought." take a striking instance. i am confident that after the sinking of the _lusitania_, the united states would have entered the world war, if president wilson's tenure of power had then depended upon a vote of confidence. 6. _the sixth fundamental principle is the joint power of the senate and the executive over the foreign relations of the government_. i need not dwell at length upon this unique feature of our constitutional system, for since the versailles treaty, the world has become well acquainted with our peculiar system under which treaties are made and war is declared or terminated. nothing, excepting the principle of local rule, was of deeper concern to the framers of the constitution. when it was framed, it was the accepted principle of all other nations that the control of the foreign relations of the government was the exclusive prerogative of the executive. in your country the only limitation upon that power was the control of parliament over the purse of the nation, and some of the great struggles in your history related to the attempt of the crown to exact money to carry on the wars without a parliament grant. the framers were unwilling to lodge any such power in the executive, however great his powers in other respects. this was primarily due to the conception of the states that then prevailed. while they had created a central government for certain specified purposes, they yet regarded themselves as sovereign nations, and their representatives in the senate were, in a sense, their ambassadors. they were as little inclined to permit the president of the united states to make treaties or declare war at will in their behalf as the european nations would be to-day to vest a similar authority in the league of nations. it was, therefore, first proposed that the power to make treaties and appoint diplomatic representatives should be vested exclusively in the senate, but as that body was not always in session, this plan was so far modified as to give the president, who is always acting, the power to _negotiate_ treaties "with the advice and consent of the senate." as to making war, the framers were not willing to entrust the power even to the president and the senators, and it was therefore expressly provided that only congress could take this momentous step. here, again, the theory of the constitution was necessarily somewhat modified in practical administration, for under the power of nominating diplomatic representatives, negotiating treaties, and in general, of executing the laws of the nation, the principle was soon evolved that the conduct of foreign affairs was primarily the function of the president, with the limitation that the senate must concur in diplomatic appointments and in the validity of treaties, and that only both houses of congress could jointly declare war. this cumbrous system necessarily required that the president in conducting the foreign relations of the government should keep in touch with the senate, and such was the accepted procedure throughout the history of the nation until president wilson saw fit to ignore the senate, even when the senate had indicated its dissent in advance to some of his policies at the versailles conference. i suppose that since that conference no part of our constitutional system has caused more adverse comment in europe than this system. it often handicaps the united states from taking a speedy and effectual part in international negotiations, although if the president and the senate be in harmony and collaborate in this joint responsibility, there is no necessary reason why this should be so. i share the view of many americans that this provision of the constitution was wise and salutary, especially at this time, when the united states has taken such an important position in the councils of civilization. the president is a very powerful executive, and his tenure, while short, is fixed. generally he is elected by little more than a majority of the people, and sometimes through the curious workings of the electoral college system, he has been only the choice of a minority of the electorate. for these reasons, the framers of the constitution were unwilling to vest in the president exclusively the immeasurable power of pledging the faith, man-power, and resources of the nation and of declaring war. the heterogeneous character of our population especially emphasizes the wisdom of this course, for it would be difficult, if not impossible, for an american president to make an offensive and defensive alliance with any nation or declare war against another nation without running counter to the racial interests and passions of a substantial part of the american nation. for better or worse, the united states has limited, but not destroyed, as the world war showed, its freedom to antagonize powerful nations from whose people it has drawn large numbers of its own citizenship. the domestic harmony of the nation requires that before the united states assumes treaty obligations or makes war such policy shall represent the largely preponderating sentiment of its people, and nothing could more effectually secure this end than to require the president, before making a treaty, to secure the assent of two-thirds of the senate and a majority of both houses of congress before making war. while this may lead, as it has in recent years, to temporary and regrettable embarrassments, yet in the long run, it is not only better for the united states, but it is even to the best interests of other nations, for in this way they are safeguarded against the possible action of an executive with whom racial instincts might still be very influential. in your country, where the government of the day is subject to immediate dismissal for want of confidence, such power over foreign relations can be safely entrusted to a few men, but in the united states, with its fixed tenures of office, a president could pledge the faith and involve his nation in war against the interests and will of the people. suppose the president had unlimited power over our foreign relations and that within the next ten years an american, whose parents were born in any european nation, was elected on purely domestic issues, he could, with his assured four years of power, bring about a new alignment of nations and shake the political equilibrium of the world. the constitution wisely refused to grant such a power. hence the provision for the concurrence of the legislative representatives of the nation. at all events, it constitutes a system which, as the last presidential election showed, the american people will not willingly forgo. it is true that this system makes it difficult for the united states to participate effectively in the main purpose of the league of nations to enforce peace by joint action at geneva, but to ask the united states to surrender a vital part of its constitutional system, upon which its domestic peace so largely depends, in order to promote the league, seems to me as unreasonable as it would be to ask your country to abolish the crown, to which it is sincerely attached as a vital part of its system, as a contribution towards international co-operation. you would not surrender such an integral part of your system, and therefore it is not reasonable to expect a similar sacrifice on our part, even though the meritorious purposes of the league be freely recognized. i have thus summarized briefly and most inadequately some of the essential principles of the constitution. i have only been able to suggest very impressionistically what they are and the lessons to be drawn from them. if i were able to deliver a dozen addresses on the subject in this historic hall and with this indulgent audience i would not scratch even the surface. to understand the constitution of the united states you must not only read the text but the thousands of opinions rendered in the last 130 years by the supreme court in its great task of interpreting this wonderful document. few documents have been the subject of more extended commentaries. the four thousand words have been meticulously examined through intellectual microscopes in judicial opinions, textbooks, and other commentaries which are as "thick as autumnal leaves that strow the brooks in vallombrosa." one can say of this document as dr. furness, in his variorum edition of _hamlet_, says of the words of that character: "no words by him let fall, no syllable by him uttered, but has been caught up and pondered, as no words except those of holy writ." but what of its future and how long will the constitution wholly resist the washing of time and circumstance? lord macaulay once ventured the prediction that the constitution would prove unworkable as soon as there were no longer large areas of undeveloped land and when the united states became a nation of great cities. that period of development has arrived. in 1880 only 15 per cent. of the american population lived in the cities and the remainder were still on the farms. to-day over 52 per cent, are crowded in one hundred great cities. lord macaulay added: "i believe america's fate is only deferred by physical causes. institutions purely democratic will sooner or later destroy liberty or civilization, or both.... the american constitution is all sail and no anchor." in this last commentary lord macaulay was clearly mistaken. as i have shown, the constitution is not "purely democratic." it is amazing that so great a mind should have so little understood that more than any other constitution, that of america imposes powerful restraints on democracy. the experience of a century and a quarter has shown that while the anchor may at times drag, yet it measurably holds the ship of state to its ancient moorings. the american constitution still remains in its essential principles and still enjoys not only the confidence but the affection of the great and varied people whom it rules. to the latter this remarkable achievement must be attributed rather than to any inherent strength in parchment or red seals, for in a democracy the living soul of any constitution must be such belief of the people in its wisdom and justice. if it should perish to-morrow, it would yet have enjoyed a life and growth of which any nation or age might be justly proud. moreover, it could claim with truth, if it finally perished, that it had been subjected to conditions for which it was never intended and that some of its essential principles had been ignored. the constitution is something more than a written formula of government--it is a great spirit. it is a high and noble assertion, and, indeed, vindication, of the morality of government. it "renders unto caesar [the political state] the things that are caesar's," but in safeguarding the fundamental moral rights of the people, it "renders unto god the things that are god's." in concluding, i cannot refrain from again reminding you that this consummate work of statecraft was the work of the english-speaking race, and that your people can therefore justly share in the pride which it awakens. it is not only one of the great achievements of that _gens aeterna_, but also one of the great monuments of human progress. it illustrates the possibilities of true democracy in its best estate. when the moral anarchy out of which it was born is called to mind, it can be truly said that while "sown in weakness, it was raised in power." to the succeeding ages, it will be a flaming beacon, and everywhere men, who are confronted with the acute problems of this complex age, can take encouragement from the fact that a small and weak people, when confronted with similar problems, had the strength and will to impose restraint upon themselves by peacefully proclaiming in the simple words of the noble preamble to the constitution: "we, the people of the united states, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america." note the words "ordain and establish." they imply perpetuity. they make no provision for the secession of any state, even if it deems itself aggrieved by federal action. and yet the right to secede was urged for many years, but lincoln completed the work of washington, franklin, madison and hamilton by establishing that "a government for the people, by the people and of the people should not perish from the earth." _iv. the revolt against authority_ "where there is no vision, the people perish: but he that keepeth the law, happy is he." proverbs xxix. 18. one of the most quoted--and also mis-quoted--proverbs of the wise solomon says, as translated in the authorized version: "where there is no vision, the people perish." what solomon actually said was: "where there is no vision, the people _cast off restraint_." the translator thus confused an effect with a cause. what was the vision to which the wise man referred? the rest of the proverb, which is rarely quoted, explains: "where there is no vision, the people cast off restraint: _but he that keepeth the law, happy is he_." the vision, then, is the authority of law, and solomon's warning is that to which the great and noble founder of pennsylvania, william penn, many centuries later gave utterance, when he said: "that government is free to the people under it, where the laws rule and the people are a party to those laws; and all the rest is tyranny, oligarchy and confusion." it is my present purpose to discuss the moral psychology of the present revolt against the spirit of authority. too little consideration has been paid by the legal profession to questions of moral psychology. these have been left to metaphysicians and ecclesiastics, and yet--to paraphrase the saying of the master--"the laws were made for man and not man for the laws," and if the science of the law ignores the study of human nature and attempts to conform man to the laws, rather than the laws to man, then its development is a very partial and imperfect one. let me first be sure of my premises. is there in this day and generation a spirit of lawlessness greater or different than that that has always characterized human society? such spirit of revolt against authority has always existed, even when the penalty of death was visited upon nearly all offences against life and property. blackstone tells us (book iv, chap. i) that in the eighteenth century it was a capital offence to cut down a cherry tree in an orchard--a drastic penalty which should increase our admiration for george washington's courage and veracity. we are apt to see the past in a golden haze, which obscures our vision. thus, we think of william penn's "holy experiment" on the banks of the delaware as the realization of sir thomas more's dream of utopia; and yet pennsylvania was somewhat intemperately called in 1698 "the greatest refuge for pirates and rogues in america," and penn himself wrote, about that time, that he had heard of no place which was "more overrun with wickedness" than his city of brotherly love, where things were so "openly committed in defiance of law and virtue--facts so foul that i am forbid by common modesty to relate them." conceding that lawlessness is not a novel phenomenon, is not the present time characterized by an exceptional revolt against the authority of law? the statistics of our criminal courts show in recent years an unprecedented growth in crimes. thus, in the federal courts, pending criminal indictments have increased from 9503 in the year 1912 to over 70,000 in the year 1921. while this abnormal increase is, in part, due to sumptuary legislation--for approximately 30,000 cases now pending arise under the prohibition statutes--yet, eliminating these, there yet remains an increase in nine years of over 400 per cent, in the comparatively narrow sphere of the federal criminal jurisdiction. i have been unable to get the data from the state courts; but the growth of crimes can be measured by a few illustrative statistics. thus, the losses from burglaries which have been repaid by casualty companies have grown in amount from $886,000 in 1914 to over $10,000,000 in 1920; and, in a like period, embezzlements have increased five-fold. it is notorious that the thefts from the mails and express companies and other carriers have grown to enormous proportions. the hold-up of railroad trains is now of frequent occurrence, and is not confined to the unsettled sections of the country. not only in the united states, but even in europe, such crimes of violence are of increasing frequency, and a recent dispatch from berne, under date of august 7, 1921, stated that the famous international expresses of europe were now run under a military guard. the streets of our cities, once reasonably secure from crimes of violence, have now become the field of operations for the foot-pad and highwayman. the days of dick turpin and jack sheppard have returned, with this serious difference--that the turpins and sheppards of our day are not dependent upon the horse, but have the powerful automobile to facilitate their crimes and make sure their escape. thus in chicago alone, 5000 automobiles were stolen in a single year. once murder was an infrequent and abnormal crime. to-day in our large cities it is of almost daily occurrence. in new york, in 1917, there were 236 murders and only 67 convictions; in 1918, 221, and 77 convictions. in chicago, in 1919, there were 336, and 44 convictions. when the crime wave was at its height a year ago, the police authorities in more than one american city confessed their impotence to impose effective restraints. life and property had seemingly become almost as insecure as during the middle ages.[3] [footnote 3: the reader will bear in mind that these words were spoken in august 1921. unquestionably, the situation has greatly improved during the present year(1922).] as to the subtler and more insidious crimes against the political state, it is enough to say that graft has become a science in city, state and nation. losses by such misapplication of public funds--piled pelion on ossa--no longer run in the millions but the hundreds of millions. our city governments are, in many instances, foul cancers on the body politic; and for us to boast of having solved the problem of local self-government is as fatuous as for a strong man to exult in his health when his body is covered with running sores. it has been estimated that the annual profits from violations of the prohibition laws have reached $300,000,000. men who thus violate these laws for sordid gain are not likely to obey other laws, and the respect for law among all classes steadily diminishes as our people become familiar with, and tolerant to, wholesale criminality. whether the moral and economic results of prohibition overbalance this rising wave of crime, time will tell. _in limine_, let us note the significant fact that this spirit of revolt against authority is not confined to the political state, and therefore its causes lie beyond that sphere of human action. human life is governed by all manner of man-made laws--laws of art, of social intercourse, of literature, music, business--all evolved by custom and imposed by the collective will of society. here we find the same revolt against tradition and authority. in music, its fundamental canons have been thrown aside and discord has been substituted for harmony as its ideal. its culmination--jazz--is a musical crime. if the forms of dancing and music are symptomatic of an age, what shall be said of the universal craze to indulge in crude and clumsy dancing to the vile discords of so-called "jazz" music? the cry of the time is: "on with the dance, let joy be" unrefined. in the plastic arts, the laws of form and the criteria of beauty have been swept aside by the futurists, cubists, vorticists, tactilists, and other aesthetic bolsheviki. in poetry, where beauty of rhythm, melody of sound and nobility of thought were once regarded as the true tests, we now have in freak forms of poetry the exaltation of the grotesque and brutal. hundreds of poets are feebly echoing the "barbaric yawp" of walt whitman, without the redeeming merit of his occasional sublimity of thought. in commerce, the revolt is against the purity of standards and the integrity of business morals. who can question that this is pre-eminently the age of the sham and the counterfeit? science is prostituted to deceive the public by cloaking the increasing deterioration in quality of merchandise. the blatant medium of advertising has become so mendacious as to defeat its own purpose. in the recent deflation in commodity values, there was widespread "welching" among business men who had theretofore been classed as reputable. of course, i recognize that a far greater number kept their contracts, even when it brought them to the verge of ruin. but when in the history of american business was there such a volume of broken faith as in the drastic deflation of 1920? in the greater sphere of social life, we find the same revolt against the institutions which have the sanction of the past. social laws, which mark the decent restraints of print, speech and dress, have in recent decades been increasingly disregarded. the very foundations of the great and primitive institutions of mankind--like the family, the church, and the state--have been shaken. nature itself is defied. thus, the fundamental difference of sex is disregarded by social and political movements which ignore the permanent differentiation of social function ordained by nature. all these are but illustrations of the general revolt against the authority of the past--a revolt that can be measured by the change in the fundamental presumption of men with respect to the value of human experience. in all former ages, all that was in the past was presumptively true, and the burden was upon him who sought to change it. to-day, the human mind apparently regards the lessons of the past as presumptively false--and the burden is upon him who seeks to invoke them. lest i be accused of undue pessimism, let me cite as a witness one who, of all men, is probably best equipped to express an opinion upon the moral state of the world. i refer to the venerable head of that religious organization[4] which, with its trained representatives in every part of the world, is probably better informed as to its spiritual state than any other organization. [footnote 4: reference is to the late pope benedict.] speaking last christmas eve, in an address to the college of cardinals, the venerable pontiff gave expression to an estimate of present conditions which should have attracted far greater attention than it apparently did. the pope said that five plagues were now afflicting humanity. the first was the unprecedented challenge to authority. the second, an equally unprecedented hatred between man and man. the third was the abnormal aversion to work. the fourth, the excessive thirst for pleasure as the great aim of life. the fifth, a gross materialism which denied the reality of the spiritual in human life. the accuracy of this indictment will commend itself to men who like myself are not of pope benedict's communion. i trust that i have already shown that the challenge to authority is universal and is not confined to that of the political state. even in the narrower confine of the latter, the fires of revolution are either violently burning, or, at least, smouldering. two of the oldest empires in the world, which, together, have more than half of its population (china and russia) are in a welter of anarchy; while many lesser nations are in a stage of submerged revolt. if the revolt were confined to autocratic governments, we might see in it merely a reaction against tyranny; but even in the most stable of democracies and among the most enlightened peoples, the underground rumblings of revolution may be heard. the government of italy has been preserved from overthrow, not alone by its constituted authorities, but by a band of resolute men, called the "fascisti," who have taken the law into their own hands, as did the vigilance committees in western mining camps, to put down worse disorders. even england, the mother of democracies, and the most stable of all governments in the maintenance of law, has been shaken to its very foundations in the last three years, when powerful groups of men attempted to seize the state by the throat and compel submission to their demands by threatening to starve the community. this would be serious enough if it were only the world-old struggle between capital and labour and had only involved the conditions of manual toil. but the insurrection against the political state in england was more political than it was economic. it marked, on the part of millions of men, a portentous decay of belief in representative government and its chosen organ--the ballot box. great and powerful groups had suddenly discovered--and it may be the most portentous political discovery of the twentieth century--that the power involved in their control over the necessaries of life, as compared with the power of the voting franchise, was as a forty-two centimetre cannon to the bow and arrow. the end sought to be attained, namely the nationalization of the basic industries, and even the control of the foreign policy of great britain, vindicated the truth of the british prime minister's statement that these great strikes involved something more than a mere struggle over the conditions of labour, and that they were essentially seditious attempts against the life of the state.[5] [footnote 5: i am here speaking of the conditions of 1920. i appreciate the great improvement, which seems to me to justify the lincoln-like patience of lloyd george.] nor were they altogether unsuccessful; for, when the armies of lenin and trotsky were at the gates of warsaw, in the summer of 1920, the attempts of the governments of england and belgium to afford assistance to the embattled poles were paralysed by the labour groups of both countries, who threatened a general strike if those two nations joined with france in aiding poland to resist a possibly greater menace to western civilization than has occurred since attila and his huns stood on the banks of the marne. of greater significance to the welfare of civilization is the complete subversion during the world war of nearly all the international laws which had been slowly built up in a thousand years. these principles, as codified by the two hague conventions, were immediately swept aside in the fierce struggle for existence, and civilized man, with his liquid fire and poison gas and his deliberate; attacks upon undefended cities and their women and children, waged war with the unrelenting ferocity of primitive times. surely, this fierce war of extermination, which caused the loss of three hundred billion dollars in property and thirty millions of human lives, did mark for the time being the "twilight of civilization." the hands on the dial of time had been put back--temporarily, let us hope and pray--a thousand years. nor will many question the accuracy of the second count in pope benedict's indictment. the war to end war only ended in unprecedented hatred between nation and nation, class and class, and man and man. victors and vanquished are involved in a common ruin. and if in this deluge of blood, which has submerged the world, there is a mount ararat, upon which the ark of a truer and better peace can find refuge, it has not yet appeared above the troubled surface of the waters. still less can one question the closely related third and fourth counts in pope benedict's indictment, namely the unprecedented aversion to work, when work is most needed to reconstruct the foundations of prosperity, or the excessive thirst for pleasure which preceded, accompanied, and now has followed the most terrible tragedy in the annals of mankind. the true spirit of work seems to have vanished from millions of men; that spirit of which shakespeare made his orlando speak when he said of his true servant, adam: "o good old man! how well in thee appears the constant service of the antique world. when service sweat for duty, not for meed!" the _moral_ of our industrial civilization has been shattered. work for work's sake, as the most glorious privilege of human faculties, has gone, both as an ideal and as a potent spirit. the conception of work as a degrading servitude, to be done with reluctance and grudging inefficiency, seems to be the ideal of millions of men of all classes and in all countries. the spirit of work is of more than sentimental importance. it may be said of it, as hamlet says of death: "the readiness is all." all of us are conscious of the fact that, given a love of work, and the capacity for it seems almost illimitable--as witness napoleon, with his thousand-man power, or shakespeare, who in twenty years could write more than twenty masterpieces. on the other hand, given an aversion to work, and the less a man does the less he wants to do, or is seemingly capable of doing. the great evil of the world to-day is this aversion to work. as the mechanical era diminished the element of physical exertion in work, we would have supposed that man would have sought expression for his physical faculties in other ways. on the contrary, the whole history of the mechanical era is a persistent struggle for more pay and less work, and to-day it has culminated in world-wide ruin; for there is not a nation in civilization which is not now in the throes of economic distress, and many of them are on the verge of ruin. in my judgment, the economic catastrophe of 1921 is far greater than the politico-military catastrophe of 1914. the results of these two tendencies, measured in the statistics of productive industry, are literally appalling. thus, in 1920, italy, according to statistics of her minister of labour, lost 55,000,000 days of work because of strikes alone. from july to september, many great factories were in the hands of revolutionary communists. a full third of these strikes had for their end political and not economic purposes. in germany, the progressive revolt of labour against work is thus measured by competent authority: there were lost in strikes in 1917, 900,000 working days; in 1918, 4,900,000, and, in 1919, 46,600,000. even in our own favoured land, the same phenomena are observable. in the state of new york alone for 1920, there was a loss due to strikes of over 10,000,000 working days. in all countries the losses by such cessations from labour are little as compared with those due to the spirit which in england is called "ca'-canny" or the shirking of performance of work, and of sabotage, which means the deliberate destruction of machinery in operation. everywhere the phenomenon has been observed that, with the highest wages known in the history of modern times, there has been an unmistakable lessening of efficiency, and that with an increase in the number of workers, there has been a decrease in output. thus, the transportation companies in the united states have seriously made a claim against the united states government for damages to their roads, amounting to $750,000,000, claimed to be due to the inefficiency of labour during the period of governmental operation. accompanying this indisposition to work efficiently has been a mad desire for pleasure, such as, if it existed in like measure in preceding ages, has not been seen within the memory of living man. man has danced upon the verge of a social abyss, and, as previously suggested, the dancing has, both in form and in accompanying music, lost its former grace and reverted to the primitive forms of crude vulgarity. which gives the spectators the maximum of emotional expression with the minimum of mental effort, had not been eclipsed by the splendour of a dempsey or a carpentier. of the last count in pope benedict's indictment, i shall say but little. it is more appropriate for the members of that great and noble profession which is more intimately concerned with the spiritual advance of mankind. it is enough to say that, while the church as an institution continues to exist, the belief in the supernatural and even in the spiritual has been supplanted in the souls of millions of men by a gross and debasing materialism. if my reader agrees with me in my premises then we are not likely to disagree in the conclusion that the causes of these grave symptoms are not ephemeral or superficial; but must have their origin in some deep-seated and world-wide change in human society. if there is to be a remedy, we must first diagnose this malady of the human soul. for example, let us not "lay the flattering unction to our souls" that this spirit is solely the reaction of the great war. the present weariness and lassitude of human spirit and the disappointment and disillusion as to the aftermath of the harvest of blood, may have aggravated, but they could not cause the symptoms of which i speak; for the very obvious reason that all these symptoms were in existence and apparent to a few discerning men for decades before the war. indeed, it is possible that the world war, far from causing the _malaise_ of the age, was, in itself, but one of its many symptoms. undoubtedly, there are many contributing causes which have swollen the turbid tide of this world-wide revolution against the spirit of authority. thus, the multiplicity of laws does not tend to develop a law-abiding spirit. this fact has often been noted. thus napoleon, on the eve of the 18th brumaire, complained that france, with a thousand folios of law, was a lawless nation. unquestionably, the political state suffers in authority by the abuse of legislation, and especially by the appeal to law to curb evils that are best left to individual conscience. in this age of democracy, the average individual is too apt to recognize two constitutions--one, the constitution of the state, and the second, an unwritten constitution, to him of higher authority, under which he believes that no law is obligatory which he regards as in excess of the true powers of government. of this latter spirit, the widespread violation of the prohibition law is a familiar illustration. a race of individualists obey reluctantly, when they obey at all, any laws which they regard as unreasonable or vexatious. indeed, they are increasingly opposed to any law, which affects their selfish interests. thus many good women are involuntary smugglers. they deny the authority of the state to impose a tax upon a paquin gown. the law's delays and laxity in administration breed a spirit of contempt, and too often invite men to take the law into their own hands. these causes are so familiar that their statement is a commonplace. proceeding to deeper and less recognized causes, some would attribute this spirit of lawlessness to the rampant individualism, which began in the eighteenth century, and which has steadily and naturally grown with the advance of democratic institutions. undoubtedly, the excessive emphasis upon the rights of man, which marked the political upheaval of the close of the eighteenth and the beginning of the nineteenth century, has contributed to this malady of the age. men talked, and still talk, loudly of their rights, but too rarely of their duties. and yet if we were to attribute the malady merely to excessive individualism, we would again err in mistaking a symptom for a cause. to diagnose truly this malady we must look to some cause that is coterminous in time with the disease itself and which has been operative throughout civilization. we must seek some widespread change in social conditions, for man's essential nature has changed but little, and the change must, therefore, be of environment. i know of but one such change that is sufficiently widespread and deep-seated to account adequately for this malady of our time. beginning with the close of the eighteenth century, and continuing throughout the nineteenth, a prodigious transformation has taken place in the environment of man, which has done more to revolutionize the conditions of human life than all the changes that had taken place in the 500,000 preceding years which science has attributed to man's life on the planet. up to the period of watt's discovery of steam vapour as a motive power, these conditions, so far as the principal facilities of life, were substantially those of the civilization which developed eighty centuries ago on the banks of the nile and later on the euphrates. man had indeed increased his conquest over nature in later centuries by a few mechanical inventions, such as gunpowder, telescope, magnetic needle, printing-press, spinning jenny, and hand-loom, but the characteristic of all those inventions, with the exception of gunpowder, was that they still remained a subordinate auxiliary to the physical strength and mental skill of man. in other words, man still dominated the machine, and there was still full play for his physical and mental faculties. moreover, all the inventions of preceding ages, from the first fashioning of the flint to the spinning-wheel and the hand-lever press, were all conquests of the tangible and visible forces of nature. with watt's utilization of steam vapour as a motive power, man suddenly passed into a new and portentous chapter of his varied history. thenceforth, he was to multiply his powers a thousandfold by the utilization of the invisible powers of nature--such as vapour and electricity. this prodigious change in his powers, and therefore his environment, has proceeded with ever-accelerating speed. man has suddenly become the superman. like the giants of the ancient fable, he has stormed the very ramparts of divine power, or, like prometheus, he has stolen fire of omnipotent forces from heaven itself for his use. his voice can now reach from the atlantic to the pacific, and, taking wing in his aeroplane, he can fly in one swift flight from nova scotia to england, or he can leave lausanne and, resting upon the icy summit of mont blanc--thus, like "the herald, mercury, new-lighted on a heaven-kissing hill"--he can again plunge into the void, and thus outfly the eagles themselves. in thus acquiring from the forces of nature almost illimitable power, he has minimized the necessity for his own physical exertion or even mental skill. the machine now not only acts for him, but too often _thinks_ for him. is it surprising that so portentous a change should have fevered his brain and disturbed his mental equilibrium? a new ideal, which he proudly called "progress," obsessed him, the ideal of quantity and not quality. his practical religion became that of acceleration and facilitation--to do things more quickly and easily--and thus to minimize exertion became his great objective. less and less he relied upon the initiative of his own brain and muscle, and more and more he put his faith in the power of machinery to relieve him of labour. the evil of our age is that its values are all false. it overrates speed, it underrates sureness; it overrates the new, it underrates the old; it overrates automatic efficiency, it underrates individual craftsmanship; it overrates rights, it underrates duties; it overrates political institutions, it underrates individual responsibility. we glory in the fact that we can talk a thousand miles, but we ignore the greater question, whether when we thus out-do stentor, we have anything worth saying. we have now made the serene spaces of the upper heavens our media to transmit market reports and sporting news, second-rate music and worse oratory and in the meantime the great masters of thought, homer and shakespeare, bach and beethoven remain unbidden on our library shelves. what a sordid vanity fair is our modern civilization! this incalculable multiplication of power has intoxicated man. the lust has obsessed him, without regard to whether it be constructive or destructive. quantity, not quality, becomes the great objective. man consumes the treasures of the earth faster than he produces them, deforesting its surface and disembowelling its hidden wealth. as he feverishly multiplied the things he desired, even more feverishly he multiplied his wants. to gain these, man sought the congested centres of human life. while the world, as a whole, is not over-populated, the leading countries of civilization were subjected to this tremendous pressure. europe, which, at the beginning of the nineteenth century, barely numbered 100,000,000 people, suddenly grew nearly five-fold. millions left the farms to gather into the cities to exploit their new and seemingly easy conquest over nature. in the united states, as recently as 1880, only 15 per cent. of the people were crowded in the cities, 85 per cent. remained upon the farms and still followed that occupation, which, of all occupations, still preserves, in its integrity, the dominance of human labour over the machine. to-day, 52 per cent. of the population is in the cities, and with many of them existence is both feverish and artificial. while they have employment, many of them do not themselves work, but spend their lives in watching machines work. the result has been a minute subdivision of labour that has denied to many workers the true significance and physical benefit of labour. the direct results of this excessive tendency to specialization, whereby not only the work but the worker becomes divided into mere fragments, are threefold. hobson, in his work on john ruskin, thus classifies them. in the first place, _narrowness_, due to the confinement to a single action in which the elements of human skill or strength are largely eliminated; secondly, _monotony_, in the assimilation of man to a machine, whereby seemingly the machine dominates man and not man the machine, and, thirdly, _irrationality_, in that work became dissociated in the mind of the worker with any complete or satisfying achievement. the worker does not see the fruit of his travail, and cannot therefore be truly satisfied. to spend one's life in opening a valve to make a part of a pin is, as ruskin pointed out, demoralizing in its tendencies. the clerk who only operates an adding machine has little opportunity for self-expression. thus, millions of men have lost both the opportunity for real physical exertion, the incentive to work in the joyous competition of skill, and finally the reward of work in the sense of achievement. more serious than this, however, has been the destructive effort of quantity, the great object of the mechanical age, at the expense of quality. take, for example, the printing-press: no one can question the immense advantages which have flowed from the increased facility for transmitting ideas. but may it not be true that the thousandfold increase in such transmission by the rotary press has also tended to muddy the current thought of the time? true it is that the printing-press has piled up great treasures of human knowledge which make this age the richest in accessible information. i am not speaking of knowledge, but rather of the current thought of the living generation. i gravely question whether it has the same clarity as the brain of the generation which fashioned the constitution of the united states. our fathers could not talk over the telephone for three thousand miles, but have we surpassed them in thoughts of enduring value? washington and franklin could not travel sixty miles an hour in a railroad train, or twice that speed in an aeroplane, but does it follow that they did not travel to as good purpose as we, who scurry to and fro like the ants in a disordered ant-heap? unquestionably, man of to-day has a thousand ideas suggested to him by the newspaper and the library where our ancestors had one; but have we the same spirit of calm inquiry and do we co-ordinate the facts we know as wisely as our ancestors did? athens in the days of pericles had but thirty thousand people and few mechanical inventions; but she produced philosophers, poets and artists, whose work after more than twenty centuries still remain the despair of the would-be imitators. shakespeare had a theatre with the ground as its floor and the sky as its ceiling; but new york, which has fifty theatres and annually spends $100,000,000 in the box offices of its varied amusement resorts, has rarely in two centuries produced a play that has lived. to-day, man has a cinematographic brain. a thousand images are impressed daily upon the screen of his consciousness, but they are as fleeting as moving pictures in a cinema theatre. the american press prints every year over 29,000,000,000 issues. no one can question its educational possibilities, for the best of all colleges is potentially the university of gutenberg. if it printed only the truth, its value would be infinite; but who can say in what proportions of this vast volume of printed matter is the true and the false? the framers of the constitution had few books and fewer newspapers. their thoughts were few and simple, but what they lacked in quantity they made up in unsurpassed quality. before the beginning of the present mechanical age, the current of living thought could be likened to a mountain stream, which though confined within narrow banks yet had waters of transparent clearness. may not the current thought of our time be compared with the mighty mississippi in the period of a spring freshet? its banks are wide and its current is swift, but the turbid stream that flows onward is one of muddy swirls and eddies and overflows its banks to their destruction. the great indictment, however, of the present age of mechanical power is that it has largely destroyed the spirit of work. the great enigma which it propounds to us, and which, like the riddle of the sphinx, we will solve or be destroyed, is this: _has the increase in the potential of human power, through thermodynamics, been accompanied by a corresponding increase in the potential of human character?_ to this life and death question, a great french philosopher, le bon, writing in 1910, replied that the one unmistakable symptom of human life was "the increasing deterioration in human character," and a great physicist has described the symptom as "the progressive enfeeblement of the human will." in a famous book, _degeneration_, written at the close of the nineteenth century, max nordau, as a pathologist, explains this tendency by arguing that our complex civilization has placed too great a strain upon the limited nervous organization of man. a great financier, the elder j.p. morgan, once said of an existing financial condition that it was suffering from "undigested securities," and, paraphrasing him, is it not possible that man is suffering from undigested achievements and that his salvation must lie in adaptation to a new environment, which, measured by any standard known to science, is a thousandfold greater in this year of grace than it was at the beginning of the nineteenth century? no one would be mad enough to urge such a retrogression as the abandonment of labour-saving machinery would involve. indeed, it would be impossible; for, in speaking of its evils, i freely recognize that not only would civilization perish without its beneficent aid, but that every step forward in the history of man has been coincident with, and in large part attributable to, a new mechanical invention. but suppose the development of labour-saving machinery should reach a stage where all human labour was eliminated, what would be the effect on man? the answer is contained in an experiment which sir john lubbock made with a tribe of ants. originally the most voracious and militant of their species, yet when denied the opportunity for exercise and freed from the necessity of foraging for their food, in three generations they became anaemic and perished. take from man the opportunity of work and the sense of pride in achievement and you have taken from him the very life of his existence. robert burns could sing as he drove his ploughshare through the fields of ayr. to-day millions who simply watch an automatic infallible machine, which requires neither strength nor skill, do not sing at their work but too many curse the fate, which has chained them, like ixion, to a soulless machine. the evil is even greater. the specialization of our modern mechanical civilization has caused a submergence of the individual into the group or class. man is fast ceasing to be the unit of human society. self-governing groups are becoming the new units. this is true of all classes of men, the employer as well as the employee. the true justification for the american anti-monopoly statutes, including the sherman anti-trust law, lies not so much in the realm of economics as in that of morals. with the submergence of the individual, whether he be capitalist or wage-earner, into a group, there has followed the dissipation of moral responsibility. a mass morality has been substituted for individual morality, and unfortunately, group morality generally intensifies the vices more than the virtues of man. possibly, the greatest result of the mechanical age is this spirit of organization. its merits are manifold and do not require statement; but they have blinded us to the demerits of excessive organization. we are now beginning to see--slowly, but surely--that a faculty of organization which, as such, submerged the spirit of individualism, is not an unmixed good. indeed, the moral lesson of the tragedy of germany is the demoralizing influence of organization carried to the _n_th power. no nation was ever more highly organized than this modern state. physically, intellectually and spiritually it had become a highly developed machine. its dominating mechanical spirit so submerged the individual that, in 1914, the paradox was observed of an enlightened nation that was seemingly destitute of a conscience. what was true of germany, however, was true--although in lesser degree--of all civilized nations. in all of them, the individual had been submerged in group formations, and the effect upon the character of man has been destructive of his nobler self. this may explain the paradox of so-called "progress." it may be likened to a great wheel, which, from the increasing domination of mechanical forces, developed an ever-accelerating speed, until, by centrifugal action, it went off its bearings in 1914 and caused an unprecedented catastrophe. as man slowly pulls himself out of that gigantic wreck and recovers consciousness, he begins to realize that speed is not necessarily progress. of all this, the nineteenth century, in its exultant pride in its conquest of the invisible forces, was almost blind. it not only accepted progress as an unmistakable fact--mistaking, however, acceleration and facilitation for progress--but in its mad folly believed in an immutable law of progress which, working with the blind forces of machinery, would propel man forward. a few men, however, standing on the mountain ranges of human observation, saw the future more clearly than did the mass. emerson, carlyle, ruskin, samuel butler, and max nordau, in the nineteenth century, and, in our time, ferrero, all pointed out the inevitable dangers of the excessive mechanization of human society. the prophecies were unhappily as little heeded as those of cassandra. one can see the tragedy of the time, as a few saw it, in comparing the first _locksley hall_ of alfred tennyson, written in 1827, with its abiding faith in the "increasing purpose of the ages" and its roseate prophecies of the golden age, when the "war-drum would throb no longer and the battle flags be furled in the parliament of man and the federation of the world," and the later _locksley hall_, written sixty years later, when the great spiritual poet of our time gave utterance to the dark pessimism which flooded his soul: "gone the cry of 'forward, forward,' lost within a growing gloom; lost, or only heard in silence from the silence of a tomb. half the marvels of my morning, triumphs over time and space, staled by frequence, shrunk by usage, into commonest commonplace! evolution ever climbing after some ideal good, and reversion ever dragging evolution in the mud. is it well that while we range with science, glorying in the time, city children soak and blacken soul and sense in city slime?" am i unduly pessimistic? i fear that this is the case with most men who, like dante, have crossed their fiftieth year and find themselves in a "dark and sombre wood." my reader will probably subject me to the additional reproach that i suggest no remedy. there are many palliatives for the evils which i have discussed. to rekindle in men the love of work for work's sake and the spirit of discipline, which the lost sense of human solidarity once inspired, would do much to solve the problem, for work is the greatest moral force in the world. but i must frankly add that i have neither the time nor the qualifications to discuss the solution of this grave problem. if we of this generation can only recognize that the evil exists, then the situation is not past remedy; for man has never yet found himself in a blind alley of negation. he is still "master of his soul and captain of his fate," and, to me, the most encouraging sign of the times is the persistent evidence of contemporary literature that thoughtful men now recognize that much of our boasted progress was as unreal as a rainbow. while the temper of the times seems for the moment pessimistic, it merely marks the recognition of man of an abyss whose existence he barely suspected but over which his indomitable courage will yet carry him. i have faith in the inextinguishable spark of the divine, which is in the human soul and which our complex mechanical civilization has not extinguished. of this, the world war was in itself a proof. all the horrible resources of mechanics and chemistry were utilized to coerce the human soul, and all proved ineffectual. never did men rise to greater heights of self-sacrifice or show a greater fidelity "even unto death." millions went to their graves, as to their beds, for an ideal; and when that is possible, this pandora's box of modern civilization, which contained all imaginable evils, as well as benefits, also leaves hope behind. i am reminded of a remark that the great roumanian statesman, taku jonescu, made during the peace conference at paris. when asked his views as to the future of civilization, he replied: "judged by the light of reason there is but little hope, but i have faith in man's inextinguishable impulse to live." happily, that cannot be affected by any change in man's environment! for even when the cave-man retreated from the advance of the polar cap, which once covered europe with arctic desolation, he not only defied the elements but showed even then the love of the sublime by beautifying the walls of his icy prison with those mural decorations which were the beginning of art. assuredly, the man of to-day, with the rich heritage of countless ages, can do no less. he has but to diagnose the evil and he will then, in some way, meet it. but what can man-made law do in this warfare against the blind forces of nature? it is easy to exaggerate the value of all political institutions; for they are generally on the surface of human life and do not reach down to the deep under-currents of human nature. but the law can do something to protect the soul of man from destruction by the soulless machine. it can defend the spirit of individualism. it must champion the human soul in its god-given right to exercise freely the faculties of mind and body. we must defend the right to work against those who would either destroy or degrade it. we must defend the right of every man, not only to join with others in protecting his interests, whether he is a brain worker or a hand worker--for without the right of combination the individual would often be the victim of giant forces--but we must vindicate the equal right of an individual, if he so wills, to depend upon his own strength. the tendency of group morality to standardize man--and thus reduce all men to the dead level of an average mediocrity--is one that the law should combat. its protection should be given to those of superior skill and diligence, who ask the due rewards of such superiority. any other course, to use the fine phrase of thomas jefferson in his first inaugural, is to "take from the mouth of labour the bread it has earned." of this spirit one of the noblest expressions is the constitution of the united states. that magna charta has not wholly escaped the destructive tendencies of a mechanical age. it was framed at the very end of the pastoral-agricultural age and at a time when the spirit of individualism was in full flower. the hardy pioneers who, with their axes, made straight the pathway of an advancing civilization, were sturdy men who need not be undervalued to us of the mechanical age. the "prairie schooner," which met the elemental forces of nature with the proud challenge: "pike's peak or bust," produced as fine a type of manhood as the age which travels either in mr. ford's "fliver" or the more luxurious rolls-royce. the constitution was framed in the period that marked the passing of the primitive age and the dawn of the day of the machine. watt had recently discovered the potency of steam vapour as a motive power; but its only use at first was for pumping water out of the mines. when the framers of the constitution met in high convention in philadelphia in the summer of 1787, a connecticut yankee, john fitch, was then also working in philadelphia upon his steamboat; but twenty years were to pass before the prow of the _clermont_ was to part the waters of the hudson, and nearly a half century before transportation was to be revolutionized by the utilization of watt's invention in the locomotive. of the wonders of the steamship, the railroad, the telegraphic cable, the wireless, the gasoline engine, and a thousand other mechanical miracles, the framers of the american constitution did not even dream. the greatest and noblest purpose of the constitution was not alone to hold in nicest equipose the relative powers of the nation and the states, but also to maintain in the scales of justice a true equilibrium between the rights of government and the rights of an individual. it did not believe that the state was omnipotent or infallible, and yet it proclaimed its authority within wise and just limits. it defended the integrity of the human soul. in other governments, these fundamental decencies of liberty rest upon the conscience of the legislature. under the american constitution, they are part of the fundamental law, and, as such, enforceable by judges sworn to defend the integrity of the individual as fully as the integrity of the state. when did a nobler "vision" inspire men in the political annals of mankind? without that vision to restrain each succeeding generation of americans from the tempting excesses of political power, the american commonwealth, with its great heterogeneous democracy, would probably perish. that vision still remains as an ideal with the american people and still leads them to ever-higher achievements, for in all the mad changes of a frenzied hour, they have not yet lost faith in or love for the constitution of the fathers! that vision will remain with them as long, and no longer, as there is in their hearts a conscious and willing acquiescence in its wisdom and justice. obviously, it can have no inherent vigour to perpetuate itself. if it ceases to be of the spirit of the people, then the yellow parchment whereon it is inscribed can avail nothing. when that parchment was last taken from the safe in the state department, the ink in which it had been engrossed nearly 134 years ago was found to have faded. all who believe in constitutional government must hope that this is not a portentous symbol. the american people must write the compact, not with ink upon parchment, but with "letters of living light"--to use webster's phrase--upon their hearts. again the solemn warning of the wise man of old recurs to us: "where there is no vision, the people perish; but he that keepeth the law, happy is he." the english constitution by walter bagehot contents i. introduction to the second edition. ii. the cabinet. iii. the monarchy. iv. the house of lords. v. the house of commons. vi. on changes of ministry. vii. its supposed checks and balances. viii. the prerequisites of cabinet government, and the peculiar form which they have assumed in england. ix. its history, and the effects of that history.--conclusion. no. i. introduction to the second edition. there is a great difficulty in the way of a writer who attempts to sketch a living constitution--a constitution that is in actual work and power. the difficulty is that the object is in constant change. an historical writer does not feel this difficulty: he deals only with the past; he can say definitely, the constitution worked in such and such a manner in the year at which he begins, and in a manner in such and such respects different in the year at which he ends; he begins with a definite point of time and ends with one also. but a contemporary writer who tries to paint what is before him is puzzled and a perplexed: what he sees is changing daily. he must paint it as it stood at some one time, or else he will be putting side by side in his representations things which never were contemporaneous in reality. the difficulty is the greater because a writer who deals with a living government naturally compares it with the most important other living governments, and these are changing too; what he illustrates are altered in one way, and his sources of illustration are altered probably in a different way. this difficulty has been constantly in my way in preparing a second edition of this book. it describes the english constitution as it stood in the years 1865 and 1866. roughly speaking, it describes its working as it was in the time of lord palmerston; and since that time there have been many changes, some of spirit and some of detail. in so short a period there have rarely been more changes. if i had given a sketch of the palmerston time as a sketch of the present time, it would have been in many points untrue; and if i had tried to change the sketch of seven years since into a sketch of the present time, i should probably have blurred the picture and have given something equally unlike both. the best plan in such a case is, i think, to keep the original sketch in all essentials as it was at first written, and to describe shortly such changes either in the constitution itself, or in the constitutions compared with it, as seem material. there are in this book various expressions which allude to persons who were living and to events which were happening when it first appeared; and i have carefully preserved these. they will serve to warn the reader what time he is reading about, and to prevent his mistaking the date at which the likeness was attempted to be taken. i proceed to speak of the changes which have taken place either in the constitution itself or in the competing institutions which illustrate it. it is too soon as yet to attempt to estimate the effect of the reform act of 1867. the people enfranchised under it do not yet know their own power; a single election, so far from teaching us how they will use that power, has not been even enough to explain to them that they have such power. the reform act of 1832 did not for many years disclose its real consequences; a writer in 1836, whether he approved or disapproved of them, whether he thought too little of or whether he exaggerated them, would have been sure to be mistaken in them. a new constitution does not produce its full effect as long as all its subjects were reared under an old constitution, as long as its statesmen were trained by that old constitution. it is not really tested till it comes to be worked by statesmen and among a people neither of whom are guided by a different experience. in one respect we are indeed particularly likely to be mistaken as to the effect of the last reform bill. undeniably there has lately been a great change in our politics. it is commonly said that "there is not a brick of the palmerston house standing". the change since 1865 is a change not in one point but in a thousand points; it is a change not of particular details but of pervading spirit. we are now quarrelling as to the minor details of an education act; in lord palmerston's time no such act could have passed. in lord palmerston's time sir george grey said that the disestablishment of the irish church would be an "act of revolution"; it has now been disestablished by great majorities, with sir george grey himself assenting. a new world has arisen which is not as the old world; and we naturally ascribe the change to the reform act. but this is a complete mistake. if there had been no reform act at all there would, nevertheless, have been a great change in english politics. there has been a change of the sort which, above all, generates other changes--a change of generation. generally one generation in politics succeeds another almost silently; at every moment men of all ages between thirty and seventy have considerable influence; each year removes many old men, makes all others older, brings in many new. the transition is so gradual that we hardly perceive it. the board of directors of the political company has a few slight changes every year, and therefore the shareholders are conscious of no abrupt change. but sometimes there is an abrupt change. it occasionally happens that several ruling directors who are about the same age live on for many years, manage the company all through those years, and then go off the scene almost together. in that case the affairs of the company are apt to alter much, for good or for evil; sometimes it becomes more successful, sometimes it is ruined, but it hardly ever stays as it was. something like this happened before 1865. all through the period between 1832 and 1865, the pre-'32 statesmen--if i may so call them--lord derby, lord russell, lord palmerston, retained great power. lord palmerston to the last retained great prohibitive power. though in some ways always young, he had not a particle of sympathy with the younger generation; he brought forward no young men; he obstructed all that young men wished. in consequence, at his death a new generation all at once started into life; the pre-'32 all at once died out. most of the new politicians were men who might well have been lord palmerston's grandchildren. he came into parliament in 1806, they entered it after 1856. such an enormous change in the age of the workers necessarily caused a great change in the kind of work attempted and the way in which it was done. what we call the "spirit" of politics is more surely changed by a change of generation in the men than by any other change whatever. even if there had been no reform act, this single cause would have effected grave alterations. the mere settlement of the reform question made a great change too. if it could have been settled by any other change, or even without any change, the instant effect of the settlement would still have been immense. new questions would have appeared at once. a political country is like an american forest; you have only to cut down the old trees, and immediately new trees come up to replace them; the seeds were waiting in the ground, and they began to grow as soon as the withdrawal of the old ones brought in light and air. these new questions of themselves would have made a new atmosphere, new parties, new debates. of course i am not arguing that so important an innovation as the reform act of 1867 will not have very great effects. it must, in all likelihood, have many great ones. i am only saying that as yet we do not know what those effects are; that the great evident change since 1865 is certainly not strictly due to it; probably is not even in a principal measure due to it; that we have still to conjecture what it will cause and what it will not cause. the principal question arises most naturally from a main doctrine of these essays. i have said that cabinet government is possible in england because england was a deferential country. i meant that the nominal constituency was not the real constituency; that the mass of the "ten-pound" house-holders did not really form their own opinions, and did not exact of their representatives an obedience to those opinions; that they were in fact guided in their judgment by the better educated classes; that they preferred representatives from those classes, and gave those representatives much licence. if a hundred small shopkeepers had by miracle been added to any of the '32 parliaments, they would have felt outcasts there. nothing could be more unlike those parliaments than the average mass of the constituency from which they were chosen. i do not of course mean that the ten-pound householders were great admirers of intellect or good judges of refinement. we all know that, for the most part, they were not so at all; very few englishmen are. they were not influenced by ideas, but by facts; not by things impalpable, but by things palpable. not to put too fine a point upon it, they were influenced by rank and wealth. no doubt the better sort of them believed that those who were superior to them in these indisputable respects were superior also in the more intangible qualities of sense and knowledge. but the mass of the old electors did not analyse very much: they liked to have one of their "betters" to represent them; if he was rich they respected him much; and if he was a lord, they liked him the better. the issue put before these electors was, which of two rich people will you choose? and each of those rich people was put forward by great parties whose notions were the notions of the rich--whose plans were their plans. the electors only selected one or two wealthy men to carry out the schemes of one or two wealthy associations. so fully was this so, that the class to whom the great body of the ten-pound householders belonged--the lower middle class--was above all classes the one most hardly treated in the imposition of the taxes. a small shopkeeper, or a clerk who just, and only just, was rich enough to pay income tax, was perhaps the only severely taxed man in the country. he paid the rates, the tea, sugar, tobacco, malt, and spirit taxes, as well as the income tax, but his means were exceedingly small. curiously enough the class which in theory was omnipotent, was the only class financially ill-treated. throughout the history of our former parliaments the constituency could no more have originated the policy which those parliaments selected than they could have made the solar system. as i have endeavoured to show in this volume, the deference of the old electors to their betters was the only way in which our old system could be maintained. no doubt countries can be imagined in which the mass of the electors would be thoroughly competent to form good opinions; approximations to that state happily exist. but such was not the state of the minor english shopkeepers. they were just competent to make a selection between two sets of superior ideas; or rather--for the conceptions of such people are more personal than abstract--between two opposing parties, each professing a creed of such ideas. but they could do no more. their own notions, if they had been cross-examined upon them, would have been found always most confused and often most foolish. they were competent to decide an issue selected by the higher classes, but they were incompetent to do more. the grave question now is, how far will this peculiar old system continue and how far will it be altered? i am afraid i must put aside at once the idea that it will be altered entirely and altered for the better. i cannot expect that the new class of voters will be at all more able to form sound opinions on complex questions than the old voters. there was indeed an idea--a very prevalent idea when the first edition of this book was published--that there then was an unrepresented class of skilled artisans who could form superior opinions on national matters, and ought to have the means of expressing them. we used to frame elaborate schemes to give them such means. but the reform act of 1867 did not stop at skilled labour; it enfranchised unskilled labour too. and no one will contend that the ordinary working man who has no special skill, and who is only rated because he has a house, can judge much of intellectual matters. the messenger in an office is not more intelligent than the clerks, not better educated, but worse; and yet the messenger is probably a very superior specimen of the newly enfranchised classes. the average can only earn very scanty wages by coarse labour. they have no time to improve themselves, for they are labouring the whole day through; and their early education was so small that in most cases it is dubious whether even if they had much time, they could use it to good purpose. we have not enfranchised a class less needing to be guided by their betters than the old class; on the contrary, the new class need it more than the old. the real question is, will they submit to it, will they defer in the same way to wealth and rank, and to the higher qualities of which these are the rough symbols and the common accompaniments? there is a peculiar difficulty in answering this question. generally, the debates upon the passing of an act contain much valuable instruction as to what may be expected of it. but the debates on the reform act of 1867 hardly tell anything. they are taken up with technicalities as to the ratepayers and the compound householder. nobody in the country knew what was being done. i happened at the time to visit a purely agricultural and conservative county, and i asked the local tories, "do you understand this reform bill? do you know that your conservative government has brought in a bill far more radical than any former bill, and that it is very likely to be passed?" the answer i got was, "what stuff you talk! how can it be a radical reform bill? why, bright opposes it!" there was no answering that in a way which a "common jury" could understand. the bill was supported by the times and opposed by mr. bright; and therefore the mass of the conservatives and of common moderate people, without distinction of party, had no conception of the effect. they said it was "london nonsense" if you tried to explain it to them. the nation indeed generally looks to the discussions in parliament to enlighten it as to the effect of bills. but in this case neither party, as a party, could speak out. many, perhaps most of the intelligent conservatives, were fearful of the consequences of the proposal; but as it was made by the heads of their own party, they did not like to oppose it, and the discipline of party carried them with it. on the other side, many, probably most of the intelligent liberals, were in consternation at the bill; they had been in the habit for years of proposing reform bills; they knew the points of difference between each bill, and perceived that this was by far the most sweeping which had ever been proposed by any ministry. but they were almost all unwilling to say so. they would have offended a large section in their constituencies if they had resisted a tory bill because it was too democratic; the extreme partisans of democracy would have said, "the enemies of the people have confidence enough in the people to entrust them with this power, but you, a 'liberal,' and a professed friend of the people, have not that confidence; if that is so, we will never vote for you again". many radical members who had been asking for years for household suffrage were much more surprised than pleased at the near chance of obtaining it; they had asked for it as bargainers ask for the highest possible price, but they never expected to get it. altogether the liberals, or at least the extreme liberals, were much like a man who has been pushing hard against an opposing door, till, on a sudden, the door opens, the resistance ceases, and he is thrown violently forward. persons in such an unpleasant predicament can scarcely criticise effectually, and certainly the liberals did not so criticise. we have had no such previous discussions as should guide our expectations from the reform bill, nor such as under ordinary circumstances we should have had. nor does the experience of the last election much help us. the circumstances were too exceptional. in the first place, mr. gladstone's personal popularity was such as has not been seen since the time of mr. pitt, and such as may never be seen again. certainly it will very rarely be seen. a bad speaker is said to have been asked how he got on as a candidate. "oh," he answered, "when i do not know what to say, i say 'gladstone,' and then they are sure to cheer, and i have time to think." in fact, that popularity acted as a guide both to constituencies and to members. the candidates only said they would vote with mr. gladstone, and the constituencies only chose those who said so. even the minority could only be described as anti-gladstone, just as the majority could only be described as pro-gladstone. the remains, too, of the old electoral organisation were exceedingly powerful; the old voters voted as they had been told, and the new voters mostly voted with them. in extremely few cases was there any new and contrary organisation. at the last election, the trial of the new system hardly began, and, as far as it did begin, it was favoured by a peculiar guidance. in the meantime our statesmen have the greatest opportunities they have had for many years, and likewise the greatest duty. they have to guide the new voters in the exercise of the franchise; to guide them quietly, and without saying what they are doing, but still to guide them. the leading statesmen in a free country have great momentary power. they settle the conversation of mankind. it is they who, by a great speech or two, determine what shall be said and what shall be written for long after. they, in conjunction with their counsellors, settle the programme of their party--the "platform," as the americans call it, on which they and those associated with them are to take their stand for the political campaign. it is by that programme, by a comparison of the programmes of different statesmen, that the world forms its judgment. the common ordinary mind is quite unfit to fix for itself what political question it shall attend to; it is as much as it can do to judge decently of the questions which drift down to it, and are brought before it; it almost never settles its topics; it can only decide upon the issues of those topics. and in settling what these questions shall be, statesmen have now especially a great responsibility if they raise questions which will excite the lower orders of mankind; if they raise questions on which those orders are likely to be wrong; if they raise questions on which the interest of those orders is not identical with, or is antagonistic to, the whole interest of the state, they will have done the greatest harm they can do. the future of this country depends on the happy working of a delicate experiment, and they will have done all they could to vitiate that experiment. just when it is desirable that ignorant men, new to politics, should have good issues, and only good issues, put before them, these statesmen will have suggested bad issues. they will have suggested topics which will bind the poor as a class together; topics which will excite them against the rich; topics the discussion of which in the only form in which that discussion reaches their ear will be to make them think that some new law can make them comfortable--that it is the present law which makes them uncomfortable--that government has at its disposal an inexhaustible fund out of which it can give to those who now want without also creating elsewhere other and greater wants. if the first work of the poor voters is to try to create a "poor man's paradise," as poor men are apt to fancy that paradise, and as they are apt to think they can create it, the great political trial now beginning will simply fail. the wide gift of the elective franchise will be a great calamity to the whole nation, and to those who gain it as great a calamity as to any. i do not of course mean that statesmen can choose with absolute freedom what topics they will deal with and what they will not. i am of course aware that they choose under stringent conditions. in excited states of the public mind they have scarcely a discretion at all; the tendency of the public perturbation determines what shall and what shall not be dealt with. but, upon the other hand, in quiet times statesmen have great power; when there is no fire lighted, they can settle what fire shall be lit. and as the new suffrage is happily to be tried in a quiet time, the responsibility of our statesmen is great because their power is great too. and the mode in which the questions dealt with are discussed is almost as important as the selection of these questions. it is for our principal statesmen to lead the public, and not to let the public lead them. no doubt when statesmen live by public favour, as ours do, this is a hard saying, and it requires to be carefully limited. i do not mean that our statesmen should assume a pedantic and doctrinaire tone with the english people; if there is anything which english people thoroughly detest, it is that tone exactly. and they are right in detesting it; if a man cannot give guidance and communicate instruction formally without telling his audience "i am better than you; i have studied this as you have not," then he is not fit for a guide or an instructor. a statesman who should show that gaucherie would exhibit a defect of imagination, and expose an incapacity for dealing with men which would be a great hindrance to him in his calling. but much argument is not required to guide the public, still less a formal exposition of that argument. what is mostly needed is the manly utterance of clear conclusions; if a statesman gives these in a felicitous way (and if with a few light and humorous illustrations, so much the better), he has done his part. he will have given the text, the scribes in the newspapers will write the sermon. a statesman ought to show his own nature, and talk in a palpable way what is to him important truth. and so he will both guide and benefit the nation. but if, especially at a time when great ignorance has an unusual power in public affairs, he chooses to accept and reiterate the decisions of that ignorance, he is only the hireling of the nation, and does little save hurt it. i shall be told that this is very obvious, and that everybody knows that 2 and 2 make 4, and that there is no use in inculcating it. but i answer that the lesson is not observed in fact; people do not so do their political sums. of all our political dangers, the greatest i conceive is that they will neglect the lesson. in plain english, what i fear is that both our political parties will bid for the support of the working man; that both of them will promise to do as he likes if he will only tell them what it is; that, as he now holds the casting vote in our affairs, both parties will beg and pray him to give that vote to them. i can conceive of nothing more corrupting or worse for a set of poor ignorant people than that two combinations of well-taught and rich men should constantly offer to defer to their decision, and compete for the office of executing it. vox populi will be vox diaboli if it is worked in that manner. and, on the other hand, my imagination conjures up a contrary danger. i can conceive that questions being raised which, if continually agitated, would combine the working men as a class together, the higher orders might have to consider whether they would concede the measure that would settle such questions, or whether they would risk the effect of the working men's combination. no doubt the question cannot be easily discussed in the abstract; much must depend on the nature of the measures in each particular case; on the evil they would cause if conceded; on the attractiveness of their idea to the working classes if refused. but in all cases it must be remembered that a political combination of the lower classes, as such and for their own objects, is an evil of the first magnitude; that a permanent combination of them would make them (now that so many of them have the suffrage) supreme in the country; and that their supremacy, in the state they now are, means the supremacy of ignorance over instruction and of numbers over knowledge. so long as they are not taught to act together, there is a chance of this being averted, and it can only be averted by the greatest wisdom and the greatest foresight in the higher classes. they must avoid, not only every evil, but every appearance of evil; while they have still the power they must remove, not only every actual grievance, but, where it is possible, every seeming grievance too; they must willingly concede every claim which they can safely concede, in order that they may not have to concede unwillingly some claim which would impair the safety of the country. this advice, too, will be said to be obvious; but i have the greatest fear that, when the time comes, it will be cast aside as timid and cowardly. so strong are the combative propensities of man that he would rather fight a losing battle than not fight at all. it is most difficult to persuade people that by fighting they may strengthen the enemy, yet that would be so here; since a losing battle--especially a long and well-fought one--would have thoroughly taught the lower orders to combine, and would have left the higher orders face to face with an irritated, organised, and superior voting power. the courage which strengthens an enemy and which so loses, not only the present battle, but many after battles, is a heavy curse to men and nations. in one minor respect, indeed, i think we may see with distinctness the effect of the reform bill of 1867. i think it has completed one change which the act of 1832 began; it has completed the change which that act made in the relation of the house of lords to the house of commons. as i have endeavoured in this book to explain, the literary theory of the english constitution is on this point quite wrong as usual. according to that theory, the two houses are two branches of the legislature, perfectly equal and perfectly distinct. but before the act of 1832 they were not so distinct; there was a very large and a very strong common element. by their commanding influence in many boroughs and counties the lords nominated a considerable part of the commons; the majority of the other part were the richer gentry--men in most respects like the lords, and sympathising with the lords. under the constitution as it then was the two houses were not in their essence distinct; they were in their essence similar; they were, in the main, not houses of contrasted origin, but houses of like origin. the predominant part of both was taken from the same class--from the english gentry, titled and untitled. by the act of 1832 this was much altered. the aristocracy and the gentry lost their predominance in the house of commons; that predominance passed to the middle class. the two houses then became distinct, but then they ceased to be co-equal. the duke of wellington, in a most remarkable paper, has explained what pains he took to induce the lords to submit to their new position, and to submit, time after time, their will to the will of the commons. the reform act of 1867 has, i think, unmistakably completed the effect which the act of 1832 began, but left unfinished. the middle class element has gained greatly by the second change, and the aristocratic element has lost greatly. if you examine carefully the lists of members, especially of the most prominent members, of either side of the house, you will not find that they are in general aristocratic names. considering the power and position of the titled aristocracy, you will perhaps be astonished at the small degree in which it contributes to the active part of our governing assembly. the spirit of our present house of commons is plutocratic, not aristocratic; its most prominent statesmen are not men of ancient descent or of great hereditary estate; they are men mostly of substantial means, but they are mostly, too, connected more or less closely with the new trading wealth. the spirit of the two assemblies has become far more contrasted than it ever was. the full effect of the reform act of 1832 was indeed postponed by the cause which i mentioned just now. the statesmen who worked the system which was put up had themselves been educated under the system which was pulled down. strangely enough, their predominant guidance lasted as long as the system which they created. lord palmerston, lord russell, lord derby, died or else lost their influence within a year or two of 1867. the complete consequences of the act of 1832 upon the house of lords could not be seen while the commons were subject to such aristocratic guidance. much of the change which might have been expected from the act of 1832 was held in suspense, and did not begin till that measure had been followed by another of similar and greater power. the work which the duke of wellington in part performed has now, therefore, to be completed also. he met the half difficulty; we have to surmount the whole one. we have to frame such tacit rules, to establish such ruling but unenacted customs, as will make the house of lords yield to the commons when and as often as our new constitution requires that it should yield. i shall be asked, how often is that, and what is the test by which you know it? i answer that the house of lords must yield whenever the opinion of the commons is also the opinion of the nation, and when it is clear that the nation has made up its mind. whether or not the nation has made up its mind is a question to be decided by all the circumstances of the case, and in the common way in which all practical questions are decided. there are some people who lay down a sort of mechanical test; they say the house of lords should be at liberty to reject a measure passed by the commons once or more, and then if the commons send it up again and again, infer that the nation is determined. but no important practical question in real life can be uniformly settled by a fixed and formal rule in this way. this rule would prove that the lords might have rejected the reform act of 1832. whenever the nation was both excited and determined, such a rule would be an acute and dangerous political poison. it would teach the house of lords that it might shut its eyes to all the facts of real life and decide simply by an abstract formula. if in 1832 the lords had so acted, there would have been a revolution. undoubtedly there is a general truth in the rule. whether a bill has come up once only, or whether it has come up several times, is one important fact in judging whether the nation is determined to have that measure enacted; it is an indication, but it is only one of the indications. there are others equally decisive. the unanimous voice of the people may be so strong, and may be conveyed through so many organs, that it may be assumed to be lasting. englishmen are so very miscellaneous, that that which has really convinced a great and varied majority of them for the present may fairly be assumed to be likely to continue permanently to convince them. one sort might easily fall into a temporary and erroneous fanaticism, but all sorts simultaneously are very unlikely to do so. i should venture so far as to lay down for an approximate rule, that the house of lords ought, on a first-class subject, to be slow--very slow--in rejecting a bill passed even once by a large majority of the house of commons. i would not of course lay this down as an unvarying rule; as i have said, i have for practical purposes no belief in unvarying rules. majorities may be either genuine or fictitious, and if they are not genuine, if they do not embody the opinion of the representative as well as the opinion of the constituency, no one would wish to have any attention paid to them. but if the opinion of the nation be strong and be universal, if it be really believed by members of parliament, as well as by those who send them to parliament, in my judgment the lords should yield at once, and should not resist it. my main reason is one which has not been much urged. as a theoretical writer i can venture to say, what no elected member of parliament, conservative or liberal, can venture to say, that i am exceedingly afraid of the ignorant multitude of the new constituencies. i wish to have as great and as compact a power as possible to resist it. but a dissension between the lords and commons divides that resisting power; as i have explained, the house of commons still mainly represents the plutocracy, the lords represent the aristocracy. the main interest of both these classes is now identical, which is to prevent or to mitigate the rule of uneducated numbers. but to prevent it effectually, they must not quarrel among themselves; they must not bid one against the other for the aid of their common opponent. and this is precisely the effect of a division between lords and commons. the two great bodies of the educated rich go to the constituencies to decide between them, and the majority of the constituencies now consist of the uneducated poor. this cannot be for the advantage of any one. in doing so besides the aristocracy forfeit their natural position--that by which they would gain most power, and in which they would do most good. they ought to be the heads of the plutocracy. in all countries new wealth is ready to worship old wealth, if old wealth will only let it, and i need not say that in england new wealth is eager in its worship. satirist after satirist has told us how quick, how willing, how anxious are the newly-made rich to associate with the ancient rich. rank probably in no country whatever has so much "market" value as it has in england just now. of course there have been many countries in which certain old families, whether rich or poor, were worshipped by whole populations with a more intense and poetic homage; but i doubt if there has ever been any in which all old families and all titled families received more ready observance from those who were their equals, perhaps their superiors, in wealth, their equals in culture, and their inferiors only in descent and rank. the possessors of the "material" distinctions of life, as a political economist would class them, rush to worship those who possess the immaterial distinctions. nothing can be more politically useful than such homage, if it be skilfully used; no folly can be idler than to repel and reject it. the worship is the more politically important because it is the worship of the political superior for the political inferior. at an election the non-titled are much more powerful than the titled. certain individual peers have, from their great possessions, great electioneering influence, but, as a whole, the house of peers is not a principal electioneering force. it has so many poor men inside it, and so many rich men outside it, that its electioneering value is impaired. besides, it is in the nature of the curious influence of rank to work much more on men singly than on men collectively; it is an influence which most men--at least most englishmen--feel very much, but of which most englishmen are somewhat ashamed. accordingly, when any number of men are collected together, each of whom worships rank in his heart, the whole body will patiently hear--in many cases will cheer and approve--some rather strong speeches against rank. each man is a little afraid that his "sneaking kindness for a lord," as mr. gladstone put it, be found out; he is not sure how far that weakness is shared by those around him. and thus englishmen easily find themselves committed to anti-aristocratic sentiments which are the direct opposite of their real feeling, and their collective action may be bitterly hostile to rank while the secret sentiment of each separately is especially favourable to rank. in 1832 the close boroughs, which were largely held by peers, and were still more largely supposed to be held by them, were swept away with a tumult of delight; and in another similar time of great excitement, the lords themselves, if they deserve it, might pass away. the democratic passions gain by fomenting a diffused excitement, and by massing men in concourses; the aristocratic sentiments gain by calm and quiet, and act most on men by themselves, in their families, and when female influence is not absent. the overt electioneering power of the lords does not at all equal its real social power. the english plutocracy, as is often said of something yet coarser, must be "humoured, not drove"; they may easily be impelled against the aristocracy, though they respect it very much; and as they are much stronger than the aristocracy, they might, if angered, even destroy it; though in order to destroy it, they must help to arouse a wild excitement among the ignorant poor, which, if once roused, may not be easily calmed, and which may be fatal to far more than its beginners intend. this is the explanation of the anomaly which puzzles many clever lords. they think, if they do not say, "why are we pinned up here? why are we not in the commons where we could have so much more power? why is this nominal rank given us, at the price of substantial influence? if we prefer real weight to unreal prestige, why may we not have it?" the reply is, that the whole body of the lords have an incalculably greater influence over society while there is still a house of lords, than they would have if the house of lords were abolished; and that though one or two clever young peers might do better in the commons, the old order of peers, young and old, clever and not clever, is much better where it is. the selfish instinct of the mass of peers on this point is a keener and more exact judge of the real world than the fine intelligence of one or two of them. if the house of peers ever goes, it will go in a storm, and the storm will not leave all else as it is. it will not destroy the house of peers and leave the rich young peers, with their wealth and their titles, to sit in the commons. it would probably sweep all titles before it--at least all legal titles--and somehow or other it would break up the curious system by which the estates of great families all go to the eldest son. that system is a very artificial one; you may make a fine argument for it, but you cannot make a loud argument, an argument which would reach and rule the multitude. the thing looks like injustice, and in a time of popular passion it would not stand. much short of the compulsory equal division of the code napoleon, stringent clauses might be provided to obstruct and prevent these great aggregations of property. few things certainly are less likely than a violent tempest like this to destroy large and hereditary estates. but then, too, few things are less likely than an outbreak to destroy the house of lords--my point is, that a catastrophe which levels one will not spare the other. i conceive, therefore, that the great power of the house of lords should be exercised very timidly and very cautiously. for the sake of keeping the headship of the plutocracy, and through that of the nation, they should not offend the plutocracy; the points upon which they have to yield are mostly very minor ones, and they should yield many great points rather than risk the bottom of their power. they should give large donations out of income, if by so doing they keep, as they would keep, their capital intact. the duke of wellington guided the house of lords in this manner for years, and nothing could prosper better for them or for the country, and the lords have only to go back to the good path in which he directed them. the events of 1870 caused much discussion upon life peerages, and we have gained this great step, that whereas the former leader of the tory party in the lords--lord lyndhurst--defeated the last proposal to make life peers, lord derby, when leader of that party, desired to create them. as i have given in this book what seemed to me good reasons for making them, i need not repeat those reasons here; i need only say how the notion stands in my judgment now. i cannot look on life peerages in the way in which some of their strongest advocates regard them; i cannot think of them as a mode in which a permanent opposition or a contrast between the houses of lords and commons is to be remedied. to be effectual in that way, life peerages must be very numerous. now the house of lords will never consent to a very numerous life peerage without a storm; they must be in terror to do it, or they will not do it. and if the storm blows strongly enough to do so much, in all likelihood it will blow strongly enough to do much more. if the revolution is powerful enough and eager enough to make an immense number of life peers, probably it will sweep away the hereditary principle in the upper chamber entirely. of course one may fancy it to be otherwise; we may conceive of a political storm just going to a life-peerage limit, and then stopping suddenly. but in politics we must not trouble ourselves with exceedingly exceptional accidents; it is quite difficult enough to count on and provide for the regular and plain probabilities. to speak mathematically, we may easily miss the permanent course of the political curve if we engross our minds with its cusps and conjugate points. nor, on the other hand, can i sympathise with the objection to life peerages which some of the radical party take and feel. they think it will strengthen the lords, and so make them better able to oppose the commons; they think, if they do not say: "the house of lords is our enemy and that of all liberals; happily the mass of it is not intellectual; a few clever men are born there which we cannot help, but we will not 'vaccinate' it with genius; we will not put in a set of clever men for their lives who may as likely as not turn against us". this objection assumes that clever peers are just as likely to oppose the commons as stupid peers. but this i deny. most clever men who are in such a good place as the house of lords plainly is, will be very unwilling to lose it if they can help it; at the clear call of a great duty they might lose it, but only at such a call. and it does not take a clever man to see that systematic opposition of the commons is the only thing which can endanger the lords, or which will make an individual peer cease to be a peer. the greater you make the sense of the lords, the more they will see that their plain interest is to make friends of the plutocracy, and to be the chiefs of it, and not to wish to oppose the commons where that plutocracy rules. it is true that a completely new house of lords, mainly composed of men of ability, selected because they were able, might very likely attempt to make ability the predominant power in the state, and to rival, if not conquer, the house of commons, where the standard of intelligence is not much above the common english average. but in the present english world such a house of lords would soon lose all influence. people would say, "it was too clever by half," and in an englishman's mouth that means a very severe censure. the english people would think it grossly anomalous if their elected assembly of rich men were thwarted by a nominated assembly of talkers and writers. sensible men of substantial means are what we wish to be ruled by, and a peerage of genius would not compare with it in power. it is true, too, that at present some of the cleverest peers are not so ready as some others to agree with the commons. but it is not unnatural that persons of high rank and of great ability should be unwilling to bend to persons of lower rank, and of certainly not greater ability. a few of such peers (for they are very few) might say, "we had rather not have our peerage if we are to buy it at the price of yielding". but a life peer who had fought his way up to the peers, would never think so. young men who are born to rank may risk it, not middle-aged or old men who have earned their rank. a moderate number of life peers would almost always counsel moderation to the lords, and would almost always be right in counselling it. recent discussions have also brought into curious prominence another part of the constitution. i said in this book that it would very much surprise people if they were only told how many things the queen could do without consulting parliament, and it certainly has so proved, for when the queen abolished purchase in the army by an act of prerogative (after the lords had rejected the bill for doing so), there was a great and general astonishment. but this is nothing to what the queen can by law do without consulting parliament. not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men); she could dismiss all the officers, from the general commanding-in-chief downwards; she could dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of cornwall, and begin a war for the conquest of brittany. she could make every citizen in the united kingdom, male or female, a peer; she could make every parish in the united kingdom a "university"; she could dismiss most of the civil servants; she could pardon all offenders. in a word, the queen could by prerogative upset all the action of civil government within the government, could disgrace the nation by a bad war or peace, and could, by disbanding our forces, whether land or sea, leave us defenceless against foreign nations. why do we not fear that she would do this, or any approach to it? because there are two checks--one ancient and coarse, the other modern and delicate. the first is the check of impeachment. any minister who advised the queen so to use her prerogative as to endanger the safety of the realm, might be impeached for high treason, and would be so. such a minister would, in our technical law, be said to have levied, or aided to levy, "war against the queen". this counsel to her so to use her prerogative would by the judge be declared to be an act of violence against herself, and in that peculiar but effectual way the offender could be condemned and executed. against all gross excesses of the prerogative this is a sufficient protection. but it would be no protection against minor mistakes; any error of judgment committed bona fide, and only entailing consequences which one person might say were good, and another say were bad, could not be so punished. it would be possible to impeach any minister who disbanded the queen's army, and it would be done for certain. but suppose a minister were to reduce the army or the navy much below the contemplated strength--suppose he were only to spend upon them one-third of the amount which parliament had permitted him to spend--suppose a minister of lord palmerston's principles were suddenly and while in office converted to the principles of mr. bright and mr. cobden, and were to act on those principles, he could not be impeached. the law of treason neither could nor ought to be enforced against an act which was an error of judgment, not of intention--which was in good faith intended not to impair the well-being of the state, but to promote and augment it. against such misuses of the prerogative our remedy is a change of ministry. and in general this works very well. every minister looks long before he incurs that penalty, and no one incurs it wantonly. but, nevertheless, there are two defects in it. the first is that it may not be a remedy at all; it may be only a punishment. a minister may risk his dismissal; he may do some act difficult to undo, and then all which may be left will be to remove and censure him. and the second is that it is only one house of parliament which has much to say to this remedy, such as it is; the house of commons only can remove a minister by a vote of censure. most of the ministries for thirty years have never possessed the confidence of the lords, and in such cases a vote of censure by the lords could therefore have but little weight; it would be simply the particular expression of a general political disapproval. it would be like a vote of censure on a liberal government by the carlton, or on a tory government by the reform club. and in no case has an adverse vote by the lords the same decisive effect as a vote of the commons; the lower house is the ruling and the choosing house, and if a government really possesses that, it thoroughly possesses nine-tenths of what it requires. the support of the lords is an aid and a luxury; that of the commons is a strict and indispensable necessary. these difficulties are particularly raised by questions of foreign policy. on most domestic subjects, either custom or legislation has limited the use of the prerogative. the mode of governing the country, according to the existing laws, is mostly worn into a rut, and most administrations move in it because it is easier to move there than anywhere else. most political crises--the decisive votes, which determine the fate of government--are generally either on questions of foreign policy or of new laws; and the questions of foreign policy come out generally in this way, that the government has already done something, and that it is for the one part of the legislature alone--for the house of commons, and not for the house of lords--to say whether they have or have not forfeited their place by the treaty they have made. i think every one must admit that this is not an arrangement which seems right on the face of it. treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous. in the older forms of the english constitution, this may have been quite right; the power was then really lodged in the crown, and because parliament met very seldom, and for other reasons, it was then necessary that, on a multitude of points, the crown should have much more power than is amply sufficient for it at present. but now the real power is not in the sovereign, it is in the prime minister and in the cabinet--that is, in the hands of a committee appointed by parliament, and of the chairman of that committee. now, beforehand, no one would have ventured to suggest that a committee of parliament on foreign relations should be able to commit the country to the greatest international obligations without consulting either parliament or the country. no other select committee has any comparable power; and considering how carefully we have fettered and limited the powers of all other subordinate authorities, our allowing so much discretionary power on matters peculiarly dangerous and peculiarly delicate to rest in the sole charge of one secret committee is exceedingly strange. no doubt it may be beneficial; many seeming anomalies are so, but at first sight it does not look right. i confess that i should see no advantage in it if our two chambers were sufficiently homogeneous and sufficiently harmonious. on the contrary, if those two chambers were as they ought to be, i should believe it to be a great defect. if the administration had in both houses a majority--not a mechanical majority ready to accept anything, but a fair and reasonable one, predisposed to think the government right, but not ready to find it to be so in the face of facts and in opposition to whatever might occur; if a good government were thus placed, i should think it decidedly better that the agreements of the administration with foreign powers should be submitted to parliament. they would then receive that which is best for all arrangements of business, an understanding and sympathising criticism, but still a criticism. the majority of the legislature, being well disposed to the government, would not "find" against it except it had really committed some big and plain mistake. but if the government had made such a mistake, certainly the majority of the legislature would find against it. in a country fit for parliamentary institutions, the partisanship of members of the legislature never comes in manifest opposition to the plain interest of the nation; if it did, the nation being (as are all nations capable of parliamentary institutions) constantly attentive to public affairs, would inflict on them the maximum parliamentary penalty at the next election and at many future elections. it would break their career. no english majority dare vote for an exceedingly bad treaty; it would rather desert its own leader than ensure its own ruin. and an english minority, inheriting a long experience of parliamentary affairs, would not be exceedingly ready to reject a treaty made with a foreign government. the leaders of an english opposition are very conversant with the school-boy maxim, "two can play at that fun". they know that the next time they are in office the same sort of sharp practice may be used against them, and therefore they will not use it. so strong is this predisposition, that not long since a subordinate member of the opposition declared that the "front benches" of the two sides of the house--that is, the leaders of the government and the leaders of the opposition--were in constant tacit league to suppress the objections of independent members. and what he said is often quite true. there are often seeming objections which are not real objections; at least, which are, in the particular cases, outweighed by counter-considerations; and these "independent members," having no real responsibility, not being likely to be hurt themselves if they make a mistake, are sure to blurt out, and to want to act upon. but the responsible heads of the party who may have to decide similar things, or even the same things themselves, will not permit it. they refuse, out of interest as well as out of patriotism, to engage the country in a permanent foreign scrape, to secure for themselves and their party a momentary home advantage. accordingly, a government which negotiated a treaty would feel that its treaty would be subject certainly to a scrutiny, but still to a candid and lenient scrutiny; that it would go before judges, of whom the majority were favourable, and among whom the most influential part of the minority were in this case much opposed to excessive antagonism. and this seems to be the best position in which negotiators can be placed, namely, that they should be sure to have to account to considerate and fair persons, but not to have to account to inconsiderate and unfair ones. at present the government which negotiates a treaty can hardly be said to be accountable to any one. it is sure to be subjected to vague censure. benjamin franklin said, "i have never known a peace made, even the most advantageous, that was not censured as inadequate, and the makers condemned as injudicious or corrupt. 'blessed are the peace-makers' is, i suppose, to be understood in the other world, for in this they are frequently cursed." and this is very often the view taken now in england of treaties. there being nothing practical in the opposition--nothing likely to hamper them hereafter--the leaders of opposition are nearly sure to suggest every objection. the thing is done and cannot be undone, and the most natural wish of the opposition leaders is to prove that if they had been in office, and it therefore had been theirs to do it, they could have done it much better. on the other hand, it is quite possible that there may be no real criticism on a treaty at all; or the treaty has been made by the government, and as it cannot be unmade by any one, the opposition may not think it worth while to say much about it. the government, therefore, is never certain of any criticism; on the contrary, it has a good chance of escaping criticism; but if there be any criticism the government must expect it to be bitter, sharp, and captious--made as an irresponsible objector would make it, and not as a responsible statesman, who may have to deal with a difficulty if he make it, and therefore will be cautious how he says anything which may make it. this is what happens in common cases; and in the uncommon--the ninety-ninth case in a hundred--in which the opposition hoped to turn out the government because of the alleged badness of the treaty they have made, the criticism is sure to be of the most undesirable character, and to say what is most offensive to foreign nations. all the practised acumen of anti-government writers and speakers is sure to be engaged in proving that england has been imposed upon--that, as was said in one case, "the moral and the intellectual qualities have been divided; that our negotiation had the moral, and the negotiation on the other side the intellectual," and so on. the whole pitch of party malice is then expended, because there is nothing to check the party in opposition. the treaty has been made, and though it may be censured, and the party which made it ousted, yet the difficulty it was meant to cure is cured, and the opposing party, if it takes office, will not have that difficulty to deal with. in abstract theory these defects in our present practice would seem exceedingly great, but in practice they are not so. english statesmen and english parties have really a great patriotism; they can rarely be persuaded even by their passions or their interest to do anything contrary to the real interest of england, or anything which would lower england in the eyes of foreign nations. and they would seriously hurt themselves if they did. but still these are the real tendencies of our present practice, and these are only prevented by qualities in the nation and qualities in our statesmen, which will just as much exist if we change our practice. it certainly would be in many ways advantageous to change it. if we require that in some form the assent of parliament shall be given to such treaties, we should have a real discussion prior to the making of such treaties. we should have the reasons for the treaty plainly stated, and also the reasons against it. at present, as we have seen, the discussion is unreal. the thing is done and cannot be altered; and what is said often ought not to be said because it is captious, and what is not said ought as often to be said because it is material. we should have a manlier and plainer way of dealing with foreign policy, if ministers were obliged to explain clearly their foreign contracts before they were valid, just as they have to explain their domestic proposals before they can become laws. the objections to this are, as far as i know, three, and three only. first, that it would not be always desirable for ministers to state clearly the motives which induced them to agree to foreign compacts. "treaties," it is said, "are in one great respect different from laws, they concern not only the government which binds, the nation so bound, but a third party too--a foreign country--and the feelings of that country are to be considered as well as our own. and that foreign country will, probably, in the present state of the world be a despotic one, where discussion is not practised, where it is not understood, where the expressions of different speakers are not accurately weighed, where undue offence may easily be given." this objection might be easily avoided by requiring that the discussion upon treaties in parliament like that discussion in the american senate should be "in secret session," and that no report should be published of it. but i should, for my own part, be rather disposed to risk a public debate. despotic nations now cannot understand england; it is to them an anomaly "chartered by providence"; they have been time out of mind puzzled by its institutions, vexed at its statesmen, and angry at its newspapers. a little more of such perplexity and such vexation does not seem to me a great evil. and if it be meant, as it often is meant, that the whole truth as to treaties cannot be spoken out, i answer, that neither can the whole truth as to laws. all important laws affect large "vested interests"; they touch great sources of political strength; and these great interests require to be treated as delicately, and with as nice a manipulation of language, as the feelings of any foreign country. a parliamentary minister is a man trained by elaborate practice not to blurt out crude things, and an english parliament is an assembly which particularly dislikes anything gauche or anything imprudent. they would still more dislike it if it hurt themselves and the country as well as the speaker. i am, too, disposed to deny entirely that there can be any treaty for which adequate reasons cannot be given to the english people, which the english people ought to make. a great deal of the reticence of diplomacy had, i think history shows, much better be spoken out. the worst families are those in which the members never really speak their minds to one another; they maintain an atmosphere of unreality, and every one always lives in an atmosphere of suppressed ill-feeling. it is the same with nations. the parties concerned would almost always be better for hearing the substantial reasons which induced the negotiators to make the treaty, and the negotiators would do their work much better, for half the ambiguities in treaties are caused by the negotiators not liking the fact or not taking the pains to put their own meaning distinctly before their own minds. and they would be obliged to make it plain if they had to defend it and argue on it before a great assembly. secondly, it may be objected to the change suggested that parliament is not always sitting, and that if treaties required its assent, it might have to be sometimes summoned out of season, or the treaties would have to be delayed. and this is as far as it goes a just objection, but i do not imagine that it goes far. the great bulk of treaties could wait a little without harm, and in the very few cases when urgent haste is necessary, an autumn session of parliament could well be justified, for the occasion must be of grave and critical importance. thirdly, it may be said that if we required the consent of both houses of parliament to foreign treaties before they were valid we should much augment the power of the house of lords. and this is also, i think, a just objection as far as it goes. the house of lords, as it cannot turn out the ministry for making treaties, has in no case a decisive weight in foreign policy, though its debates on them are often excellent; and there is a real danger at present in giving it such weight. they are not under the same guidance as the house of commons. in the house of commons, of necessity, the ministry has a majority, and the majority will agree to the treaties the leaders have made if they fairly can. they will not be anxious to disagree with them. but the majority of the house of lords may always be, and has lately been generally an opposition majority, and therefore the treaty may be submitted to critics exactly pledged to opposite views. it might be like submitting the design of an architect known to hold "mediaeval principles" to a committee wedded to "classical principles". still, upon the whole, i think the augmentation of the power of the peers might be risked without real fear of serious harm. our present practice, as has been explained, only works because of the good sense of those by whom it is worked, and the new practice would have to rely on a similar good sense and practicality too. the house of lords must deal with the assent to treaties as they do with the assent to laws; they must defer to the voice of the country and the authority of the commons even in cases where their own judgment might guide them otherwise. in very vital treaties probably, being englishmen, they would be of the same mind as the rest of englishmen. if in such cases they showed a reluctance to act as the people wished, they would have the same lesson taught them as on vital and exciting questions of domestic legislation, and the case is not so likely to happen, for on these internal and organic questions the interest and the feeling of the peers is often presumably opposed to that of other classes--they may be anxious not to relinquish the very power which other classes are anxious to acquire; but in foreign policy there is no similar antagonism of interest--a peer and a non-peer have presumably in that matter the same interest and the same wishes. probably, if it were considered to be desirable to give to parliament a more direct control over questions of foreign policy than it possesses now, the better way would be not to require a formal vote to the treaty clause by clause. this would entail too much time, and would lead to unnecessary changes in minor details. it would be enough to let the treaty be laid upon the table of both houses, say for fourteen days, and to acquire validity unless objected to by one house or other before that interval had expired. ii. this is all which i think i need say on the domestic events which have changed, or suggested changes, in the english constitution since this book was written. but there are also some foreign events which have illustrated it, and of these i should like to say a few words. naturally, the most striking of these illustrative changes comes from france. since 1789 france has always been trying political experiments, from which others may profit much, though as yet she herself has profited little. she is now trying one singularly illustrative of the english constitution. when the first edition of this book was published i had great difficulty in persuading many people that it was possible in a non-monarchical state, for the real chief of the practical executive--the premier as we should call him--to be nominated and to be removable by the vote of the national assembly. the united states and its copies were the only present and familiar republics, and in these the system was exactly opposite. the executive was there appointed by the people as the legislature was too. no conspicuous example of any other sort of republic then existed. but now france has given an example--m. thiers is (with one exception) just the chef du pouvoir executif that i endeavoured more than once in this book to describe. he is appointed by and is removable by the assembly. he comes down and speaks in it just as our premier does; he is responsible for managing it just as our premier is. no one can any longer doubt the possibility of a republic in which the executive and the legislative authorities were united and fixed; no one can assert such union to be the incommunicable attribute of a constitutional monarchy. but, unfortunately, we can as yet only infer from this experiment that such a constitution is possible; we cannot as yet say whether it will be bad or good. the circumstances are very peculiar, and that in three ways. first, the trial of a specially parliamentary republic, of a republic where parliament appoints the minister, is made in a nation which has, to say the least of it, no peculiar aptitude for parliamentary government; which has possibly a peculiar inaptitude for it. in the last but one of these essays i have tried to describe one of the mental conditions of parliamentary government, which i call "rationality," by which i do not mean reasoning power, but rather the power of hearing the reasons of others, of comparing them quietly with one's own reasons, and then being guided by the result. but a french assembly is not easy to reason with. every assembly is divided into parties and into sections of parties, and in france each party, almost every section of a party, begins not to clamour but to scream, and to scream as only frenchmen can, as soon as it hears anything which it particularly dislikes. with an assembly in this temper, real discussion is impossible, and parliamentary government is impossible too, because the parliament can neither choose men nor measures. the french assemblies under the restored monarchy seem to have been quieter, probably because being elected from a limited constituency they did not contain so many sections of opinion; they had fewer irritants and fewer species of irritability. but the assemblies of the '48 republic were disorderly in the extreme. i saw the last myself, and can certify that steady discussion upon a critical point was not possible in it. there was not an audience willing to hear. the assembly now sitting at versailles is undoubtedly also, at times, most tumultuous, and a parliamentary government in which it governs must be under a peculiar difficulty, because as a sovereign it is unstable, capricious, and unruly. the difficulty is the greater because there is no check, or little, from the french nation upon the assembly. the french, as a nation, do not care for or appreciate parliamentary government. i have endeavoured to explain how difficult it is for inexperienced mankind to take to such a government; how much more natural, that is, how much more easy to uneducated men is loyalty to a monarch. a nation which does not expect good from a parliament, cannot check or punish a parliament. france expects, i fear, too little from her parliaments ever to get what she ought. now that the suffrage is universal, the average intellect and the average culture of the constituent bodies are excessively low; and even such mind and culture as there is has long been enslaved to authority; the french peasant cares more for standing well with his present prefet than for anything else whatever; he is far too ignorant to check and watch his parliament, and far too timid to think of doing either if the executive authority nearest to him does not like it. the experiment of a strictly parliamentary republic--of a republic where the parliament appoints the executive--is being tried in france at an extreme disadvantage, because in france a parliament is unusually likely to be bad, and unusually likely also to be free enough to show its badness. secondly, the present polity of france is not a copy of the whole effective part of the british constitution, but only a part of it. by our constitution nominally the queen, but really the prime minister, has the power of dissolving the assembly. but m. thiers has no such power; and therefore, under ordinary circumstances, i believe, the policy would soon become unmanageable. the result would be, as i have tried to explain, that the assembly would be always changing its ministry, that having no reason to fear the penalty which that change so often brings in england, they would be ready to make it once a month. caprice is the characteristic vice of miscellaneous assemblies, and without some check their selection would be unceasingly mutable. this peculiar danger of the present constitution of france has however been prevented by its peculiar circumstances. the assembly have not been inclined to remove m. thiers, because in their lamentable present position they could not replace m. thiers. he has a monopoly of the necessary reputation. it is the empire--the empire which he always opposed--that has done him this kindness. for twenty years no great political reputation could arise in france. the emperor governed and no one member could show a capacity for government. m. rouher, though of vast real ability, was in the popular idea only the emperor's agent; and even had it been otherwise, m. rouher, the one great man of imperialism, could not have been selected as a head of the government, at a moment of the greatest reaction against the empire. of the chiefs before the twenty years' silence, of the eminent men known to be able to handle parliaments and to govern parliaments, m. thiers was the only one still physically able to begin again to do so. the miracle is, that at seventy-four even he should still be able. as no other great chief of the parliament regime existed, m. thiers is not only the best choice, but the only choice. if he were taken away, it would be most difficult to make any other choice, and that difficulty keeps him where he is. at every crisis the assembly feels that after m. thiers "the deluge," and he lives upon that feeling. a change of the president, though legally simple, is in practice all but impossible; because all know that such a change might be a change, not only of the president, but of much more too: that very probably it might be a change of the polity--that it might bring in a monarchy or an empire. lastly, by a natural consequence of the position, m. thiers does not govern as a parliamentary premier governs. he is not, he boasts that he is not, the head of a party. on the contrary, being the one person essential to all parties, he selects ministers from all parties, he constructs a cabinet in which no one minister agrees with any other in anything, and with all the members of which he himself frequently disagrees. the selection is quite in his hand. ordinarily a parliamentary premier cannot choose; he is brought in by a party; he is maintained in office by a party; and that party requires that as they aid him, he shall aid them; that as they give him the very best thing in the state, he shall give them the next best things. but m. thiers is under no such restriction. he can choose as he likes, and does choose. neither in the selection of his cabinet nor in the management of the chamber, is m. thiers guided as a similar person in common circumstances would have to be guided. he is the exception of a moment; he is not the example of a lasting condition. for these reasons, though we may use the present constitution of france as a useful aid to our imaginations, in conceiving of a purely parliamentary republic, of a monarchy minus the monarch, we must not think of it as much more. it is too singular in its nature and too peculiar in its accidents to be a guide to anything except itself. in this essay i made many remarks on the american constitution, in comparison with the english; and as to the american constitution we have had a whole world of experience since i first wrote. my great object was to contrast the office of president as an executive officer and to compare it with that of a prime minister; and i devoted much space to showing that in one principal respect the english system is by far the best. the english premier being appointed by the selection, and being removable at the pleasure, of the preponderant legislative assembly, is sure to be able to rely on that assembly. if he wants legislation to aid his policy he can obtain that legislation; he can carry out that policy. but the american president has no similar security. he is elected in one way, at one time, and congress (no matter which house) is elected in another way, at another time. the two have nothing to bind them together, and in matter of fact, they continually disagree. this was written in the time of mr. lincoln, when congress, the president, and all the north were united as one man in the war against the south. there was then no patent instance of mere disunion. but between the time when the essays were first written in the fortnightly, and their subsequent junction into a book, mr. lincoln was assassinated, and mr. johnson, the vice-president, became president, and so continued for nearly four years. at such a time the characteristic evils of the presidential system were shown most conspicuously. the president and the assembly, so far from being (as it is essential to good government that they should be) on terms of close union, were not on terms of common courtesy. so far from being capable of a continuous and concerted co-operation they were all the while trying to thwart one another. he had one plan for the pacification of the south and they another; they would have nothing to say to his plans, and he vetoed their plans as long as the constitution permitted, and when they were, in spite of him, carried, he, as far as he could (and this was very much), embarrassed them in action. the quarrel in most countries would have gone beyond the law, and come to blows; even in america, the most law-loving of countries, it went as far as possible within the law. mr. johnson described the most popular branch of the legislature--the house of representatives--as a body "hanging on the verge of government"; and that house impeached him criminally, in the hope that in that way they might get rid of him civilly. nothing could be so conclusive against the american constitution, as a constitution, as that incident. a hostile legislature and a hostile executive were so tied together, that the legislature tried, and tried in vain, to rid itself of the executive by accusing it of illegal practices. the legislature was so afraid of the president's legal power that it unfairly accused him of acting beyond the law. and the blame thus cast on the american constitution is so much praise to be given to the american political character. few nations, perhaps scarcely any nation, could have borne such a trial so easily and so perfectly. this was the most striking instance of disunion between the president and the congress that has ever yet occurred, and which probably will ever occur. probably for very many years the united states will have great and painful reason to remember that at the moment of all their history, when it was most important to them to collect and concentrate all the strength and wisdom of their policy on the pacification of the south, that policy was divided by a strife in the last degree unseemly and degrading. but it will be for a competent historian hereafter to trace out this accurately and in detail; the time is yet too recent, and i cannot pretend that i know enough to do so. i cannot venture myself to draw the full lessons from these events; i can only predict that when they are drawn, those lessons will be most important, and most interesting. there is, however, one series of events which have happened in america since the beginning of the civil war, and since the first publication of these essays, on which i should wish to say something in detail--i mean the financial events. these lie within the scope of my peculiar studies, and it is comparatively easy to judge of them, since whatever may be the case with refined statistical reasoning, the great results of money matters speak to and interest all mankind. and every incident in this part of american financial history exemplifies the contrast between a parliamentary and presidential government. the distinguishing quality of parliamentary government is, that in each stage of a public transaction there is a discussion; that the public assist at this discussion; that it can, through parliament, turn out an administration which is not doing as it likes, and can put in an administration which will do as it likes. but the characteristic of a presidential government is, in a multitude of cases, that there is no such discussion; that when there is a discussion the fate of government does not turn upon it, and, therefore, the people do not attend to it; that upon the whole the administration itself is pretty much doing as it likes, and neglecting as it likes, subject always to the check that it must not too much offend the mass of the nation. the nation commonly does not attend, but if by gigantic blunders you make it attend, it will remember it and turn you out when its time comes; it will show you that your power is short, and so on the instant weaken that power; it will make your present life in office unbearable and uncomfortable by the hundred modes in which a free people can, without ceasing, act upon the rulers which it elected yesterday, and will have to reject or re-elect to-morrow. in finance the most striking effect in america has, on the first view of it, certainly been good. it has enabled the government to obtain and to keep a vast surplus of revenue over expenditure. even before the civil war it did this--from 1837 to 1857. mr. wells tells us that, strange as it may seem, "there was not a single year in which the unexpended balance in the national treasury--derived from various sources--at the end of the year, was not in excess of the total expenditure of the preceding year; while in not a few years the unexpended balance was absolutely greater than the sum of the entire expenditure of the twelve months preceding". but this history before the war is nothing to what has happened since. the following are the surpluses of revenue over expenditure since the end of the civil war:- year ending june 30. surplus. (pounds) 1866 . . . . . . . . 5,593,000 1867 . . . . . . . . 21,586,000 1868 . . . . . . . . 4,242,000 1869 . . . . . . . . 7,418,000 1870 . . . . . . . . 18,627,000 1871 . . . . . . . . 16,712,000 no one who knows anything of the working of parliamentary government, will for a moment imagine that any parliament would have allowed any executive to keep a surplus of this magnitude. in england, after the french war, the government of that day, which had brought it to a happy end, which had the glory of waterloo, which was in consequence exceedingly strong, which had besides elements of strength from close boroughs and treasury influence such as certainly no government has ever had since, and such perhaps as no government ever had before--that government proposed to keep a moderate surplus and to apply it to the reduction of the debt, but even this the english parliament would not endure. the administration with all its power derived both from good and evil had to yield; the income tax was abolished, with it went the surplus, and with the surplus all chance of any considerable reduction of the debt for that time. in truth taxation is so painful that in a sensitive community which has strong organs of expression and action, the maintenance of a great surplus is excessively difficult. the opposition will always say that it is unnecessary, is uncalled for, is injudicious; the cry will be echoed in every constituency; there will be a series of large meetings in the great cities; even in the smaller constituencies there will mostly be smaller meetings; every member of parliament will be pressed upon by those who elect him; upon this point there will be no distinction between town and country, the country gentleman and the farmer disliking high taxes as much as any in the towns. to maintain a great surplus by heavy taxes to pay off debt has never yet in this country been possible, and to maintain a surplus of the american magnitude would be plainly impossible. some part of the difference between england and america arises undoubtedly not from political causes but from economical. america is not a country sensitive to taxes; no great country has perhaps ever been so unsensitive in this respect; certainly she is far less sensitive than england. in reality america is too rich; daily industry there is too common, too skilful, and too productive, for her to care much for fiscal burdens. she is applying all the resources of science and skill and trained labour, which have been in long ages painfully acquired in old countries, to develop with great speed the richest soil and the richest mines of new countries; and the result is untold wealth. even under a parliamentary government such a community could and would bear taxation much more easily than englishmen ever would. but difference of physical character in this respect is of little moment in comparison with difference of political constitution. if america was under a parliamentary government, she would soon be convinced that in maintaining this great surplus and in paying this high taxation she would be doing herself great harm. she is not performing a great duty, but perpetrating a great injustice. she is injuring posterity by crippling and displacing industry, far more than she is aiding it by reducing the taxes it will have to pay. in the first place, the maintenance of the present high taxation compels the retention of many taxes which are contrary to the maxims of free-trade. enormous customs duties are necessary, and it would be all but impossible to impose equal excise duties even if the americans desired it. in consequence, besides what the americans pay to the government, they are paying a great deal to some of their own citizens, and so are rearing a set of industries which never ought to have existed, which are bad speculations at present because other industries would have paid better, and which may cause a great loss out of pocket hereafter when the debt is paid off and the fostering tax withdrawn. then probably industry will return to its natural channel, the artificial trade will be first depressed, then discontinued, and the fixed capital employed in the trade will all be depreciated and much of it be worthless. secondly, all taxes on trade and manufacture are injurious in various ways to them. you cannot put on a great series of such duties without cramping trade in a hundred ways and without diminishing their productiveness exceedingly. america is now working in heavy fetters, and it would probably be better for her to lighten those fetters even though a generation or two should have to pay rather higher taxes. those generations would really benefit, because they would be so much richer that the slightly increased cost of government would never be perceived. at any rate, under a parliamentary government this doctrine would have been incessantly inculcated; a whole party would have made it their business to preach it, would have made incessant small motions in parliament about it, which is the way to popularise their view. and in the end i do not doubt that they would have prevailed. they would have had to teach a lesson both pleasant and true, and such lessons are soon learned. on the whole, therefore, the result of the comparison is that a presidential government makes it much easier than the parliamentary to maintain a great surplus of income over expenditure, but that it does not give the same facility for examining whether it be good or not good to maintain a surplus, and, therefore, that it works blindly, maintaining surpluses when they do extreme harm just as much as when they are very beneficial. in this point the contrast of presidential with parliamentary government is mixed; one of the defects of parliamentary government probably is the difficulty under it of maintaining a surplus revenue to discharge debt, and this defect presidential government escapes, though at the cost of being likely to maintain that surplus upon inexpedient occasions as well as upon expedient. but in all other respects a parliamentary government has in finance an unmixed advantage over the presidential in the incessant discussion. though in one single case it produces evil as well as good, in most cases it produces good only. and three of these cases are illustrated by recent american experience. first, as mr. goldwin smith--no unfavourable judge of anything american--justly said some years since, the capital error made by the united states government was the "legal tender act," as it is called, by which it made inconvertible paper notes issued by the treasury the sole circulating medium of the country. the temptation to do this was very great, because it gave at once a great war fund when it was needed, and with no pain to any one. if the notes of a government supersede the metallic currency medium of a country to the extent of $80,000,000, this is equivalent to a recent loan of $80,000,000 to the government for all purposes within the country. whenever the precious metals are not required, and for domestic purposes in such a case they are not required, notes will buy what the government want, and it can buy to the extent of its issue. but, like all easy expedients out of a great difficulty, it is accompanied by the greatest evils; if it had not been so, it would have been the regular device in such cases, and the difficulty would have been no difficulty at all; there would have been a known easy way out of it. as is well known, inconvertible paper issued by government is sure to be issued in great quantities, as the american currency soon was; it is sure to be depreciated as against coin; it is sure to disturb values and to derange markets; it is certain to defraud the lender; it is certain to give the borrower more than he ought to have. in the case of america there was a further evil. being a new country, she ought in her times of financial want to borrow of old countries; but the old countries were frightened by the probable issue of unlimited inconvertible paper, and they would not lend a shilling. much more than the mercantile credit of america was thus lost. the great commercial houses in england are the most natural and most effectual conveyers of intelligence from other countries to europe. if they had been financially interested in giving in a sound report as to the progress of the war, a sound report we should have had. but as the northern states raised no loans in lombard street (and could raise none because of their vicious paper money), lombard street did not care about them, and england was very imperfectly informed of the progress of the civil struggle, and on the whole matter, which was then new and very complex, england had to judge without having her usual materials for judgment, and (since the guidance of the "city" on political matter is very quietly and imperceptibly given) without knowing she had not those materials. of course, this error might have been committed, and perhaps would have been committed under a parliamentary government. but if it had, its effects would ere long have been thoroughly searched into and effectually frustrated. the whole force of the greatest inquiring machine and the greatest discussing machine which the world has ever known would have been directed to this subject. in a year or two the american public would have had it forced upon them in every form till they must have comprehended it. but under the presidential form of government, and owing to the inferior power of generating discussion, the information given to the american people has been imperfect in the extreme. and in consequence, after nearly ten years of painful experience, they do not now understand how much they have suffered from their inconvertible currency. but the mode in which the presidential government of america managed its taxation during the civil war, is even a more striking example of its defects. mr. wells tells us:-"in the outset all direct or internal taxation was avoided, there having been apparently an apprehension on the part of congress, that inasmuch as the people had never been accustomed to it, and as all machinery for assessment and collection was wholly wanting, its adoption would create discontent, and thereby interfere with a vigorous prosecution of hostilities. congress, therefore, confined itself at first to the enactment of measures looking to an increase of revenue from the increase of indirect taxes upon imports; and it was not until four months after the actual outbreak of hostilities that a direct tax of $20,000,000 per annum was apportioned among the states, and an income tax of 3 per cent. on the excess of all incomes over $800 was provided for; the first being made to take effect practically eight, and the second ten months after date of enactment. such laws of course took effect, and became immediately operative in the loyal states only, and produced but comparatively little revenue; and although the range of taxation was soon extended, the whole receipts from all sources by the government for the second year of the war, from excise, income, stamp, and all other internal taxes, were less than $42,000,000; and that, too, at a time when the expenditures were in excess $60,000,000 per month, or at the rate of over $700,000,000 per annum. and as showing how novel was this whole subject of direct and internal taxation to the people, and how completely the government officials were lacking in all experience in respect to it, the following incident may be noted. the secretary of the treasury, in his report for 1863, stated that, with a view of determining his resources, he employed a very competent person, with the aid of practical men, to estimate the probable amount of revenue to be derived from each department of internal taxation for the previous year. the estimate arrived at was $85,000,000, but the actual receipts were only $37,000,000." now, no doubt, this might have happened under a parliamentary government. but, then, many members of parliament, the entire opposition in parliament, would have been active to unravel the matter. all the principles of finance would have been worked and propounded. the light would have come from above, not from below--it would have come from parliament to the nation instead of from the nation to parliament but exactly the reverse happened in america. mr. wells goes on to say:-"the people of the loyal states were, however, more determined and in earnest in respect to this matter of taxation than were their rulers; and before long the popular discontent at the existing state of things was openly manifest. every where the opinion was expressed that taxation in all possible forms should immediately, and to the largest extent, be made effective and imperative; and congress spurred up, and right fully relying on public sentiment to sustain their action, at last took up the matter resolutely and in earnest, and devised and inaugurated a system of internal and direct taxation, which for its universality and peculiarities has probably no parallel in anything which has heretofore been recorded in civil history, or is likely to be experienced hereafter. the one necessity of the situation was revenue, and to obtain it speedily and in large amounts through taxation the only principle recognised--if it can be called a principle--was akin to that recommended to the traditionary irishman on his visit to donnybrook fair, 'wherever you see a head hit it'. wherever you find an article, a product, a trade, a profession, or a source of income, tax it! and so an edict went forth to this effect, and the people cheerfully submitted. incomes under $5,000 were taxed 5 per cent., with an exemption of $600 and house rent actually paid; these exemptions being allowed on this ground, that they represented an amount sufficient at the time to enable a small family to procure the bare necessaries of life, and thus take out from the operation of the law all those who were dependent upon each day's earnings to supply each day's needs. incomes in excess of $5,000 and not in excess of $10,000 were taxed 2 1/2 per cent. in addition; and incomes over $10,000 5 per cent. additional, without any abeyance or exemptions whatever." now this is all contrary to and worse than what would have happened under a parliamentary government. the delay to tax would not have occurred under it: the movement by the country to get taxation would never have been necessary under it. the excessive taxation accordingly imposed would not have been permitted under it. the last point i think i need not labour at length. the evils of a bad tax are quite sure to be pressed upon the ears of parliament in season and out of season; the few persons who have to pay it are thoroughly certain to make themselves heard. the sort of taxation tried in america, that of taxing everything, and seeing what every thing would yield, could not have been tried under a government delicately and quickly sensitive to public opinion. i do not apologise for dwelling at length upon these points, for the subject is one of transcendent importance. the practical choice of first-rate nations is between the presidential government and the parliamentary; no state can be first-rate which has not a government by discussion, and those are the only two existing species of that government. it is between them that a nation which has to choose its government must choose. and nothing therefore can be more important than to compare the two, and to decide upon the testimony of experience, and by facts, which of them is the better. the poplars, wimbledon: june 20, 1872. no. ii. the cabinet. "on all great subjects," says mr. mill, "much remains to be said," and of none is this more true than of the english constitution. the literature which has accumulated upon it is huge. but an observer who looks at the living reality will wonder at the contrast to the paper description. he will see in the life much which is not in the books; and he will not find in the rough practice many refinements of the literary theory. it was natural--perhaps inevitable--that such an under growth of irrelevant ideas should gather round the british constitution. language is the tradition of nations; each generation describes what it sees, but it uses words transmitted from the past. when a great entity like the british constitution has continued in connected outward sameness, but hidden inner change, for many ages, every generation inherits a series of inapt words--of maxims once true, but of which the truth is ceasing or has ceased. as a man's family go on muttering in his maturity incorrect phrases derived from a just observation of his early youth, so, in the full activity of an historical constitution, its subjects repeat phrases true in the time of their fathers, and inculcated by those fathers, but now true no longer. or, if i may say so, an ancient and ever-altering constitution is like an old man who still wears with attached fondness clothes in the fashion of his youth: what you see of him is the same; what you do not see is wholly altered. there are two descriptions of the english constitution which have exercised immense influence, but which are erroneous. first, it is laid down as a principle of the english polity, that in it the legislative, the executive, and the judicial powers are quite divided--that each is entrusted to a separate person or set of persons--that no one of these can at all interfere with the work of the other. there has been much eloquence expended in explaining how the rough genius of the english people, even in the middle ages, when it was especially rude, carried into life and practice that elaborate division of functions which philosophers had suggested on paper, but which they had hardly hoped to see except on paper. secondly, it is insisted that the peculiar excellence of the british constitution lies in a balanced union of three powers. it is said that the monarchical element, the aristocratic element, and the democratic element, have each a share in the supreme sovereignty, and that the assent of all three is necessary to the action of that sovereignty. kings, lords, and commons, by this theory, are alleged to be not only the outward form, but the inner moving essence, the vitality of the constitution. a great theory, called the theory of "checks and balances," pervades an immense part of political literature, and much of it is collected from or supported by english experience. monarchy, it is said, has some faults, some bad tendencies, aristocracy others, democracy, again, others; but england has shown that a government can be constructed in which these evil tendencies exactly check, balance, and destroy one another--in which a good whole is constructed not simply in spite of, but by means of, the counteracting defects of the constituent parts. accordingly, it is believed that the principal characteristics of the english constitution are inapplicable in countries where the materials for a monarchy or an aristocracy do not exist. that constitution is conceived to be the best imaginable use of the political elements which the great majority of states in modern europe inherited from the mediaeval period. it is believed that out of these materials nothing better can be made than the english constitution; but it is also believed that the essential parts of the english constitution cannot be made except from these materials. now these elements are the accidents of a period and a region; they belong only to one or two centuries in human history, and to a few countries. the united states could not have become monarchical, even if the constitutional convention had decreed it, even if the component states had ratified it. the mystic reverence, the religious allegiance, which are essential to a true monarchy, are imaginative sentiments that no legislature can manufacture in any people. these semi-filial feelings in government are inherited just as the true filial feelings in common life. you might as well adopt a father as make a monarchy: the special sentiment belonging to the one is as incapable of voluntary creation as the peculiar affection belonging to the other. if the practical part of the english constitution could only be made out of a curious accumulation of mediaeval materials, its interest would be half historical, and its imitability very confined. no one can approach to an understanding of the english institutions, or of others, which, being the growth of many centuries, exercise a wide sway over mixed populations, unless he divide them into two classes. in such constitutions there are two parts (not indeed separable with microscopic accuracy, for the genius of great affairs abhors nicety of division): first, those which excite and preserve the reverence of the population--the dignified parts, if i may so call them; and next, the efficient parts--those by which it, in fact, works and rules. there are two great objects which every constitution must attain to be successful, which every old and celebrated one must have wonderfully achieved: every constitution must first gain authority, and then use authority; it must first win the loyalty and confidence of mankind, and then employ that homage in the work of government. there are indeed practical men who reject the dignified parts of government. they say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless. and other reasoners, who distrust this bare philosophy, have propounded subtle arguments to prove that these dignified parts of old governments are cardinal components of the essential apparatus, great pivots of substantial utility; and so they manufactured fallacies which the plainer school have well exposed. but both schools are in error. the dignified parts of government are those which bring it force--which attract its motive power. the efficient parts only employ that power. the comely parts of a government have need, for they are those upon which its vital strength depends. they may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of all work. they raise the army, though they do not win the battle. doubtless, if all subjects of the same government only thought of what was useful to them, and if they all thought the same thing useful, and all thought that same thing could be attained in the same way, the efficient members of a constitution would suffice, and no impressive adjuncts would be needed. but the world in which we live is organised far otherwise. the most strange fact, though the most certain in nature, is the unequal development of the human race. if we look back to the early ages of mankind, such as we seem in the faint distance to see them--if we call up the image of those dismal tribes in lake villages, or on wretched beaches--scarcely equal to the commonest material needs, cutting down trees slowly and painfully with stone tools, hardly resisting the attacks of huge, fierce animals--without culture, without leisure, without poetry, almost without thought--destitute of morality, with only a sort of magic for religion; and if we compare that imagined life with the actual life of europe now, we are overwhelmed at the wide contrast--we can scarcely conceive ourselves to be of the same race as those in the far distance. there used to be a notion--not so much widely asserted as deeply implanted, rather pervadingly latent than commonly apparent in political philosophy--that in a little while, perhaps ten years or so, all human beings might, without extraordinary appliances, be brought to the same level. but now, when we see by the painful history of mankind at what point we began, by what slow toil, what favourable circumstances, what accumulated achievements, civilised man has become at all worthy in any degree so to call himself--when we realise the tedium of history and the painfulness of results--our perceptions are sharpened as to the relative steps of our long and gradual progress. we have in a great community like england crowds of people scarcely more civilised than the majority of two thousand years ago; we have others, even more numerous, such as the best people were a thousand years since. the lower orders, the middle orders, are still, when tried by what is the standard of the educated "ten thousand," narrow-minded, unintelligent, incurious. it is useless to pile up abstract words. those who doubt should go out into their kitchens. let an accomplished man try what seems to him most obvious, most certain, most palpable in intellectual matters, upon the housemaid and the footman, and he will find that what he says seems unintelligible, confused, and erroneous--that his audience think him mad and wild when he is speaking what is in his own sphere of thought the dullest platitude of cautious soberness. great communities are like great mountains--they have in them the primary, secondary, and tertiary strata of human progress; the characteristics of the lower regions resemble the life of old times rather than the present life of the higher regions. and a philosophy which does not ceaselessly remember, which does not continually obtrude, the palpable differences of the various parts, will be a theory radically false, because it has omitted a capital reality--will be a theory essentially misleading, because it will lead men to expect what does not exist, and not to anticipate that which they will find. every one knows these plain facts, but by no means every one has traced their political importance. when a state is constituted thus, it is not true that the lower classes will be wholly absorbed in the useful; on the contrary, they do not like anything so poor. no orator ever made an impression by appealing to men as to their plainest physical wants, except when he could allege that those wants were caused by some one's tyranny. but thousands have made the greatest impression by appealing to some vague dream of glory, or empire, or nationality. the ruder sort of men--that is, men at one stage of rudeness--will sacrifice all they hope for, all they have, themselves, for what is called an idea--for some attraction which seems to transcend reality, which aspires to elevate men by an interest higher, deeper, wider than that of ordinary life. but this order of men are uninterested in the plain, palpable ends of government; they do not prize them; they do not in the least comprehend how they should be attained. it is very natural, therefore, that the most useful parts of the structure of government should by no means be those which excite the most reverence. the elements which excite the most easy reverence will be the theatrical elements--those which appeal to the senses, which claim to be embodiments of the greatest human ideas, which boast in some cases of far more than human origin. that which is mystic in its claims; that which is occult in its mode of action; that which is brilliant to the eye; that which is seen vividly for a moment, and then is seen no more; that which is hidden and unhidden; that which is specious, and yet interesting, palpable in its seeming, and yet professing to be more than palpable in its results; this, howsoever its form may change, or however we may define it or describe it, is the sort of thing--the only sort--which yet comes home to the mass of men. so far from the dignified parts of a constitution being necessarily the most useful, they are likely, according to outside presumption, to be the least so; for they are likely to be adjusted to the lowest orders--those likely to care least and judge worst about what is useful. there is another reason which, in an old constitution like that of england, is hardly less important. the most intellectual of men are moved quite as much by the circumstances which they are used to as by their own will. the active voluntary part of a man is very small, and if it were not economised by a sleepy kind of habit, its results would be null. we could not do every day out of our own heads all we have to do. we should accomplish nothing, for all our energies would be frittered away in minor attempts at petty improvement. one man, too, would go off from the known track in one direction, and one in another; so that when a crisis came requiring massed combination, no two men would be near enough to act together. it is the dull traditional habit of mankind that guides most men's actions, and is the steady frame in which each new artist must set the picture that he paints. and all this traditional part of human nature is, ex vi termini, most easily impressed and acted on by that which is handed down. other things being equal, yesterday's institutions are by far the best for to-day; they are the most ready, the most influential, the most easy to get obeyed, the most likely to retain the reverence which they alone inherit, and which every other must win. the most imposing institutions of mankind are the oldest; and yet so changing is the world, so fluctuating are its needs, so apt to lose inward force, though retaining out ward strength, are its best instruments, that we must not expect the oldest institutions to be now the most efficient. we must expect what is venerable to acquire influence because of its inherent dignity; but we must not expect it to use that influence so well as new creations apt for the modern world, instinct with its spirit, and fitting closely to its life. the brief description of the characteristic merit of the english constitution is, that its dignified parts are very complicated and somewhat imposing, very old and rather venerable; while its efficient part, at least when in great and critical action, is decidedly simple and rather modern. we have made, or rather stumbled on, a constitution which--though full of every species of incidental defect, though of the worst workmanship in all out-of-the-way matters of any constitution in the world--yet has two capital merits: it contains a simple efficient part which, on occasion, and when wanted, can work more simply and easily, and better, than any instrument of government that has yet been tried; and it contains likewise historical, complex, august, theatrical parts, which it has inherited from a long past--which take the multitude--which guide by an insensible but an omnipotent influence the associations of its subjects. its essence is strong with the strength of modern simplicity; its exterior is august with the gothic grandeur of a more imposing age. its simple essence may, mutatis mutandis, be transplanted to many very various countries, but its august outside--what most men think it is--is narrowly confined to nations with an analogous history and similar political materials. the efficient secret of the english constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers. no doubt by the traditional theory, as it exists in all the books, the goodness of our constitution consists in the entire separation of the legislative and executive authorities, but in truth its merit consists in their singular approximation. the connecting link is the cabinet. by that new word we mean a committee of the legislative body selected to be the executive body. the legislature has many committees, but this is its greatest. it chooses for this, its main committee, the men in whom it has most confidence. it does not, it is true, choose them directly; but it is nearly omnipotent in choosing them indirectly. a century ago the crown had a real choice of ministers, though it had no longer a choice in policy. during the long reign of sir r. walpole he was obliged not only to manage parliament but to manage the palace. he was obliged to take care that some court intrigue did not expel him from his place. the nation then selected the english policy, but the crown chose the english ministers. they were not only in name, as now, but in fact, the queen's servants. remnants, important remnants, of this great prerogative still remain. the discriminating favour of william iv. made lord melbourne head of the whig party when he was only one of several rivals. at the death of lord palmerston it is very likely that the queen may have the opportunity of fairly choosing between two, if not three statesmen. but, as a rule, the nominal prime minister is chosen by the legislature, and the real prime minister for most purposes--the leader of the house of commons--almost without exception is so. there is nearly always some one man plainly selected by the voice of the predominant party in the predominant house of the legislature to head that party, and consequently to rule the nation. we have in england an elective first magistrate as truly as the americans have an elective first magistrate. the queen is only at the head of the dignified part of the constitution. the prime minister is at the head of the efficient part. the crown is, according to the saying, the "fountain of honour"; but the treasury is the spring of business. nevertheless, our first magistrate differs from the american. he is not elected directly by the people; he is elected by the representatives of the people. he is an example of "double election". the legislature chosen, in name, to make laws, in fact finds its principal business in making and in keeping an executive. the leading minister so selected has to choose his associates, but he only chooses among a charmed circle. the position of most men in parliament forbids their being invited to the cabinet; the position of a few men ensures their being invited. between the compulsory list whom he must take, and the impossible list whom he cannot take, a prime minister's independent choice in the formation of a cabinet is not very large; it extends rather to the division of the cabinet offices than to the choice of cabinet ministers. parliament and the nation have pretty well settled who shall have the first places; but they have not discriminated with the same accuracy which man shall have which place. the highest patronage of a prime minister is, of course, a considerable power, though it is exercised under close and imperative restrictions--though it is far less than it seems to be when stated in theory, or looked at from a distance. the cabinet, in a word, is a board of control chosen by the legislature, out of persons whom it trusts and knows, to rule the nation. the particular mode in which the english ministers are selected; the fiction that they are, in any political sense, the queen's servants; the rule which limits the choice of the cabinet to the members of the legislature--are accidents unessential to its definition--historical incidents separable from its nature. its characteristic is that it should be chosen by the legislature out of persons agreeable to and trusted by the legislature. naturally these are principally its own members--but they need not be exclusively so. a cabinet which included persons not members of the legislative assembly might still perform all useful duties. indeed the peers, who constitute a large element in modern cabinets, are members, now-a-days, only of a subordinate assembly. the house of lords still exercises several useful functions; but the ruling influence--the deciding faculty--has passed to what, using the language of old times, we still call the lower house--to an assembly which, though inferior as a dignified institution, is superior as an efficient institution. a principal advantage of the house of lords in the present age indeed consists in its thus acting as a reservoir of cabinet ministers. unless the composition of the house of commons were improved, or unless the rules requiring cabinet ministers to be members of the legislature were relaxed, it would undoubtedly be difficult to find, without the lords, a sufficient supply of chief ministers. but the detail of the composition of a cabinet, and the precise method of its choice, are not to the purpose now. the first and cardinal consideration is the definition of a cabinet. we must not bewilder ourselves with the inseparable accidents until we know the necessary essence. a cabinet is a combining committee--a hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part of the state. in its origin it belongs to the one, in its functions it belongs to the other. the most curious point about the cabinet is that so very little is known about it. the meetings are not only secret in theory, but secret in reality. by the present practice, no official minute in all ordinary cases is kept of them. even a private note is discouraged and disliked. the house of commons, even in its most inquisitive and turbulent moments, would scarcely permit a note of a cabinet meeting to be read. no minister who respected the fundamental usages of political practice would attempt to read such a note. the committee which unites the law-making power to the law-executing power--which, by virtue of that combination, is, while it lasts and holds together, the most powerful body in the state--is a committee wholly secret. no description of it, at once graphic and authentic, has ever been given. it is said to be sometimes like a rather disorderly board of directors, where many speak and few listen--though no one knows.[1] but a cabinet, though it is a committee of the legislative assembly, is a committee with a power which no assembly would--unless for historical accidents, and after happy experience--have been persuaded to entrust to any committee. it is a committee which can dissolve the assembly which appointed it; it is a committee with a suspensive veto--a committee with a power of appeal. though appointed by one parliament, it can appeal if it chooses to the next. theoretically, indeed, the power to dissolve parliament is entrusted to the sovereign only; and there are vestiges of doubt whether in all cases a sovereign is bound to dissolve parliament when the cabinet asks him to do so. but neglecting such small and dubious exceptions, the cabinet which was chosen by one house of commons has an appeal to the next house of commons. the chief committee of the legislature has the power of dissolving the predominant part of that legislature--that which at a crisis is the supreme legislature. the english system, therefore, is not an absorption of the executive power by the legislative power; it is a fusion of the two. either the cabinet legislates and acts, or else it can dissolve. it is a creature, but it has the power of destroying its creators. it is an executive which can annihilate the legislature, as well as an executive which is the nominee of the legislature. it was made, but it can unmake; it was derivative in its origin, but it is destructive in its action. this fusion of the legislative and executive functions may, to those who have not much considered it, seem but a dry and small matter to be the latent essence and effectual secret of the english constitution; but we can only judge of its real importance by looking at a few of its principal effects, and contrasting it very shortly with its great competitor, which seems likely, unless care be taken, to outstrip it in the progress of the world. that competitor is the presidential system. the characteristic of it is that the president is elected from the people by one process, and the house of representatives by another. the independence of the legislative and executive powers is the specific quality of presidential government, just as their fusion and combination is the precise principle of cabinet government. [1] it is said that at the end of the cabinet which agreed to propose a fixed duty on corn, lord melbourne put his back to the door and said, "now is it to lower the price of corn or isn't it? it is not much matter which we say, but mind, we must all say the same." this is the most graphic story of a cabinet i ever heard, but i cannot vouch for its truth. lord melbourne's is a character about which men make stories. first, compare the two in quiet times. the essence of a civilised age is, that administration requires the continued aid of legislation. one principal and necessary kind of legislation is taxation. the expense of civilised government is continually varying. it must vary if the government does its duty. the miscellaneous estimates of the english government contain an inevitable medley of changing items. education, prison discipline, art, science, civil contingencies of a hundred kinds, require more money one year and less another. the expense of defence--the naval and military estimates--vary still more as the danger of attack seems more or less imminent, as the means of retarding such danger become more or less costly. if the persons who have to do the work are not the same as those who have to make the laws, there will be a controversy between the two sets of persons. the tax-imposers are sure to quarrel with the tax-requirers. the executive is crippled by not getting the laws it needs, and the legislature is spoiled by having to act without responsibility: the executive becomes unfit for its name, since it cannot execute what it decides on; the legislature is demoralised by liberty, by taking decisions of which others (and not itself) will suffer the effects. in america so much has this difficulty been felt that a semi-connection has grown up between the legislature and the executive. when the secretary of the treasury of the federal government wants a tax he consults upon it with the chairman of the financial committee of congress. he cannot go down to congress himself and propose what he wants; he can only write a letter and send it. but he tries to get a chairman of the finance committee who likes his tax;--through that chairman he tries to persuade the committee to recommend such tax; by that committee he tries to induce the house to adopt that tax. but such a chain of communications is liable to continual interruptions; it may suffice for a single tax on a fortunate occasion, but will scarcely pass a complicated budget--we do not say in a war or a rebellion--we are now comparing the cabinet system and the presidential system in quiet times--but in times of financial difficulty. two clever men never exactly agreed about a budget. we have by present practice an indian chancellor of the exchequer talking english finance at calcutta, and an english one talking indian finance in england. but the figures are never the same, and the views of policy are rarely the same. one most angry controversy has amused the world, and probably others scarcely less interesting are hidden in the copious stores of our anglo-indian correspondence. but relations something like these must subsist between the head of a finance committee in the legislature, and a finance minister in the executive.[2] they are sure to quarrel, and the result is sure to satisfy neither. and when the taxes do not yield as they were expected to yield, who is responsible? very likely the secretary of the treasury could not persuade the chairman--very likely the chairman could not persuade his committee--very likely the committee could not persuade the assembly. whom, then, can you punish--whom can you abolish--when your taxes run short? there is nobody save the legislature, a vast miscellaneous body difficult to punish, and the very persons to inflict the punishment. nor is the financial part of administration the only one which requires in a civilised age the constant support and accompaniment of facilitating legislation. all administration does so. in england, on a vital occasion, the cabinet can compel legislation by the threat of resignation, and the threat of dissolution; but neither of these can be used in a presidential state. there the legislature cannot be dissolved by the executive government; and it does not heed a resignation, for it has not to find the successor. accordingly, when a difference of opinion arises, the legislature is forced to fight the executive, and the executive is forced to fight the legislative; and so very likely they contend to the conclusion of their respective terms.[3] there is, indeed, one condition of things in which this description, though still approximately true, is, nevertheless, not exactly true; and that is, when there is nothing to fight about. before the rebellion in america, owing to the vast distance of other states, and the favourable economic condition of the country, there were very few considerable objects of contention; but if that government had been tried by english legislation of the last thirty years, the discordant action of the two powers, whose constant cooperation is essential to the best government, would have shown itself much more distinctly. nor is this the worst. cabinet government educates the nation; the presidential does not educate it, and may corrupt it. it has been said that england invented the phrase, "her majesty's opposition"; that it was the first government which made a criticism of administration as much a part of the polity as administration itself. this critical opposition is the consequence of cabinet government. the great scene of debate, the great engine of popular instruction and political controversy, is the legislative assembly. a speech there by an eminent statesman, a party movement by a great political combination, are the best means yet known for arousing, enlivening, and teaching a people. the cabinet system ensures such debates, for it makes them the means by which statesmen advertise themselves for future and confirm themselves in present governments. it brings forward men eager to speak, and gives them occasions to speak. the deciding catastrophes of cabinet governments are critical divisions preceded by fine discussions. everything which is worth saying, everything which ought to be said, most certainly will be said. conscientious men think they ought to persuade others; selfish men think they would like to obtrude themselves. the nation is forced to hear two sides--all the sides, perhaps, of that which most concerns it. and it likes to hear--it is eager to know. human nature despises long arguments which come to nothing--heavy speeches which precede no motion--abstract disquisitions which leave visible things where they were. but all men heed great results, and a change of government is a great result. it has a hundred ramifications; it runs through society; it gives hope to many, and it takes away hope from many. it is one of those marked events which, by its magnitude and its melodrama, impress men even too much. and debates which have this catastrophe at the end of them--or may so have it--are sure to be listened to, and sure to sink deep into the national mind. travellers even in the northern states of america, the greatest and best of presidential countries, have noticed that the nation was "not specially addicted to politics"; that they have not a public opinion finished and chastened as that of the english has been finished and chastened. a great many hasty writers have charged this defect on the "yankee race," on the anglo-american character; but english people, if they had no motive to attend to politics, certainly would not attend to politics. at present there is business in their attention. they assist at the determining crisis; they arrest or help it. whether the government will go out or remain is determined by the debate, and by the division in parliament. and the opinion out of doors, the secret pervading disposition of society, has a great influence on that division. the nation feels that its judgment is important, and it strives to judge. it succeeds in deciding because the debates and the discussions give it the facts and the arguments. but under a presidential government, a nation has, except at the electing moment, no influence; it has not the ballot-box before it; its virtue is gone, and it must wait till its instant of despotism again returns. it is not incited to form an opinion like a nation under a cabinet government; nor is it instructed like such a nation. there are doubtless debates in the legislature, but they are prologues without a play. there is nothing of a catastrophe about them; you can not turn out the government. the prize of power is not in the gift of the legislature, and no one cares for the legislature. the executive, the great centre of power and place, sticks irremovable; you cannot change it in any event. the teaching apparatus which has educated our public mind, which prepares our resolutions, which shapes our opinions, does not exist. no presidential country needs to form daily delicate opinions, or is helped in forming them. it might be thought that the discussions in the press would supply the deficiencies in the constitution; that by a reading people especially, the conduct of their government would be as carefully watched, that their opinions about it would be as consistent, as accurate, as well considered, under a presidential as under a cabinet polity. but the same difficulty oppresses the press which oppresses the legislature. it can do nothing. it cannot change the administration; the executive was elected for such and such years, and for such and such years it must last. people wonder that so literary a people as the americans--a people who read more than any people who ever lived, who read so many newspapers--should have such bad newspapers. the papers are not so good as the english, because they have not the same motive to be good as the english papers. at a political "crisis," as we say--that is, when the fate of an administration is unfixed, when it depends on a few votes yet unsettled, upon a wavering and veering opinion--effective articles in great journals become of essential moment. the times has made many ministries. when, as of late, there has been a long continuance of divided parliaments, of governments which were without "brute voting power," and which depended on intellectual strength, the support of the most influential organ of english opinion has been of critical moment. if a washington newspaper could have turned out mr. lincoln, there would have been good writing and fine argument in the washington newspapers. but the washington newspapers can no more remove a president during his term of place than the times can remove a lord mayor during his year of office. nobody cares for a debate in congress which "comes to nothing," and no one reads long articles which have no influence on events. the americans glance at the heads of news, and through the paper. they do not enter upon a discussion. they do not think of entering upon a discussion which would be useless. [2] it is worth observing that even during the short existence of the confederate government these evils distinctly showed themselves. almost the last incident at the richmond congress was an angry financial correspondence with jefferson davis. [3] i leave this passage to stand as it was written, just after the assassination of mr. lincoln, and when every one said mr. johnson would be very hostile to the south. after saying that the division of the legislature and the executive in presidential governments weakens the legislative power, it may seem a contradiction to say that it also weakens the executive power. but it is not a contradiction. the division weakens the whole aggregate force of government--the entire imperial power; and therefore it weakens both its halves. the executive is weakened in a very plain way. in england a strong cabinet can obtain the concurrence of the legislature in all acts which facilitate its administration; it is itself, so to say, the legislature. but a president may be hampered by the parliament, and is likely to be hampered. the natural tendency of the members of every legislature is to make themselves conspicuous. they wish to gratify an ambition laudable or blamable; they wish to promote the measures they think best for the public welfare; they wish to make their will felt in great affairs. all these mixed motives urge them to oppose the executive. they are embodying the purposes of others if they aid; they are advancing their own opinions if they defeat: they are first if they vanquish; they are auxiliaries if they support. the weakness of the american executive used to be the great theme of all critics before the confederate rebellion. congress and committees of congress of course impeded the executive when there was no coercive public sentiment to check and rule them. but the presidential system not only gives the executive power an antagonist in the legislative power, and so makes it weaker; it also enfeebles it by impairing its intrinsic quality. a cabinet is elected by a legislature; and when that legislature is composed of fit persons, that mode of electing the executive is the very best. it is a case of secondary election, under the only conditions in which secondary election is preferable to primary. generally speaking, in an electioneering country (i mean in a country full of political life, and used to the manipulation of popular institutions), the election of candidates to elect candidates is a farce. the electoral college of america is so. it was intended that the deputies when assembled should exercise a real discretion, and by independent choice select the president. but the primary electors take too much interest. they only elect a deputy to vote for mr. lincoln or mr. breckenridge, and the deputy only takes a ticket, and drops that ticket in an urn. he never chooses or thinks of choosing. he is but a messenger--a transmitter; the real decision is in those who choose him--who chose him because they knew what he would do. it is true that the british house of commons is subject to the same influences. members are mostly, perhaps, elected because they will vote for a particular ministry, rather than for purely legislative reasons. but--and here is the capital distinction--the functions of the house of commons are important and continuous. it does not, like the electoral college in the united states, separate when it has elected its ruler; it watches, legislates, seats and unseats ministries, from day to day. accordingly it is a real electoral body. the parliament of 1857, which, more than any other parliament of late years, was a parliament elected to support a particular premier--which was chosen, as americans might say, upon the "palmerston ticket"--before it had been in existence two years, dethroned lord palmerston. though selected in the interest of a particular ministry, it in fact destroyed that ministry. a good parliament, too, is a capital choosing body. if it is fit to make laws for a country, its majority ought to represent the general average intelligence of that country; its various members ought to represent the various special interests, special opinions, special prejudices, to be found in that community. there ought to be an advocate for every particular sect, and a vast neutral body of no sect--homogeneous and judicial, like the nation itself. such a body, when possible, is the best selector of executives that can be imagined. it is full of political activity; it is close to political life; it feels the responsibility of affairs which are brought as it were to its threshold; it has as much intelligence as the society in question chances to contain. it is, what washington and hamilton strove to create, an electoral college of the picked men of the nation. the best mode of appreciating its advantages is to look at the alternative. the competing constituency is the nation itself, and this is, according to theory and experience, in all but the rarest cases, a bad constituency. mr. lincoln, at his second election, being elected when all the federal states had set their united hearts on one single object, was voluntarily reelected by an actually choosing nation. he embodied the object in which every one was absorbed. but this is almost the only presidential election of which so much can be said. in almost all cases the president is chosen by a machinery of caucuses and combinations too complicated to be perfectly known, and too familiar to require description. he is not the choice of the nation, he is the choice of the wire-pullers. a very large constituency in quiet times is the necessary, almost the legitimate, subject of electioneering management: a man cannot know that he does not throw his vote away except he votes as part of some great organisation; and if he votes as a part, he abdicates his electoral function in favour of the managers of that association. the nation, even if it chose for itself, would, in some degree, be an unskilled body; but when it does not choose for itself, but only as latent agitators wish, it is like a large, lazy man, with a small vicious mind,--it moves slowly and heavily, but it moves at the bidding of a bad intention; it "means little, but it means that little ill." and, as the nation is less able to choose than a parliament, so it has worse people to choose out of. the american legislators of the last century have been much blamed for not permitting the ministers of the president to be members of the assembly; but, with reference to the specific end which they had in view, they saw clearly and decided wisely. they wished to keep "the legislative branch absolutely distinct from the executive branch"; they believed such a separation to be essential to a good constitution; they believed such a separation to exist in the english, which the wisest of them thought the best constitution. and, to the effectual maintenance of such a separation, the exclusion of the president's ministers from the legislature is essential. if they are not excluded they become the executive, they eclipse the president himself. a legislative chamber is greedy and covetous; it acquires as much, it concedes as little as possible. the passions of its members are its rulers; the law-making faculty, the most comprehensive of the imperial faculties, is its instrument; it will take the administration if it can take it. tried by their own aims, the founders of the united states were wise in excluding the ministers from congress. but though this exclusion is essential to the presidential system of government, it is not for that reason a small evil. it causes the degradation of public life. unless a member of the legislature be sure of something more than speech, unless he is incited by the hope of action, and chastened by the chance of responsibility, a first-rate man will not care to take the place, and will not do much if he does take it. to belong to a debating society adhering to an executive (and this is no inapt description of a congress under a presidential constitution) is not an object to stir a noble ambition, and is a position to encourage idleness. the members of a parliament excluded from office can never be comparable, much less equal, to those of a parliament not excluded from office. the presidential government, by its nature, divides political life into two halves, an executive half and a legislative half; and, by so dividing it, makes neither half worth a man's having--worth his making it a continuous career--worthy to absorb, as cabinet government absorbs, his whole soul. the statesmen from whom a nation chooses under a presidential system are much inferior to those from whom it chooses under a cabinet system, while the selecting apparatus is also far less discerning. all these differences are more important at critical periods, because government itself is more important. a formed public opinion, a respectable, able, and disciplined legislature, a well-chosen executive, a parliament and an administration not thwarting each other, but co-operating with each other, are of greater consequence when great affairs are in progress than when small affairs are in progress-when there is much to do than when there is little to do. but in addition to this, a parliamentary or cabinet constitution possesses an additional and special advantage in very dangerous times. it has what we may call a reserve of power fit for and needed by extreme exigencies. the principle of popular government is that the supreme power, the determining efficacy in matters political, resides in the people--not necessarily or commonly in the whole people, in the numerical majority, but in a chosen people, a picked and selected people. it is so in england; it is so in all free countries. under a cabinet constitution at a sudden emergency this people can choose a ruler for the occasion. it is quite possible and even likely that he would not be ruler before the occasion. the great qualities, the imperious will, the rapid energy, the eager nature fit for a great crisis are not required--are impediments--in common times; a lord liverpool is better in everyday politics than a chatham--a louis philippe far better than a napoleon. by the structure of the world we often want, at the sudden occurrence of a grave tempest, to change the helmsman--to replace the pilot of the calm by the pilot of the storm. in england we have had so few catastrophes since our constitution attained maturity, that we hardly appreciate this latent excellence. we have not needed a cavour to rule a revolution--a representative man above all men fit for a great occasion, and by a natural legal mode brought in to rule. but even in england, at what was the nearest to a great sudden crisis which we have had of late years--at the crimean difficulty--we used this inherent power. we abolished the aberdeen cabinet, the ablest we have had, perhaps, since the reform act--a cabinet not only adapted, but eminently adapted, for every sort of difficulty save the one it had to meet--which abounded in pacific discretion, and was wanting only in the "daemonic element"; we chose a statesman, who had the sort of merit then wanted, who, when he feels the steady power of england behind him, will advance without reluctance, and will strike without restraint. as was said at the time, "we turned out the quaker, and put in the pugilist". but under a presidential government you can do nothing of the kind. the american government calls itself a government of the supreme people; but at a quick crisis, the time when a sovereign power is most needed, you cannot find the supreme people. you have got a congress elected for one fixed period, going out perhaps by fixed instalments, which cannot be accelerated or retarded--you have a president chosen for a fixed period, and immovable during that period: all the arrangements are for stated times. there is no elastic element, everything is rigid, specified, dated. come what may, you can quicken nothing, and can retard nothing. you have bespoken your government in advance, and whether it suits you or not, whether it works well or works ill, whether it is what you want or not, by law you must keep it. in a country of complex foreign relations it would mostly happen that the first and most critical year of every war would be managed by a peace premier, and the first and most critical years of peace by a war premier. in each case the period of transition would be irrevocably governed by a man selected not for what he was to introduce, but what he was to change--for the policy he was to abandon, not for the policy he was to administer. the whole history of the american civil war--a history which has thrown an intense light on the working of a presidential government at the time when government is most important--is but a vast continuous commentary on these reflections. it would, indeed, be absurd to press against presidential government as such the singular defect by which vice-president johnson has become president--by which a man elected to a sinecure is fixed in what is for the moment the most important administrative part in the political world. this defect, though most characteristic of the expectations[4] of the framers of the constitution and of its working, is but an accident of this particular case of presidential government, and no necessary ingredient in that government itself. but the first election of mr. lincoln is liable to no such objection. it was a characteristic instance of the natural working of such a government upon a great occasion. and what was that working? it may be summed up--it was government by an unknown quantity. hardly any one in america had any living idea what mr. lincoln was like, or any definite notion what he would do. the leading statesmen under the system of cabinet government are not only household words, but household ideas. a conception, not, perhaps, in all respects a true but a most vivid conception of what mr. gladstone is like, or what lord palmerston is like, runs through society. we have simply no notion what it would be to be left with the visible sovereignty in the hands of an unknown man. the notion of employing a man of unknown smallness at a crisis of unknown greatness is to our minds simply ludicrous. mr. lincoln, it is true, happened to be a man, if not of eminent ability, yet of eminent justness. there was an inner depth of puritan nature which came out under suffering, and was very attractive. but success in a lottery is no argument for lotteries. what were the chances against a person of lincoln's antecedents, elected as he was, proving to be what he was? such an incident is, however, natural to a presidential government. the president is elected by processes which forbid the election of known men, except at peculiar conjunctures, and in moments when public opinion is excited and despotic; and consequently if a crisis comes upon us soon after he is elected, inevitably we have government by an unknown quantity--the superintendence of that crisis by what our great satirist would have called "statesman x". even in quiet times, government by a president, is, for the several various reasons which have been stated, inferior to government by a cabinet; but the difficulty of quiet times is nothing as compared with the difficulty of unquiet times. the comparative deficiencies of the regular, common operation of a presidential government are far less than the comparative deficiencies in time of sudden trouble--the want of elasticity, the impossibility of a dictatorship, the total absence of a revolutionary reserve. this contrast explains why the characteristic quality of cabinet governments--the fusion of the executive power with the legislative power--is of such cardinal importance. i shall proceed to show under what form and with what adjuncts it exists in england. [4] the framers of the constitution expected that the vice-president would be elected by the electoral college as the second wisest man in the country. the vice-presidentship being a sinecure, a second-rate man agreeable to the wire-pullers is always smuggled in. the chance of succession to the presidentship is too distant to be thought of. no. iii. the monarchy. i. the use of the queen, in a dignified capacity, is incalculable. without her in england, the present english government would fail and pass away. most people when they read that the queen walked on the slopes at windsor--that the prince of wales went to the derby--have imagined that too much thought and prominence were given to little things. but they have been in error; and it is nice to trace how the actions of a retired widow and an unemployed youth become of such importance. the best reason why monarchy is a strong government is, that it is an intelligible government. the mass of mankind understand it, and they hardly anywhere in the world understand any other. it is often said that men are ruled by their imaginations; but it would be truer to say they are governed by the weakness of their imaginations. the nature of a constitution, the action of an assembly, the play of parties, the unseen formation of a guiding opinion, are complex facts, difficult to know and easy to mistake. but the action of a single will, the fiat of a single mind, are easy ideas: anybody can make them out, and no one can ever forget them. when you put before the mass of mankind the question, "will you be governed by a king, or will you be governed by a constitution?" the inquiry comes out thus--"will you be governed in a way you understand, or will you be governed in a way you do not understand?" the issue was put to the french people; they were asked, "will you be governed by louis napoleon, or will you be governed by an assembly?" the french people said, "we will be governed by the one man we can imagine, and not by the many people we cannot imagine". the best mode of comprehending the nature of the two governments, is to look at a country in which the two have within a comparatively short space of years succeeded each other. "the political condition," says mr. grote, "which grecian legend everywhere presents to us, is in its principal features strikingly different from that which had become universally prevalent among the greeks in the time of the peloponnesian war. historical oligarchy, as well as democracy, agreed in requiring a certain established system of government, comprising the three elements of specialised functions, temporary functionaries, and ultimate responsibility (under some forms or other) to the mass of qualified citizens--either a senate or an ecclesia, or both. there were, of course, many and capital distinctions between one government and another, in respect to the qualification of the citizen, the attributes and efficiency of the general assembly, the admissibility to power, etc.; and men might often be dissatisfied with the way in which these questions were determined in their own city. but in the mind of every man, some determining rule or system--something like what in modern times is called a constitution--was indispensable to any government entitled to be called legitimate, or capable of creating in the mind of a greek a feeling of moral obligation to obey it. the functionaries who exercise authority under it might be more or less competent or popular; but his personal feelings towards them were commonly lost in his attachment or aversion to the general system. if any energetic man could by audacity or craft break down the constitution, and render himself permanent ruler according to his own will and pleasure, even though he might govern well, he could never inspire the people with any sentiment of duty towards him: his sceptre was illegitimate from the beginning, and even the taking of his life, far from being interdicted by that moral feeling which condemned the shedding of blood in other cases, was considered meritorious: he could not even be mentioned in the language except by a name (_tyrannos_, despot) which branded him as an object of mingled fear and dislike. "if we carry our eyes back from historical to legendary greece, we find a picture the reverse of what has been here sketched. we discern a government in which there is little or no scheme or system, still less any idea of responsibility to the governed, but in which the mainspring of obedience on the part of the people consists in their personal feeling and reverence towards the chief. we remark, first and foremost, the king; next, a limited number of subordinate kings or chiefs; afterwards, the mass of armed freemen, husbandmen, artisans, freebooters, &c.; lowest of all, the free labourers for hire and the bought slaves. the king is not distinguished by any broad, or impassable boundary from the other chiefs, to each of whom the title basileus is applicable as well as to himself: his supremacy has been inherited from his ancestors, and passes by inheritance, as a general rule, to his eldest son, having been conferred upon the family as a privilege by the favour of zeus. in war, he is the leader, foremost in personal prowess, and directing all military movements; in peace, he is the general protector of the injured and oppressed; he offers up moreover those public prayers and sacrifices which are intended to obtain for the whole people the favour of the gods. an ample domain is assigned to him as an appurtenance of his lofty position, and the produce of his fields and his cattle is consecrated in part to an abundant, though rude hospitality. moreover he receives frequent presents, to avert his enmity, to conciliate his favour, or to buy off his exactions; and when plunder is taken from the enemy, a large previous share, comprising probably the most alluring female captive, is reserved for him apart from the general distribution. "such is the position of the king in the heroic times of greece--the only person (if we except the herald, and priests, each both special and subordinate) who is then presented to us as clothed with any individual authority--the person by whom all the executive functions, then few in number, which the society requires, are either performed or directed. his personal ascendancy--derived from divine countenance bestowed both upon himself individually and upon his race, and probably from accredited divine descent--is the salient feature in the picture: the people hearken to his voice, embrace his propositions, and obey his orders: not merely resistance, but even criticism upon his acts, is generally exhibited in an odious point of view, and is indeed never heard of except from some one or more of the subordinate princes." the characteristic of the english monarchy is that it retains the feelings by which the heroic kings governed their rude age, and has added the feelings by which the constitutions of later greece ruled in more refined ages. we are a more mixed people than the athenians, or probably than any political greeks. we have progressed more unequally. the slaves in ancient times were a separate order; not ruled by the same laws, or thoughts, as other men. it was not necessary to think of them in making a constitution: it was not necessary to improve them in order to make a constitution possible. the greek legislator had not to combine in his polity men like the labourers of somersetshire, and men like mr. grote. he had not to deal with a community in which primitive barbarism lay as a recognised basis to acquired civilisation. we have. we have no slaves to keep down by special terrors and independent legislation. but we have whole classes unable to comprehend the idea of a constitution--unable to feel the least attachment to impersonal laws. most do indeed vaguely know that there are some other institutions besides the queen, and some rules by which she governs. but a vast number like their minds to dwell more upon her than upon anything else, and therefore she is inestimable. a republic has only difficult ideas in government; a constitutional monarchy has an easy idea too; it has a comprehensible element for the vacant many, as well as complex laws and notions for the inquiring few. a family on the throne is an interesting idea also. it brings down the pride of sovereignty to the level of petty life. no feeling could seem more childish than the enthusiasm of the english at the marriage of the prince of wales. they treated as a great political event, what, looked at as a matter of pure business, was very small indeed. but no feeling could be more like common human nature as it is, and as it is likely to be. the women--one half the human race at least--care fifty times more for a marriage than a ministry. all but a few cynics like to see a pretty novel touching for a moment the dry scenes of the grave world. a princely marriage is the brilliant edition of a universal fact, and, as such, it rivets mankind. we smile at the court circular; but remember how many people read the court circular! its use is not in what it says, but in those to whom it speaks. they say that the americans were more pleased at the queen's letter to mrs. lincoln, than at any act of the english government. it was a spontaneous act of intelligible feeling in the midst of confused and tiresome business. just so a royal family sweetens politics by the seasonable addition of nice and pretty events. it introduces irrelevant facts into the business of government, but they are facts which speak to "men's bosoms" and employ their thoughts. to state the matter shortly, royalty is a government in which the attention of the nation is concentrated on one person doing interesting actions. a republic is a government in which that attention is divided between many, who are all doing uninteresting actions. accordingly, so long as the human heart is strong and the human reason weak, royalty will be strong because it appeals to diffused feeling, and republics weak because they appeal to the understanding. secondly. the english monarchy strengthens our government with the strength of religion. it is not easy to say why it should be so. every instructed theologian would say that it was the duty of a person born under a republic as much to obey that republic as it is the duty of one born under a monarchy to obey the monarch. but the mass of the english people do not think so; they agree with the oath of allegiance; they say it is their duty to obey the "queen," and they have but hazy notions as to obeying laws without a queen. in former times, when our constitution was incomplete, this notion of local holiness in one part was mischievous. all parts were struggling, and it was necessary each should have its full growth. but superstition said one should grow where it would, and no other part should grow without its leave. the whole cavalier party said it was their duty to obey the king, whatever the king did. there was to be "passive obedience" to him, and there was no religious obedience due to any one else. he was the "lord's anointed," and no one else had been anointed at all. the parliament, the laws, the press were human institutions; but the monarchy was a divine institution. an undue advantage was given to a part of the constitution, and therefore the progress of the whole was stayed. after the revolution this mischievous sentiment was much weaker. the change of the line of sovereigns was at first conclusive, if there was a mystic right in any one, that right was plainly in james ii.; if it was an english duty to obey any one whatever he did, he was the person to be so obeyed; if there was an inherent inherited claim in any king, it was in the stuart king to whom the crown had come by descent, and not in the revolution king to whom it had come by vote of parliament. all through the reign of william iii. there was (in common speech) one king whom man had made, and another king whom god had made. the king who ruled had no consecrated loyalty to build upon; although he ruled in fact, according to sacred theory there was a king in france who ought to rule. but it was very hard for the english people, with their plain sense and slow imagination, to keep up a strong sentiment of veneration for a foreign adventurer. he lived under the protection of a french king; what he did was commonly stupid, and what he left undone was very often wise. as soon as queen anne began to reign there was a change of feeling; the old sacred sentiment began to cohere about her. there were indeed difficulties which would have baffled most people; but an englishman whose heart is in a matter is not easily baffled. queen anne had a brother living and a father living, and by every rule of descent, their right was better than hers. but many people evaded both claims. they said james ii. had "run away," and so abdicated, though he only ran away because he was in duresse and was frightened, and though he claimed the allegiance of his subjects day by day. the pretender, it was said, was not legitimate, though the birth was proved by evidence which any court of justice would have accepted. the english people were "out of" a sacred monarch, and so they tried very hard to make a new one. events, however, were too strong for them. they were ready and eager to take queen anne as the stock of a new dynasty; they were ready to ignore the claims of her father and the claims of her brother, but they could not ignore the fact that at the critical period she had no children. she had once had thirteen, but they all died in her lifetime, and it was necessary either to revert to the stuarts or to make a new king by act of parliament. according to the act of settlement passed by the whigs, the crown was settled on the descendants of the "princess sophia" of hanover, a younger daughter of a daughter of james i. there were before her james ii., his son, the descendants of a daughter of charles i., and elder children of her own mother. but the whigs passed these over because they were catholics, and selected the princess sophia, who, if she was anything, was a protestant. certainly this selection was statesmanlike, but it could not be very popular. it was quite impossible to say that it was the duty of the english people to obey the house of hanover upon any principles which do not concede the right of the people to choose their rulers, and which do not degrade monarchy from its solitary pinnacle of majestic reverence, and make it one only among many expedient institutions. if a king is a useful public functionary who may be changed, and in whose place you may make another, you cannot regard him with mystic awe and wonder; and if you are bound to worship him, of course you cannot change him. accordingly, during the whole reigns of george i. and george ii. the sentiment of religious loyalty altogether ceased to support the crown. the prerogative of the king had no strong party to support it; the tories, who naturally would support it, disliked the actual king; and the whigs, according to their creed, disliked the king's office. until the accession of george iii. the most vigorous opponents of the crown were the country gentlemen, its natural friends, and the representatives of quiet rural districts, where loyalty is mostly to be found, if anywhere. but after the accession of george iii. the common feeling came back to the same point as in queen anne's time. the english were ready to take the new young prince as the beginning of a sacred line of sovereigns, just as they had been willing to take an old lady, who was the second cousin of his great-great-grandmother. so it is now. if you ask the immense majority of the queen's subjects by what right she rules, they would never tell you that she rules by parliamentary right, by virtue of 6 anne, c. 7. they will say she rules by "god's grace"; they believe that they have a mystic obligation to obey her. when her family came to the crown it was a sort of treason to maintain the inalienable right of lineal sovereignty, for it was equivalent to saying that the claim of another family was better than hers: but now, in the strange course of human events, that very sentiment has become her surest and best support. but it would be a great mistake to believe that at the accession of george iii. the instinctive sentiment of hereditary loyalty at once became as useful as now. it began to be powerful, but it hardly began to be useful. there was so much harm done by it as well as so much good, that it is quite capable of being argued whether on the whole it was beneficial or hurtful. throughout the greater part of his life george iii. was a kind of "consecrated obstruction". whatever he did had a sanctity different from what any one else did, and it perversely happened that he was commonly wrong. he had as good intentions as any one need have, and he attended to the business of his country, as a clerk with his bread to get attends to the business of his office. but his mind was small, his education limited, and he lived in a changing time. accordingly, he was always resisting what ought to be, and prolonging what ought not to be. he was the sinister but sacred assailant of half his ministries; and when the french revolution excited the horror of the world, and proved democracy to be "impious," the piety of england concentrated upon him, and gave him tenfold strength. the monarchy by its religious sanction now confirms all our political order; in george iii.'s time it confirmed little except itself. it gives now a vast strength to the entire constitution, by enlisting on its behalf the credulous obedience of enormous masses; then it lived aloof, absorbed all the holiness into itself, and turned over all the rest of the polity to the coarse justification of bare expediency. a principal reason why the monarchy so well consecrates our whole state is to be sought in the peculiarity many americans and many utilitarians smile at. they laugh at this "extra," as the yankee called it, at the solitary transcendent element. they quote napoleon's saying, "that he did not wish to be fatted in idleness," when he refused to be grand elector in sieyes' constitution, which was an office copied, and m. thiers says, well copied, from constitutional monarchy. but such objections are wholly wrong. no doubt it was absurd enough in the abbe sieyes to propose that a new institution, inheriting no reverence, and made holy by no religion, should be created to fill the sort of post occupied by a constitutional king in nations of monarchical history. such an institution, far from being so august as to spread reverence around it, is too novel and artificial to get reverence for itself; if, too, the absurdity could anyhow be augmented, it was so by offering an office of inactive uselessness and pretended sanctity to napoleon, the most active man in france, with the greatest genius for business, only not sacred, and exclusively fit for action. but the blunder of sieyes brings the excellence of real monarchy to the best light. when a monarch can bless, it is best that he should not be touched. it should be evident that he does no wrong. he should not be brought too closely to real measurement. he should be aloof and solitary. as the functions of english royalty are for the most part latent, it fulfils this condition. it seems to order, but it never seems to struggle. it is commonly hidden like a mystery, and sometimes paraded like a pageant, but in neither case is it contentious. the nation is divided into parties, but the crown is of no party. its apparent separation from business is that which removes it both from enmities and from desecration, which preserves its mystery, which enables it to combine the affection of conflicting parties--to be a visible symbol of unity to those still so imperfectly educated as to need a symbol. thirdly. the queen is the head of our society. if she did not exist the prime minister would be the first person in the country. he and his wife would have to receive foreign ministers, and occasionally foreign princes, to give the first parties in the country; he and she would be at the head of the pageant of life; they would represent england in the eyes of foreign nations; they would represent the government of england in the eyes of the english. it is very easy to imagine a world in which this change would not be a great evil. in a country where people did not care for the outward show of life, where the genius of the people was untheatrical, and they exclusively regarded the substance of things, this matter would be trifling. whether lord and lady derby received the foreign ministers, or lord and lady palmerston, would be a matter of indifference; whether they gave the nicest parties would be important only to the persons at those parties. a nation of unimpressible philosophers would not care at all how the externals of life were managed. who is the showman is not material unless you care about the show. but of all nations in the world the english are perhaps the least a nation of pure philosophers. it would be a very serious matter to us to change every four or five years the visible head of our world. we are not now remarkable for the highest sort of ambition; but we are remarkable for having a great deal of the lower sort of ambition and envy. the house of commons is thronged with people who get there merely for "social purposes," as the phrase goes; that is, that they and their families may go to parties else impossible. members of parliament are envied by thousands merely for this frivolous glory, as a thinker calls it. if the highest post in conspicuous life were thrown open to public competition, this low sort of ambition and envy would be fearfully increased. politics would offer a prize too dazzling for mankind; clever base people would strive for it, and stupid base people would envy it. even now a dangerous distinction is given by what is exclusively called public life. the newspapers describe daily and incessantly a certain conspicuous existence; they comment on its characters, recount its details, investigate its motives, anticipate its course. they give a precedent and a dignity to that world which they do not give to any other. the literary world, the scientific world, the philosophic world, not only are not comparable in dignity to the political world, but in comparison are hardly worlds at all. the newspaper makes no mention of them, and could not mention them. as are the papers, so are the readers; they, by irresistible sequence and association, believe that those people who constantly figure in the papers are cleverer, abler, or at any rate, somehow higher, than other people. "i wrote books," we heard of a man saying, "for twenty years, and i was nobody; i got into parliament, and before i had taken my seat i had become somebody." english politicians are the men who fill the thoughts of the english public: they are the actors on the scene, and it is hard for the admiring spectators not to believe that the admired actor is greater than themselves. in this present age and country it would be very dangerous to give the slightest addition to a force already perilously great. if the highest social rank was to be scrambled for in the house of commons, the number of social adventurers there would be incalculably more numerous, and indefinitely more eager. a very peculiar combination of causes has made this characteristic one of the most prominent in english society. the middle ages left all europe with a social system headed by courts. the government was made the head of all society, all intercourse, and all life; everything paid allegiance to the sovereign, and everything ranged itself round the sovereign--what was next to be greatest, and what was farthest least. the idea that the head of the government is the head of society is so fixed in the ideas of mankind that only a few philosophers regard it as historical and accidental, though when the matter is examined, that conclusion is certain and even obvious. in the first place, society as society does not naturally need a head at all. its constitution, if left to itself, is not monarchical, but aristocratical. society, in the sense we are now talking of, is the union of people for amusement and conversation. the making of marriages goes on in it, as it were, incidentally, but its common and main concern is talking and pleasure. there is nothing in this which needs a single supreme head; it is a pursuit in which a single person does not of necessity dominate. by nature it creates an "upper ten thousand"; a certain number of persons and families possessed of equal culture, and equal faculties, and equal spirit, get to be on a level--and that level a high level. by boldness, by cultivation, by "social science" they raise themselves above others; they become the "first families," and all the rest come to be below them. but they tend to be much about a level among one another; no one is recognised by all or by many others as superior to them all. this is society as it grew up in greece or italy, as it grows up now in any american or colonial town. so far from the notion of a "head of society" being a necessary notion, in many ages it would scarcely have been an intelligible notion. you could not have made socrates understand it. he would have said, "if you tell me that one of my fellows is chief magistrate, and that i am bound to obey him, i understand you, and you speak well; or that another is a priest, and that he ought to offer sacrifices to the gods which i or any one not a priest ought not to offer, again i understand and agree with you. but if you tell me that there is in some citizen a hidden charm by which his words become better than my words, and his house better than my house, i do not follow you, and should be pleased if you will explain yourself." and even if a head of society were a natural idea, it certainly would not follow that the head of the civil government should be that head. society as such has no more to do with civil polity than with ecclesiastical. the organisation of men and women for the purpose of amusement is not necessarily identical with their organisation for political purposes, any more than with their organisation for religious purposes; it has of itself no more to do with the state than it has with the church. the faculties which fit a man to be a great ruler are not those of society; some great rulers have been unintelligible like cromwell, or brusque like napoleon, or coarse and barbarous like sir robert walpole. the light nothings of the drawing-room and the grave things of office are as different from one another as two human occupations can be. there is no naturalness in uniting the two; the end of it always is, that you put a man at the head of society who very likely is remarkable for social defects, and is not eminent for social merits. the best possible commentary on these remarks is the history of english history. it has not been sufficiently remarked that a change has taken place in the structure of our society exactly analogous to the change in our polity. a republic has insinuated itself beneath the folds of a monarchy. charles ii. was really the head of society; whitehall, in his time, was the centre of the best talk, the best fashion, and the most curious love affairs of the age. he did not contribute good morality to society, but he set an example of infinite agreeableness. he concentrated around him all the light part of the high world of london, and london concentrated around it all the light part of the high world of england. the court was the focus where everything fascinating gathered, and where everything exciting centred. whitehall was an unequalled club, with female society of a very clever and sharp sort superadded. all this, as we know, is now altered. buckingham palace is as unlike a club as any place is likely to be. the court is a separate part, which stands aloof from the rest of the london world, and which has but slender relations with the more amusing part of it. the first two georges were men ignorant of english, and wholly unfit to guide and lead english society. they both preferred one or two german ladies of bad character to all else in london. george iii. had no social vices, but he had no social pleasures. he was a family man, and a man of business, and sincerely preferred a leg of mutton and turnips after a good day's work, to the best fashion and the most exciting talk. in consequence, society in london, though still in form under the domination of a court, assumed in fact its natural and oligarchical structure. it, too, has become an "upper ten thousand"; it is no more monarchical in fact than the society of new york. great ladies give the tone to it with little reference to the particular court world. the peculiarly masculine world of the clubs and their neighbourhood has no more to do in daily life with buckingham palace than with the tuileries. formal ceremonies of presentation and attendance are retained. the names of levee and drawing-room still sustain the memory of the time when the king's bed-chamber and the queen's "withdrawing room" were the centres of london life, but they no longer make a part of social enjoyment: they are a sort of ritual in which nowadays almost every decent person can if he likes take part. even court balls, where pleasure is at least supposed to be possible, are lost in a london july. careful observers have long perceived this, but it was made palpable to every one by the death of the prince consort. since then the court has been always in a state of suspended animation, and for a time it was quite annihilated. but everything went on as usual. a few people who had no daughters and little money made it an excuse to give fewer parties, and if very poor, stayed in the country, but upon the whole the difference was not perceptible. the queen bee was taken away, but the hive went on. refined and original observers have of late objected to english royalty that it is not splendid enough. they have compared it with the french court, which is better in show, which comes to the surface everywhere so that you cannot help seeing it, which is infinitely and beyond question the most splendid thing in france. they have said, "that in old times the english court took too much of the nation's money, and spent it ill; but now, when it could be trusted to spend well, it does not take enough of the nation's money. there are arguments for not having a court, and there are arguments for having a splendid court; but there are no arguments for having a mean court. it is better to spend a million in dazzling when you wish to dazzle, than three-quarters of a million in trying to dazzle and yet not dazzling." there may be something in this theory; it may be that the court of england is not quite as gorgeous as we might wish to see it. but no comparison must ever be made between it and the french court. the emperor represents a different idea from the queen. he is not the head of the state; he is the state. the theory of his government is that every one in france is equal, and that the emperor embodies the principle of equality. the greater you make him, the less, and therefore the more equal, you make all others. he is magnified that others may be dwarfed. the very contrary is the principle of english royalty. as in politics it would lose its principal use if it came forward into the public arena, so in society if it advertised itself it would be pernicious. we have voluntary show enough already in london; we do not wish to have it encouraged and intensified, but quieted and mitigated. our court is but the head of an unequal, competing, aristocratic society; its splendour would not keep others down, but incite others to come on. it is of use so long as it keeps others out of the first place, and is guarded and retired in that place. but it would do evil if it added a new example to our many examples of showy wealth--if it gave the sanction of its dignity to the race of expenditure. fourthly. we have come to regard the crown as the head of our morality. the virtues of queen victoria and the virtues of george iii. have sunk deep into the popular heart. we have come to believe that it is natural to have a virtuous sovereign, and that the domestic virtues are as likely to be found on thrones as they are eminent when there. but a little experience and less thought show that royalty cannot take credit for domestic excellence. neither george i., nor george ii., nor william iv. were patterns of family merit; george iv. was a model of family demerit. the plain fact is, that to the disposition of all others most likely to go wrong, to an excitable disposition, the place of a constitutional king has greater temptations than almost any other, and fewer suitable occupations than almost any other. all the world and all the glory of it, whatever is most attractive, whatever is most seductive, has always been offered to the prince of wales of the day, and always will be. it is not rational to expect the best virtue where temptation is applied in the most trying form at the frailest time of human life. the occupations of a constitutional monarch are grave, formal, important, but never exciting; they have nothing to stir eager blood, awaken high imagination, work off wild thoughts. on men like george iii., with a predominant taste for business occupations, the routine duties of constitutional royalty have doubtless a calm and chastening effect. the insanity with which he struggled, and in many cases struggled very successfully, during many years, would probably have burst out much oftener but for the sedative effect of sedulous employment. but how few princes have ever felt the anomalous impulse for real work; how uncommon is that impulse anywhere; how little are the circumstances of princes calculated to foster it; how little can it be relied on as an ordinary breakwater to their habitual temptations! grave and careful men may have domestic virtues on a constitutional throne, but even these fail sometimes, and to imagine that men of more eager temperaments will commonly produce them, is to expect grapes from thorns and figs from thistles. lastly, constitutional royalty has the function which i insisted on at length in my last essay, and which, though it is by far the greatest, i need not now enlarge upon again. it acts as a disguise. it enables our real rulers to change without heedless people knowing it. the masses of englishmen are not fit for an elective government; if they knew how near they were to it, they would be surprised, and almost tremble. of a like nature is the value of constitutional royalty in times of transition. the greatest of all helps to the substitution of a cabinet government for a preceding absolute monarchy is the accession of a king favourable to such a government, and pledged to it. cabinet government, when new, is weak in time of trouble. the prime minister--the chief on whom everything depends, who must take responsibility if any one is to take it, who must use force if any one is to use it--is not fixed in power. he holds his place, by the essence of the government, with some uncertainty. among a people well-accustomed to such a government, such a functionary may be bold: he may rely, if not on the parliament, on the nation which understands and values him. but when that government has only recently been introduced, it is difficult for such a minister to be as bold as he ought to be. his power rests too much on human reason, and too little on human instinct. the traditional strength of the hereditary monarch is at these times of incalculable use. it would have been impossible for england to get through the first years after 1688 but for the singular ability of william iii. it would have been impossible for italy to have attained and kept her freedom without the help of victor emmanuel: neither the work of cavour nor the work of garibaldi were more necessary than his. but the failure of louis philippe to use his reserve power as constitutional monarch is the most instructive proof how great that reserve power is. in february, 1848, guizot was weak because his tenure of office was insecure. louis philippe should have made that tenure certain. parliamentary reform might afterwards have been conceded to instructed opinion, but nothing ought to have been conceded to the mob. the parisian populace ought to have been put down, as guizot wished. if louis philippe had been a fit king to introduce free government, he would have strengthened his ministers when they were the instruments of order, even if he afterwards discarded them when order was safe, and policy could be discussed. but he was one of the cautious men who are "noted" to fail in old age: though of the largest experience and of great ability, he failed and lost his crown for want of petty and momentary energy, which at such a crisis a plain man would have at once put forth. such are the principal modes in which the institution of royalty by its august aspect influences mankind, and in the english state of civilisation they are invaluable. of the actual business of the sovereign--the real work the queen does--i shall speak in my next paper. ii. the house of commons has inquired into most things, but has never had a committee on "the queen". there is no authentic blue-book to say what she does. such an investigation cannot take place; but if it could, it would probably save her much vexatious routine, and many toilsome and unnecessary hours. the popular theory of the english constitution involves two errors as to the sovereign. first, in its oldest form at least, it considers him as an "estate of the realm," a separate co-ordinate authority with the house of lords and the house of commons. this and much else the sovereign once was, but this he is no longer. that authority could only be exercised by a monarch with a legislative veto. he should be able to reject bills, if not as the house of commons rejects them, at least as the house of peers rejects them. but the queen has no such veto. she must sign her own death-warrant if the two houses unanimously send it up to her. it is a fiction of the past to ascribe to her legislative power. she has long ceased to have any. secondly, the ancient theory holds that the queen is the executive. the american constitution was made upon a most careful argument, and most of that argument assumes the king to be the administrator of the english constitution, and an unhereditary substitute for him--viz., a president--to be peremptorily necessary. living across the atlantic, and misled by accepted doctrines, the acute framers of the federal constitution, even after the keenest attention, did not perceive the prime minister to be the principal executive of the british constitution, and the sovereign a cog in the mechanism. there is, indeed, much excuse for the american legislators in the history of that time. they took their idea of our constitution from the time when they encountered it. but in the so-called government of lord north, george iii. was the government. lord north was not only his appointee, but his agent. the minister carried on a war which he disapproved and hated, because it was a war which his sovereign approved and liked. inevitably, therefore, the american convention believed the king, from whom they had suffered, to be the real executive, and not the minister, from whom they had not suffered. if we leave literary theory, and look to our actual old law, it is wonderful how much the sovereign can do. a few years ago the queen very wisely attempted to make life peers, and the house of lords very unwisely, and contrary to its own best interests, refused to admit her claim. they said her power had decayed into non-existence; she once had it, they allowed, but it had ceased by long disuse. if any one will run over the pages of comyn's digest or any other such book, title "prerogative," he will find the queen has a hundred such powers which waver between reality and desuetude, and which would cause a protracted and very interesting legal argument if she tried to exercise them. some good lawyer ought to write a careful book to say which of these powers are really usable, and which are obsolete. there is no authentic explicit information as to what the queen can do, any more than of what she does. in the bare superficial theory of free institutions this is undoubtedly a defect. every power in a popular government ought to be known. the whole notion of such a government is that the political people--the governing people--rules as it thinks fit. all the acts of every administration are to be canvassed by it; it is to watch if such acts seem good, and in some manner or other to interpose if they seem not good. but it cannot judge if it is to be kept in ignorance; it cannot interpose if it does not know. a secret prerogative is an anomaly--perhaps the greatest of anomalies. that secrecy is, however, essential to the utility of english royalty as it now is. above all things our royalty is to be reverenced, and if you begin to poke about it you cannot reverence it. when there is a select committee on the queen, the charm of royalty will be gone. its mystery is its life. we must not let in daylight upon magic. we must not bring the queen into the combat of politics, or she will cease to be reverenced by all combatants; she will become one combatant among many. the existence of this secret power is, according to abstract theory, a defect in our constitutional polity, but it is a defect incident to a civilisation such as ours, where august and therefore unknown powers are needed, as well as known and serviceable powers. if we attempt to estimate the working of this inner power by the evidence of those, whether dead or living, who have been brought in contact with it, we shall find a singular difference. both the courtiers of george iii. and the courtiers of queen victoria are agreed as to the magnitude of the royal influence. it is with both an accepted secret doctrine that the crown does more than it seems. but there is a wide discrepancy in opinion as to the quality of that action. mr. fox did not scruple to describe the hidden influence of george iii. as the undetected agency of "an infernal spirit". the action of the crown at that period was the dread and terror of liberal politicians. but now the best liberal politicians say, "we shall never know, but when history is written our children may know, what we owe to the queen and prince albert". the mystery of the constitution, which used to be hated by our calmest, most thoughtful, and instructed statesmen, is now loved and reverenced by them. before we try to account for this change, there is one part of the duties of the queen which should be struck out of the discussion. i mean the formal part. the queen has to assent to and sign countless formal documents, which contain no matter of policy, of which the purport is insignificant, which any clerk could sign as well. one great class of documents george iii. used to read before he signed them, till lord thurlow told him, "it was nonsense his looking at them, for he could not understand them". but the worst case is that of commissions in the army. till an act passed only three years since the queen used to sign all military commissions, and she still signs all fresh commissions. the inevitable and natural consequence is that such commissions were, and to some extent still are, in arrears by thousands. men have often been known to receive their commissions for the first time years after they have left the service. if the queen had been an ordinary officer she would long since have complained, and long since have been relieved of this slavish labour. a cynical statesman is said to have defended it on the ground "that you may have a fool for a sovereign, and then it would be desirable he should have plenty of occupation in which he can do no harm". but it is in truth childish to heap formal duties of business upon a person who has of necessity so many formal duties of society. it is a remnant of the old days when george iii. would know everything, however trivial, and assent to everything, however insignificant. these labours of routine may be dismissed from the discussions. it is not by them that the sovereign acquires his authority either for evil or for good. the best mode of testing what we owe to the queen is to make a vigorous effort of the imagination, and see how we should get on without her. let us strip cabinet government of all its accessories, let us reduce it to its two necessary constituents--a representative assembly (a house of commons) and a cabinet appointed by that assembly--and examine how we should manage with them only. we are so little accustomed to analyse the constitution; we are so used to ascribe the whole effect of the constitution to the whole constitution, that a great many people will imagine it to be impossible that a nation should thrive or even live with only these two simple elements. but it is upon that possibility that the general imitability of the english government depends. a monarch that can be truly reverenced, a house of peers that can be really respected, are historical accidents nearly peculiar to this one island, and entirely peculiar to europe. a new country, if it is to be capable of a cabinet government, if it is not to degrade itself to presidential government, must create that cabinet out of its native resources--must not rely on these old world debris. many modes might be suggested by which a parliament might do in appearance what our parliament does in reality, viz., appoint a premier. but i prefer to select the simplest of all modes. we shall then see the bare skeleton of this polity, perceive in what it differs from the royal form, and be quite free from the imputation of having selected an unduly charming and attractive substitute. let us suppose the house of commons--existing alone and by itself--to appoint the premier quite simply, just as the shareholders of a railway choose a director. at each vacancy, whether caused by death or resignation, let any member or members have the right of nominating a successor; after a proper interval, such as the time now commonly occupied by a ministerial crisis, ten days or a fortnight, let the members present vote for the candidate they prefer; then let the speaker count the votes, and the candidate with the greatest number be premier. this mode of election would throw the whole choice into the hands of party organisation, just as our present mode does, except in so far as the crown interferes with it; no outsider would ever be appointed, because the immense number of votes which every great party brings into the field would far outnumber every casual and petty minority. the premier should not be appointed for a fixed time, but during good behaviour or the pleasure of parliament. mutatis mutandis, subject to the differences now to be investigated, what goes on now would go on then. the premier then, as now, must resign upon a vote of want of confidence, but the volition of parliament would then be the overt and single force in the selection of a successor, whereas it is now the predominant though latent force. it will help the discussion very much if we divide it into three parts. the whole course of a representative government has three stages--first, when a ministry is appointed; next, during its continuance; last, when it ends. let us consider what is the exact use of the queen at each of these stages, and how our present form of government differs in each, whether for good or for evil from that simpler form of cabinet government which might exist without her. at the beginning of an administration there would not be much difference between the royal and unroyal species of cabinet governments when there were only two great parties in the state, and when the greater of those parties was thoroughly agreed within itself who should be its parliamentary leader, and who therefore should be its premier. the sovereign must now accept that recognised leader; and if the choice were directly made by the house of commons, the house must also choose him; its supreme section, acting compactly and harmoniously, would sway its decisions without substantial resistance, and perhaps without even apparent competition. a predominant party, rent by no intestine demarcation, would be despotic. in such a case cabinet government would go on without friction whether there was a queen or whether there was no queen. the best sovereign could then achieve no good, and the worst effect no harm. but the difficulties are far greater when the predominant party is not agreed who should be its leader. in the royal form of cabinet government the sovereign then has sometimes a substantial selection; in the unroyal, who would choose? there must be a meeting at "willis's rooms"; there must be that sort of interior despotism of the majority over the minority within the party, by which lord john russell in 1859 was made to resign his pretensions to the supreme government, and to be content to serve as a subordinate to lord palmerston. the tacit compression which a party anxious for office would exercise over leaders who divided its strength, would be used and must be used. whether such a party would always choose precisely the best man may well be doubted. in a party once divided it is very difficult to secure unanimity in favour of the very person whom a disinterested bystander would recommend. all manner of jealousies and enmities are immediately awakened, and it is always difficult, often impossible, to get them to sleep again. but though such a party might not select the very best leader, they have the strongest motives to select a very good leader. the maintenance of their rule depends on it under a presidential constitution the preliminary caucuses which choose the president need not care as to the ultimate fitness of the man they choose. they are solely concerned with his attractiveness as a candidate; they need not regard his efficiency as a ruler. if they elect a man of weak judgment, he will reign his stated term; even though he show the best judgment, at the end of that term there will be by constitutional destiny another election. but under a ministerial government there is no such fixed destiny. the government is a removable government, its tenure depends upon its conduct. if a party in power were so foolish as to choose a weak man for its head, it would cease to be in power. its judgment is its life. suppose in 1859 that the whig party had determined to set aside both earl russell and lord palmerston and to choose for its head an incapable nonentity, the whig party would probably have been exiled from office at the schleswig-holstein difficulty. the nation would have deserted them, and parliament would have deserted them, too; neither would have endured to see a secret negotiation, on which depended the portentous alternative of war or peace, in the hands of a person who was thought to be weak--who had been promoted because of his mediocrity--whom his own friends did not respect. a ministerial government, too, is carried on in the face of day. its life is in debate. a president may be a weak man; yet if he keep good ministers to the end of his administration, he may not be found out--it may still be a dubious controversy whether he is wise or foolish. but a prime minister must show what he is. he must meet the house of commons in debate; he must be able to guide that assembly in the management of its business, to gain its ear in every emergency, to rule it in its hours of excitement. he is conspicuously submitted to a searching test, and if he fails he must resign. nor would any party like to trust to a weak man the great power which a cabinet government commits to its premier. the premier, though elected by parliament can dissolve parliament. members would be naturally anxious that the power which might destroy their coveted dignity should be lodged in fit hands. they dare not place in unfit hands a power which, besides hurting the nation, might altogether ruin them. we may be sure, therefore, that whenever the predominant party is divided, the un-royal form of cabinet government would secure for us a fair and able parliamentary leader--that it would give us a good premier, if not the very best. can it be said that the royal form does more? in one case i think it may. if the constitutional monarch be a man of singular discernment, of unprejudiced disposition, and great political knowledge, he may pick out from the ranks of the divided party its very best leader, even at a time when the party, if left to itself, would not nominate him. if the sovereign be able to play the part of that thoroughly intelligent but perfectly disinterested spectator who is so prominent in the works of certain moralists, he may be able to choose better for his subjects than they would choose for themselves. but if the monarch be not so exempt from prejudice, and have not this nearly miraculous discernment, it is not likely that he will be able to make a wiser choice than the choice of the party itself. he certainly is not under the same motive to choose wisely. his place is fixed whatever happens, but the failure of an appointing party depends on the capacity of their appointee. there is great danger, too, that the judgment of the sovereign may be prejudiced. for more than forty years the personal antipathies of george iii. materially impaired successive administrations. almost at the beginning of his career he discarded lord chatham: almost at the end he would not permit mr. pitt to coalesce with mr. fox. he always preferred mediocrity; he generally disliked high ability; he always disliked great ideas. if constitutional monarchs be ordinary men of restricted experience and common capacity (and we have no right to suppose that by miracle they will be more), the judgment of the sovereign will often be worse than the judgment of the party, and he will be very subject to the chronic danger of preferring a respectful common-place man, such as addington, to an independent first-rate man, such as pitt. we shall arrive at the same sort of mixed conclusion if we examine the choice of a premier under both systems in the critical case of cabinet government--the case of three parties. this is the case in which that species of government is most sure to exhibit its defects, and least likely to exhibit its merits. the defining characteristic of that government is the choice of the executive ruler by the legislative assembly; but when there are three parties a satisfactory choice is impossible. a really good selection is a selection by a large majority which trusts those it chooses, but when there are three parties there is no such trust. the numerically weakest has the casting vote--it can determine which candidate shall be chosen. but it does so under a penalty. it forfeits the right of voting for its own candidate. it settles which of other people's favourites shall be chosen, on condition of abandoning its own favourite. a choice based on such self-denial can never be a firm choice--it is a choice at any moment liable to be revoked. the events of 1858, though not a perfect illustration of what i mean, are a sufficient illustration. the radical party, acting apart from the moderate liberal party, kept lord derby in power. the ultra-movement party thought it expedient to combine with the non-movement party. as one of them coarsely but clearly put it, "we get more of our way under these men than under the other men"; he meant that, in his judgment, the tories would be more obedient to the radicals than the whigs. but it is obvious that a union of opposites so marked could not be durable. the radicals bought it by choosing the men whose principles were most adverse to them; the conservatives bought it by agreeing to measures whose scope was most adverse to them. after a short interval the radicals returned to their natural alliance and their natural discontent with the moderate whigs. they used their determining vote first for a government of one opinion and then for a government of the contrary opinion. i am not blaming this policy. i am using it merely as an illustration. i say that if we imagine this sort of action greatly exaggerated and greatly prolonged parliamentary government becomes impossible. if there are three parties, no two of which will steadily combine for mutual action, but of which the weakest gives a rapidly oscillating preference to the two others, the primary condition of a cabinet polity is not satisfied. we have not a parliament fit to choose; we cannot rely on the selection of a sufficiently permanent executive, because there is no fixity in the thoughts and feelings of the choosers. under every species of cabinet government, whether the royal or the unroyal, this defect can be cured in one way only. the moderate people of every party must combine to support the government which, on the whole, suits every party best. this is the mode in which lord palmerston's administration has been lately maintained; a ministry in many ways defective, but more beneficially vigorous abroad, and more beneficially active at home, than the vast majority of english ministries. the moderate conservatives and the moderate radicals have maintained a steady government by a sufficiently coherent union with the moderate whigs. whether there is a king or no king, this perservative self-denial is the main force on which we must rely for the satisfactory continuance of a parliamentary government at this its period of greatest trial. will that moderation be aided or impaired by the addition of a sovereign? will it be more effectual under the royal sort of ministerial government, or will it be less effectual? if the sovereign has a genius for discernment, the aid which he can give at such a crisis will be great. he will select for his minister, and if possible maintain as his minister, the statesman upon whom the moderate party will ultimately fix their choice, but for whom at the outset it is blindly searching; being a man of sense, experience, and tact, he will discern which is the combination of equilibrium, which is the section with whom the milder members of the other sections will at last ally themselves. amid the shifting transitions of confused parties, it is probable that he will have many opportunities of exercising a selection. it will rest with him to call either on a b to form an administration, or upon x y, and either may have a chance of trial. a disturbed state of parties is inconsistent with fixity, but it abounds in momentary tolerance. wanting something, but not knowing with precision what, parties will accept for a brief period anything, to see whether it may be that unknown something--to see what it will do. during the long succession of weak governments which begins with the resignation of the duke of newcastle in 1762 and ends with the accession of mr. pitt in 1784, the vigorous will of george iii. was an agency of the first magnitude. if at a period of complex and protracted division of parties, such as are sure to occur often and last long in every enduring parliamentary government, the extrinsic force of royal selection were always exercised discreetly, it would be a political benefit of incalculable value. but will it be so exercised? a constitutional sovereign must in the common course of government be a man of but common ability. i am afraid, looking to the early acquired feebleness of hereditary dynasties, that we must expect him to be a man of inferior ability. theory and experience both teach that the education of a prince can be but a poor education, and that a royal family will generally have less ability than other families. what right have we then to expect the perpetual entail on any family of an exquisite discretion, which if it be not a sort of genius, is at least as rare as genius? probably in most cases the greatest wisdom of a constitutional king would show itself in well-considered inaction. in the confused interval between 1857 and 1859 the queen and prince albert were far too wise to obtrude any selection of their own. if they had chosen, perhaps they would not have chosen lord palmerston. but they saw, or may be believed to have seen, that the world was settling down without them, and that by interposing an extrinsic agency, they would but delay the beneficial crystallisation of intrinsic forces. there is, indeed, a permanent reason which would make the wisest king, and the king who feels most sure of his wisdom, very slow to use that wisdom. the responsibility of parliament should be felt by parliament. so long as parliament thinks it is the sovereign's business to find a government it will be sure not to find a government itself. the royal form of ministerial government is the worst of all forms if it erect the subsidiary apparatus into the principal force, if it induce the assembly which ought to perform paramount duties to expect some one else to perform them. it should be observed, too, in fairness to the unroyal species of cabinet government, that it is exempt from one of the greatest and most characteristic defects of the royal species. where there is no court there can be no evil influence from a court. what these influences are every one knows; though no one, hardly the best and closest observer, can say with confidence and precision how great their effect is. sir robert walpole, in language too coarse for our modern manners, declared after the death of queen caroline, that he would pay no attention to the king's daughters ("those girls," as he called them), but would rely exclusively on madame de walmoden, the king's mistress. "the king," says a writer in george iv.'s time, "is in our favour, and what is more to the purpose, the marchioness of conyngham is so too." everybody knows to what sort of influences several italian changes of government since the unity of italy have been attributed. these sinister agencies are likely to be most effective just when everything else is troubled, and when, therefore, they are particularly dangerous. the wildest and wickedest king's mistress would not plot against an invulnerable administration. but very many will intrigue when parliament is perplexed, when parties are divided, when alternatives are many, when many evil things are possible, when cabinet government must be difficult. it is very important to see that a good administration can be started without a sovereign, because some colonial statesmen have doubted it. "i can conceive," it has been said, "that a ministry would go on well enough without a governor when it was launched, but i do not see how to launch it." it has even been suggested that a colony which broke away from england, and had to form its own government, might not unwisely choose a governor for life, and solely trusted with selecting ministers, something like the abbe sieyes's grand elector. but the introduction of such an officer into such a colony would in fact be the voluntary erection of an artificial encumbrance to it. he would inevitably be a party man. the most dignified post in the state must be an object of contest to the great sections into which every active political community is divided. these parties mix in everything and meddle in everything; and they neither would nor could permit the most honoured and conspicuous of all stations to be filled, except at their pleasure. they know, too, that the grand elector, the great chooser of ministries, might be, at a sharp crisis, either a good friend or a bad enemy. the strongest party would select some one who would be on their side when he had to take a side, who would incline to them when he did incline, who should be a constant auxiliary to them and a constant impediment to their adversaries. it is absurd to choose by contested party election an impartial chooser of ministers. but it is during the continuance of a ministry, rather than at its creation, that the functions of the sovereign will mainly interest most persons, and that most people will think them to be of the gravest importance. i own i am myself of that opinion. i think it may be shown that the post of sovereign over an intelligent and political people under a constitutional monarchy is the post which a wise man would choose above any other--where he would find the intellectual impulses best stimulated and the worst intellectual impulses best controlled. on the duties of the queen during an administration we have an invaluable fragment from her own hand. in 1851 louis napoleon had his coup d'etat: in 1852 lord john russell had his--he expelled lord palmerston. by a most instructive breach of etiquette he read in the house a royal memorandum on the duties of his rival. it is as follows: "the queen requires, first, that lord palmerston will distinctly state what he proposes in a given case, in order that the queen may know as distinctly to what she is giving her royal sanction. secondly, having once given her sanction to such a measure that it be not arbitrarily altered or modified by the minister. such an act she must consider as failing in sincerity towards the crown, and justly to be visited by the exercise of her constitutional right of dismissing that minister. she expects to be kept informed of what passes between him and foreign ministers before important decisions are taken based upon that intercourse; to receive the foreign despatches in good time; and to have the drafts for her approval sent to her in sufficient time to make herself acquainted with their contents before they must be sent off." in addition to the control over particular ministers, and especially over the foreign minister, the queen has a certain control over the cabinet. the first minister, it is understood, transmits to her authentic information of all the most important decisions, together with, what the newspapers would do equally well, the more important votes in parliament. he is bound to take care that she knows everything which there is to know as to the passing politics of the nation. she has by rigid usage a right to complain if she does not know of every great act of her ministry, not only before it is done, but while there is yet time to consider it--while it is still possible that it may not be done. to state the matter shortly, the sovereign has, under a constitutional monarchy such as ours, three rights--the right to be consulted, the right to encourage, the right to warn. and a king of great sense and sagacity would want no others. he would find that his having no others would enable him to use these with singular effect. he would say to his minister: "the responsibility of these measures is upon you. whatever you think best must be done. whatever you think best shall have my full and effectual support. but you will observe that for this reason and that reason what you propose to do is bad; for this reason and that reason what you do not propose is better. i do not oppose, it is my duty not to oppose; but observe that i warn." supposing the king to be right, and to have what kings often have, the gift of effectual expression, he could not help moving his minister. he might not always turn his course, but he would always trouble his mind. in the course of a long reign a sagacious king would acquire an experience with which few ministers could contend. the king could say: "have you referred to the transactions which happened during such and such an administration, i think about fourteen years ago? they afford an instructive example of the bad results which are sure to attend the policy which you propose. you did not at that time take so prominent a part in public life as you now do, and it is possible you do not fully remember all the events. i should recommend you to recur to them, and to discuss them with your older colleagues who took part in them. it is unwise to recommence a policy which so lately worked so ill." the king would indeed have the advantage which a permanent under-secretary has over his superior the parliamentary secretary--that of having shared in the proceedings of the previous parliamentary secretaries. these proceedings were part of his own life; occupied the best of his thoughts, gave him perhaps anxiety, perhaps pleasure, were commenced in spite of his dissuasion, or were sanctioned by his approval. the parliamentary secretary vaguely remembers that something was done in the time of some of his predecessors, when he very likely did not know the least or care the least about that sort of public business. he has to begin by learning painfully and imperfectly what the permanent secretary knows by clear and instant memory. no doubt a parliamentary secretary always can, and sometimes does, silence his subordinate by the tacit might of his superior dignity. he says: "i do not think there is much in all that. many errors were committed at the time you refer to which we need not now discuss." a pompous man easily sweeps away the suggestions of those beneath him. but though a minister may so deal with his subordinate, he cannot so deal with his king. the social force of admitted superiority by which he overturned his under-secretary is now not with him but against him. he has no longer to regard the deferential hints of an acknowledged inferior, but to answer the arguments of a superior to whom he has himself to be respectful. george iii. in fact knew the forms of public business as well or better than any statesman of his time. if, in addition to his capacity as a man of business and to his industry, he had possessed the higher faculties of a discerning states man, his influence would have been despotic. the old constitution of england undoubtedly gave a sort of power to the crown which our present constitution does not give. while a majority in parliament was principally purchased by royal patronage, the king was a party to the bargain either with his minister or without his minister. but even under our present constitution a monarch like george iii., with high abilities, would possess the greatest influence. it is known to all europe that in belgium king leopold has exercised immense power by the use of such means as i have described. it is known, too, to every one conversant with the real course of the recent history of england, that prince albert really did gain great power in precisely the same way. he had the rare gifts of a constitutional monarch. if his life had been prolonged twenty years, his name would have been known to europe as that of king leopold is known. while he lived he was at a disadvantage. the statesmen who had most power in england were men of far greater experience than himself. he might, and no doubt did, exercise a great, if not a commanding influence over lord malmesbury, but he could not rule lord palmerston. the old statesman who governed england, at an age when most men are unfit to govern their own families, remembered a whole generation of states men who were dead before prince albert was born. the two were of different ages and different natures. the elaborateness of the german prince--an elaborateness which has been justly and happily compared with that of goethe--was wholly alien to the half-irish, half-english, statesman. the somewhat boisterous courage in minor dangers, and the obtrusive use of an always effectual but not always refined, commonplace, which are lord palmerston's defects, doubtless grated on prince albert, who had a scholar's caution and a scholar's courage. the facts will be known to our children's children, though not to us. prince albert did much, but he died ere he could have made his influence felt on a generation of statesmen less experienced than he was, and anxious to learn from him. it would be childish to suppose that a conference between a minister and his sovereign can ever be a conference of pure argument. "the divinity which doth hedge a king" may have less sanctity than it had, but it still has much sanctity. no one, or scarcely any one, can argue with a cabinet minister in his own room as well as he would argue with another man in another room. he cannot make his own points as well; he cannot unmake as well the points presented to him. a monarch's room is worse. the best instance is lord chatham, the most dictatorial and imperious of english statesmen, and almost the first english statesman who was borne into power against the wishes of the king and against the wishes of the nobility--the first popular minister. we might have expected a proud tribune of the people to be dictatorial to his sovereign--to be to the king what he was to all others. on the contrary, he was the slave of his own imagination; there was a kind of mystic enchantment in vicinity to the monarch which divested him of his ordinary nature. "the least peep into the king's closet," said mr. burke, "intoxicates him, and will to the end of his life." a wit said that, even at the levee, he bowed so low that you could see the tip of his hooked nose between his legs. he was in the habit of kneeling at the bedside of george iii. while transacting business. now no man can argue on his knees. the same superstitious feeling which keeps him in that physical attitude will keep him in a corresponding mental attitude. he will not refute the bad arguments of the king as he will refute another man's bad arguments. he will not state his own best arguments effectively and incisively when he knows that the king would not like to hear them. in a nearly balanced argument the king must always have the better, and in politics many most important arguments are nearly balanced. whenever there was much to be said for the king's opinion it would have its full weight; whatever was said for the minister's opinion would only have a lessened and enfeebled weight. the king, too, possesses a power, according to theory, for extreme use on a critical occasion, but which he can in law use on any occasion. he can dissolve; he can say to his minister, in fact, if not in words, "this parliament sent you here, but i will see if i cannot get another parliament to send some one else here." george iii. well understood that it was best to take his stand at times and on points when it was perhaps likely, or at any rate not unlikely, the nation would support him. he always made a minister that he did not like tremble at the shadow of a possible successor. he had a cunning in such matters like the cunning of insanity. he had conflicts with the ablest men of his time, and he was hardly ever baffled. he understood how to help a feeble argument by a tacit threat, and how best to address it to an habitual deference. perhaps such powers as these are what a wise man would most seek to exercise and least fear to possess. to wish to be a despot, "to hunger after tyranny," as the greek phrase had it, marks in our day an uncultivated mind. a person who so wishes cannot have weighed what butler calls the "doubtfulness things are involved in". to be sure you are right to impose your will, or to wish to impose it, with violence upon others; to see your own ideas vividly and fixedly, and to be tormented till you can apply them in life and practice, not to like to hear the opinions of others, to be unable to sit down and weigh the truth they have, are but crude states of intellect in our present civilisation. we know, at least, that facts are many; that progress is complicated; that burning ideas (such as young men have) are mostly false and always incomplete. the notion of a far-seeing and despotic statesman, who can lay down plans for ages yet unborn, is a fancy generated by the pride of the human intellect to which facts give no support. the plans of charlemagne died with him; those of richelieu were mistaken; those of napoleon gigantesque and frantic. but a wise and great constitutional monarch attempts no such vanities. his career is not in the air; he labours in the world of sober fact; he deals with schemes which can be effected--schemes which are desirable--schemes which are worth the cost. he says to the ministry his people send to him, to ministry after ministry, "i think so and so; do you see if there is anything in it. i have put down my reasons in a certain memorandum, which i will give you. probably it does not exhaust the subject, but it will suggest materials for your consideration." by years of discussion with ministry after ministry, the best plans of the wisest king would certainly be adopted, and the inferior plans, the impracticable plans, rooted out and rejected. he could not be uselessly beyond his time, for he would have been obliged to convince the representatives, the characteristic men of his time. he would have the best means of proving that he was right on all new and strange matters, for he would have won to his side probably, after years of discussion, the chosen agents of the commonplace world--men who were where they were, because they had pleased the men of the existing age, who will never be much disposed to new conceptions or profound thoughts. a sagacious and original constitutional monarch might go to his grave in peace if any man could. he would know that his best laws were in harmony with his age; that they suited the people who were to work them, the people who were to be benefited by them. and he would have passed a happy life. he would have passed a life in which he could always get his arguments heard, in which he could always make those who have the responsibility of action think of them before they acted--in which he could know that the schemes which he had set at work in the world were not the casual accidents of an individual idiosyncrasy, which are mostly much wrong, but the likeliest of all things to be right--the ideas of one very intelligent man at last accepted and acted on by the ordinary intelligent many. but can we expect such a king, or, for that is the material point, can we expect a lineal series of such kings? every one has heard the reply of the emperor alexander to madame de stael, who favoured him with a declamation in praise of beneficent despotism. "yes, madame, but it is only a happy accident." he well knew that the great abilities and the good intentions necessary to make an efficient and good despot never were continuously combined in any line of rulers. he knew that they were far out of reach of hereditary human nature. can it be said that the characteristic qualities of a constitutional monarch are more within its reach? i am afraid it cannot. we found just now that the characteristic use of an hereditary constitutional monarch, at the outset of an administration, greatly surpassed the ordinary competence of hereditary faculties. i fear that an impartial investigation will establish the same conclusion as to his uses during the continuance of an administration. if we look at history, we shall find that it is only during the period of the present reign that in england the duties of a constitutional sovereign have ever been well performed. the first two georges were ignorant of english affairs, and wholly unable to guide them, whether well or ill; for many years in their time the prime minister had, over and above the labour of managing parliament, to manage the woman--sometimes the queen, sometimes the mistress--who managed the sovereign; george iii. interfered unceasingly, but he did harm unceasingly; george iv. and william iv. gave no steady continuing guidance, and were unfit to give it. on the continent, in first-class countries, constitutional royalty has never lasted out of one generation. louis philippe, victor emmanuel, and leopold are the founders of their dynasties; we must not reckon in constitutional monarchy any more than in despotic monarchy on the permanence in the descendants of the peculiar genius which founded the race. as far as experience goes, there is no reason to expect an hereditary series of useful limited monarchs. if we look to theory, there is even less reason to expect it. a monarch is useful when he gives an effectual and beneficial guidance to his ministers. but these ministers are sure to be among the ablest men of their time. they will have had to conduct the business of parliament so as to satisfy it; they will have to speak so as to satisfy it. the two together cannot be done save by a man of very great and varied ability. the exercise of the two gifts is sure to teach a man much of the world; and if it did not, a parliamentary leader has to pass through a magnificent training before he becomes a leader. he has to gain a seat in parliament; to gain the ear of parliament; to gain the confidence of parliament; to gain the confidence of his colleagues. no one can achieve these--no one, still more, can both achieve them and retain them--without a singular ability, nicely trained in the varied detail of life. what chance has an hereditary monarch such as nature forces him to be, such as history shows he is, against men so educated and so born? he can but be an average man to begin with; sometimes he will be clever, but sometimes he will be stupid; in the long run he will be neither clever nor stupid; he will be the simple, common man who plods the plain routine of life from the cradle to the grave. his education will be that of one who has never had to struggle; who has always felt that he has nothing to gain; who has had the first dignity given him; who has never seen common life as in truth it is. it is idle to expect an ordinary man born in the purple to have greater genius than an extraordinary man born out of the purple; to expect a man whose place has always been fixed to have a better judgment than one who has lived by his judgment; to expect a man whose career will be the same whether he is discreet or whether he is indiscreet to have the nice discretion of one who has risen by his wisdom, who will fall if he ceases to be wise. the characteristic advantage of a constitutional king is the permanence of his place. this gives him the opportunity of acquiring a consecutive knowledge of complex transactions, but it gives only an opportunity. the king must use it. there is no royal road to political affairs: their detail is vast, disagreeable, complicated, and miscellaneous. a king, to be the equal of his ministers in discussion, must work as they work; he must be a man of business as they are men of business. yet a constitutional prince is the man who is most tempted to pleasure, and the least forced to business. a despot must feel that he is the pivot of the state. the stress of his kingdom is upon him. as he is, so are his affairs. he may be seduced into pleasure; he may neglect all else; but the risk is evident. he will hurt himself; he may cause a revolution. if he becomes unfit to govern, some one else who is fit may conspire against him. but a constitutional king need fear nothing. he may neglect his duties, but he will not be injured. his place will be as fixed, his income as permanent, his opportunities of selfish enjoyment as full as ever. why should he work? it is true he will lose the quiet and secret influence which in the course of years industry would gain for him; but an eager young man, on whom the world is squandering its luxuries and its temptations, will not be much attracted by the distant prospect of a moderate influence over dull matters. he may form good intentions; he may say, "next year i will read these papers; i will try and ask more questions; i will not let these women talk to me so". but they will talk to him. the most hopeless idleness is that most smoothed with excellent plans. "the lord treasurer," says swift, "promised he will settle it to-night, and so he will say a hundred nights." we may depend upon it the ministry whose power will be lessened by the prince's attention will not be too eager to get him to attend. so it is if the prince come young to the throne; but the case is worse when he comes to it old or middle-aged. he is then unfit to work. he will then have spent the whole of youth and the first part of manhood in idleness, and it is unnatural to expect him to labour. a pleasure-loving lounger in middle life will not begin to work as george iii. worked, or as prince albert worked. the only fit material for a constitutional king is a prince who begins early to reign--who in his youth is superior to pleasure--who in his youth is willing to labour--who has by nature a genius for discretion. such kings are among god's greatest gifts, but they are also among his rarest. an ordinary idle king on a constitutional throne will leave no mark on his time: he will do little good and as little harm; the royal form of cabinet government will work in his time pretty much as the unroyal. the addition of a cypher will not matter though it take precedence of the significant figures. but corruptio optimi pessima. the most evil case of the royal form is far worse than the most evil case of the unroyal. it is easy to imagine, upon a constitutional throne, an active and meddling fool who always acts when he should not, who never acts when he should, who warns his ministers against their judicious measures, who encourages them in their injudicious measures. it is easy to imagine that such a king should be the tool of others; that favourites should guide him; that mistresses should corrupt him; that the atmosphere of a bad court should be used to degrade free government. we have had an awful instance of the dangers of constitutional royalty. we have had the case of a meddling maniac. during great part of his life george iii.'s reason was half upset by every crisis. throughout his life he had an obstinacy akin to that of insanity. he was an obstinate and an evil influence; he could not be turned from what was inexpedient; by the aid of his station he turned truer but weaker men from what was expedient. he gave an excellent moral example to his contemporaries, but he is an instance of those whose good dies with them, while their evil lives after them. he prolonged the american war, perhaps he caused the american war, so we inherit the vestiges of an american hatred; he forbade mr. pitt's wise plans, so we inherit an irish difficulty. he would not let us do right in time, so now our attempts at right are out of time and fruitless. constitutional royalty under an active and half-insane king is one of the worst of governments. there is in it a secret power which is always eager, which is generally obstinate, which is often wrong, which rules ministers more than they know themselves, which overpowers them much more than the public believe, which is irresponsible because it is inscrutable, which cannot be prevented because it cannot be seen. the benefits of a good monarch are almost invaluable, but the evils of a bad monarch are almost irreparable. we shall find these conclusions confirmed if we examine the powers and duties of an english monarch at the break-up of an administration. but the power of dissolution and the prerogative of creating peers, the cardinal powers of that moment are too important and involve too many complex matters to be sufficiently treated at the very end of a paper as long as this. no. iv. the house of lords. in my last essay i showed that it was possible for a constitutional monarch to be, when occasion served, of first-rate use both at the outset and during the continuance of an administration; but that in matter of fact it was not likely that he would be useful. the requisite ideas, habits, and faculties, far surpass the usual competence of an average man, educated in the common manner of sovereigns. the same arguments are entirely applicable at the close of an administration. but at that conjuncture the two most singular prerogatives of an english king--the power of creating new peers and the power of dissolving the commons--come into play; and we cannot duly criticise the use or misuse of these powers till we know what the peers are and what the house of commons is. the use of the house of lords or, rather, of the lords, in its dignified capacity--is very great. it does not attract so much reverence as the queen, but it attracts very much. the office of an order of nobility is to impose on the common people--not necessarily to impose on them what is untrue, yet less what is hurtful; but still to impose on their quiescent imaginations what would not otherwise be there. the fancy of the mass of men is incredibly weak; it can see nothing without a visible symbol, and there is much that it can scarcely make out with a symbol. nobility is the symbol of mind. it has the marks from which the mass of men always used to infer mind, and often still infer it. a common clever man who goes into a country place will get no reverence; but the "old squire" will get reverence. even after he is insolvent, when every one knows that his ruin is but a question of time, he will get five times as much respect from the common peasantry as the newly-made rich man who sits beside him. the common peasantry will listen to his nonsense more submissively than to the new man's sense. an old lord will get infinite respect. his very existence is so far useful that it awakens the sensation of obedience to a sort of mind in the coarse, dull, contracted multitude, who could neither appreciate nor perceive any other. the order of nobility is of great use, too, not only in what it creates, but in what it prevents. it prevents the rule of wealth--the religion of gold. this is the obvious and natural idol of the anglo-saxon. he is always trying to make money; he reckons everything in coin; he bows down before a great heap and sneers as he passes a little heap. he has a "natural instinctive admiration of wealth for its own sake". and within good limits the feeling is quite right. so long as we play the game of industry vigorously and eagerly (and i hope we shall long play it, for we must be very different from what we are if we do anything better), we shall of necessity respect and admire those who play successfully, and a little despise those who play unsuccessfully. whether this feeling be right or wrong, it is useless to discuss; to a certain degree, it is involuntary; it is not for mortals to settle whether we will have it or not; nature settles for us that, within moderate limits, we must have it. but the admiration of wealth in many countries goes far beyond this; it ceases to regard in any degree the skill of acquisition; it respects wealth in the hands of the inheritor just as much as in the hands of the maker; it is a simple envy and love of a heap of gold as a heap of gold. from this our aristocracy preserves us. there is no country where a "poor devil of a millionaire is so ill off as in england". the experiment is tried every day, and every day it is proved that money alone--money pur et simple--will not buy "london society". money is kept down, and, so to say, cowed by the predominant authority of a different power. but it may be said that this is no gain; that worship for worship, the worship of money is as good as the worship of rank. even granting that it were so, it is a great gain to society to have two idols: in the competition of idolatries the true worship gets a chance. but it is not true that the reverence for rank--at least, for hereditary rank--is as base as the reverence for money. as the world has gone, manner has been half-hereditary in certain castes, and manner is one of the fine arts. it is the style of society; it is in the daily-spoken intercourse of human beings what the art of literary expression is in their occasional written intercourse. in reverencing wealth we reverence not a man, but an appendix to a man; in reverencing inherited nobility, we reverence the probable possession of a great faculty--the faculty of bringing out what is in one. the unconscious grace of life may be in the middle classes: finely-mannered persons are born everywhere; but it ought to be in the aristocracy: and a man must be born with a hitch in his nerves if he has not some of it. it is a physiological possession of the race, though it is sometimes wanting in the individual. there is a third idolatry from which that of rank preserves us, and perhaps it is the worst of any--that of office. the basest deity is a subordinate employee, and yet just now in civilised governments it is the commonest. in france and all the best of the continent it rules like a superstition. it is to no purpose that you prove that the pay of petty officials is smaller than mercantile pay; that their work is more monotonous than mercantile work; that their mind is less useful and their life more tame. they are still thought to be greater and better. they are decords; they have a little red on the left breast of their coat, and no argument will answer that. in england, by the odd course of our society, what a theorist would desire has in fact turned up. the great offices, whether permanent or parliamentary, which require mind now give social prestige, and almost only those. an under-secretary of state with 2000 pounds a year is a much stronger man than the director of a finance company with 5000 pounds, and the country saves the difference. but except in a few offices like the treasury, which were once filled with aristocratic people, and have an odour of nobility at second-hand, minor place is of no social use. a big grocer despises the exciseman; and what in many countries would be thought impossible, the exciseman envies the grocer. solid wealth tells where there is no artificial dignity given to petty public functions. a clerk in the public service is "nobody"; and you could not make a common englishman see why he should be anybody. but it must be owned that this turning of society into a political expedient has half spoiled it. a great part of the "best" english people keep their mind in a state of decorous dulness. they maintain their dignity; they get obeyed; they are good and charitable to their dependants. but they have no notion of play of mind: no conception that the charm of society depends upon it. they think cleverness an antic, and have a constant though needless horror of being thought to have any of it. so much does this stiff dignity give the tone, that the few englishmen capable of social brilliancy mostly secrete it. they reserve it for persons whom they can trust, and whom they know to be capable of appreciating its nuances. but a good government is well worth a great deal of social dulness. the dignified torpor of english society is inevitable if we give precedence, not to the cleverest classes, but to the oldest classes, and we have seen how useful that is. the social prestige of the aristocracy is, as every one knows, immensely less than it was a hundred years or even fifty years since. two great movements--the two greatest of modern society--have been unfavourable to it. the rise of industrial wealth in countless forms has brought in a competitor which has generally more mind, and which would be supreme were it not for awkwardness and intellectual gene. every day our companies, our railways, our debentures, and our shares, tend more and more to multiply these surroundings of the aristocracy, and in time they will hide it. and while this undergrowth has come up, the aristocracy have come down. they have less means of standing out than they used to have. their power is in their theatrical exhibition, in their state. but society is every day becoming less stately. as our great satirist has observed, "the last duke of st. david's used to cover the north road with his carriages; landladies and waiters bowed before him. the present duke sneaks away from a railway station, smoking a cigar, in a brougham." the aristocracy cannot lead the old life if they would; they are ruled by a stronger power. they suffer from the tendency of all modern society to raise the average, and to lower--comparatively, and perhaps absolutely, to lower--the summit. as the picturesqueness, the featureliness, of society diminishes, aristocracy loses the single instrument of its peculiar power. if we remember the great reverence which used to be paid to nobility as such, we shall be surprised that the house of lords as an assembly, has always been inferior; that it was always just as now, not the first, but the second of our assemblies. i am not, of course, now speaking of the middle ages: i am not dealing with the embryo or the infant form of our constitution; i am only speaking of its adult form. take the times of sir r. walpole. he was prime minister because he managed the house of commons; he was turned out because he was beaten on an election petition in that house; he ruled england because he ruled that house. yet the nobility were then the governing power in england. in many districts the word of some lord was law. the "wicked lord lowther," as he was called, left a name of terror in westmoreland during the memory of men now living. a great part of the borough members and a great part of the county members were their nominees; an obedient, unquestioning deference was paid them. as individuals the peers were the greatest people; as a house the collected peers were but the second house. several causes contributed to create this anomaly, but the main cause was a natural one. the house of peers has never been a house where the most important peers were most important. it could not be so. the qualities which fit a man for marked eminence, in a deliberative assembly, are not hereditary, and are not coupled with great estates. in the nation, in the provinces, in his own province, a duke of devonshire, or a duke of bedford, was a much greater man than lord thurlow. they had great estates, many boroughs, innumerable retainers, followings like a court. lord thurlow had no boroughs, no retainers; he lived on his salary. till the house of lords met, the dukes were not only the greatest, but immeasurably the greatest. but as soon as the house met, lord thurlow became the greatest. he could speak, and the others could not speak. he could transact business in half an hour which they could not have transacted in a day, or could not have transacted at all. when some foolish peer, who disliked his domination, sneered at his birth, he had words to meet the case: he said it was better for any one to owe his place to his own exertions than to owe it to descent, to being the "accident of an accident". but such a house as this could not be pleasant to great noblemen. they could not like to be second in their own assembly (and yet that was their position from age to age) to a lawyer who was of yesterday,--whom everybody could remember without briefs, who had talked for "hire," who had "hungered after six-and-eightpence". great peers did not gain glory from the house; on the contrary, they lost glory when they were in the house. they devised two expedients to get out of this difficulty: they invented proxies which enabled them to vote without being present, without being offended by vigour and invective, without being vexed by ridicule, without leaving the rural mansion or the town palace where they were demigods. and what was more effectual still, they used their influence in the house of commons instead of the house of lords. in that indirect manner a rural potentate, who half returned two county members, and wholly returned two borough members, who perhaps gave seats to members of the government, who possibly seated the leader of the opposition, became a much greater man than by sitting on his own bench, in his own house, hearing a chancellor talk. the house of lords was a second-rate force, even when the peers were a first-rate force, because the greatest peers, those who had the greatest social importance, did not care for their own house, or like it, but gained great part of their political power by a hidden but potent influence in the competing house. when we cease to look at the house of lords under its dignified aspect, and come to regard it under its strictly useful aspect, we find the literary theory of the english constitution wholly wrong, as usual. this theory says that the house of lords is a co-ordinate estate of the realm, of equal rank with the house of commons; that it is the aristocratic branch, just as the commons is the popular branch; and that by the principle of our constitution the aristocratic branch has equal authority with the popular branch. so utterly false is this doctrine that it is a remarkable peculiarity, a capital excellence of the british constitution, that it contains a sort of upper house, which is not of equal authority to the lower house, yet still has some authority. the evil of two co-equal houses of distinct natures is obvious. each house can stop all legislation, and yet some legislation may be necessary. at this moment we have the best instance of this which could be conceived. the upper house of our victorian constitution, representing the rich wool-growers, has disagreed with the lower assembly, and most business is suspended. but for a most curious stratagem, the machine of government would stand still. most constitutions have committed this blunder. the two most remarkable republican institutions in the world commit it. in both the american and the swiss constitutions the upper house has as much authority as the second: it could produce the maximum of impediment--the dead-lock, if it liked; if it does not do so, it is owing not to the goodness of the legal constitution, but to the discreetness of the members of the chamber. in both these constitutions, this dangerous division is defended by a peculiar doctrine with which i have nothing to do now. it is said that there must be in a federal government some institution, some authority, some body possessing a veto in which the separate states composing the confederation are all equal. i confess this doctrine has to me no self-evidence, and it is assumed, but not proved. the state of delaware is not equal in power or influence to the state of new york, and you cannot make it so by giving it an equal veto in an upper chamber. the history of such an institution is indeed most natural. a little state will like, and must like, to see some token, some memorial mark of its old independence preserved in the constitution by which that independence is extinguished. but it is one thing for an institution to be natural, and another for it to be expedient. if indeed it be that a federal government compels the erection of an upper chamber of conclusive and co-ordinate authority, it is one more in addition to the many other inherent defects of that kind of government. it may be necessary to have the blemish, but it is a blemish just as much. there ought to be in every constitution an available authority somewhere. the sovereign power must be come-at-able. and the english have made it so. the house of lords, at the passing of the reform act of 1832, was as unwilling to concur with the house of commons as the upper chamber at victoria to concur with the lower chamber. but it did concur. the crown has the authority to create new peers; and the king of the day had promised the ministry of the day to create them. the house of lords did not like the precedent, and they passed the bill. the power was not used, but its existence was as useful as its energy. just as the knowledge that his men can strike makes a master yield in order that they may not strike, so the knowledge that their house could be swamped at the will of the king--at the will of the people--made the lords yield to the people. from the reform act the function of the house of lords has been altered in english history. before that act it was, if not a directing chamber, at least a chamber of directors. the leading nobles, who had most influence in the commons, and swayed the commons, sat there. aristocratic influence was so powerful in the house of commons, that there never was any serious breach of unity. when the houses quarrelled, it was as in the great aylesbury case, about their respective privileges, and not about the national policy. the influence of the nobility was then so potent, that it was not necessary to exert it. the english constitution, though then on this point very different from what it now is, did not even then contain the blunder of the victorian or of the swiss constitution. it had not two houses of distinct origin; it had two houses of common origin--two houses in which the predominant element was the same. the danger of discordance was obviated by a latent unity. since the reform act the house of lords has become a revising and suspending house. it can alter bills; it can reject bills on which the house of commons is not yet thoroughly in earnest--upon which the nation is not yet determined. their veto is a sort of hypothetical veto. they say, we reject your bill for this once or these twice, or even these thrice: but if you keep on sending it up, at last we won't reject it. the house has ceased to be one of latent directors, and has become one of temporary rejectors and palpable alterers. it is the sole claim of the duke of wellington to the name of a statesman, that he presided over this change. he wished to guide the lords to their true position, and he did guide them. in 1846, in the crisis of the corn-law struggle, and when it was a question whether the house of lords should resist or yield, he wrote a very curious letter to the late lord derby:-"for many years, indeed from the year 1830, when i retired from office, i have endeavoured to manage the house of lords upon the principle on which i conceive that the institution exists in the constitution of the country, that of conservatism. i have invariably objected to all violent and extreme measures, which is not exactly the mode of acquiring influence in a political party in england, particularly one in opposition to government. i have invariably supported government in parliament upon important occasions, and have always exercised my personal influence to prevent the mischief of anything like a difference or division between the two houses,--of which there are some remarkable instances, to which i will advert here, as they will tend to show you the nature of my management, and possibly, in some degree, account for the extraordinary power which i have for so many years exercised, without any apparent claim to it." upon finding the difficulties in which the late king william was involved by a promise made to create peers, the number, i believe, indefinite, i determined myself, and i prevailed upon others, the number very large, to be absent from the house in the discussion of the last stages of the reform bill, after the negotiations had failed for the formation of a new administration. this course gave at the time great dissatisfaction to the party; notwithstanding that i believe it saved the existence of the house of lords at the time, and the constitution of the country. "subsequently, throughout the period from 1835 to 1841, i prevailed upon the house of lords to depart from many principles and systems which they as well as i had adopted and voted on irish tithes, irish corporations, and other measures, much to the vexation and annoyance of many. but i recollect one particular measure, the union of the provinces of upper and lower canada, in the early stages of which i had spoken in opposition to the measure, and had protested against it; and in the last stages of it i prevailed upon the house to agree to, and pass it, in order to avoid the injury to the public interests of a dispute between the houses upon a question of such importance. then i supported the measures of the government, and protected the servant of the government, captain elliot, in china. all of which tended to weaken my influence with some of the party; others, possibly a majority, might have approved of the course which i took. it was at the same time well known that from the commencement at least of lord melbourne's government, i was in constant communication with it, upon all military matters, whether occurring at home or abroad, at all events. but likewise upon many others." "all this tended of course to diminish my influence in the conservative party, while it tended essentially to the ease and satisfaction of the sovereign, and to the maintenance of good order. at length came the resignation of the government by sir robert peel, in the month of december last, and the queen desiring lord john russell to form an administration. on the 12th of december the queen wrote to me the letter of which i enclose the copy, and the copy of my answer of the same date; of which it appears that you have never seen copies, although i communicated them immediately to sir robert peel. it was impossible for me to act otherwise than is indicated in my letter to the queen. i am the servant of the crown and people. i have been paid and rewarded, and i consider myself retained; and that i can't do otherwise than serve as required, when i can do so without dishonour, that is to say, as long as i have health and strength to enable me to serve. but it is obvious that there is, and there must be, an end of all connection and counsel between party and me. i might with consistency, and some may think that i ought to have declined to belong to sir robert peel's cabinet on the night of the 20th of december. but my opinion is, that if i had, sir robert peel's government would not have been framed; that we should have had ---and ---in office next morning. "but, at all events, it is quite obvious that when that arrangement comes, which sooner or later must come, there will be an end to all influence on my part over the conservative party, if i should be so indiscreet as to attempt to exercise any. you will see, therefore, that the stage is quite clear for you, and that you need not apprehend the consequences of differing in opinion from me when you will enter upon it; as in truth i have, by my letter to the queen of the 12th of december, put an end to the connection between the party and me, when the party will be in opposition to her majesty's government." "my opinion is, that the great object of all is that you should assume the station, and exercise the influence, which i have so long exercised in the house of lords. the question is, how is that object to be attained? by guiding their opinion and decision, or by following it? you will see that i have endeavoured to guide their opinion, and have succeeded upon some most remarkable occasions. but it has been by a good deal of management. "upon the important occasion and question now before the house, i propose to endeavour to induce them to avoid to involve the country in the additional difficulties of a difference of opinion, possibly a dispute between the houses, on a question in the decision of which it has been frequently asserted that their lordships had a personal interest; which assertion, however false as affecting each of them personally, could not be denied as affecting the proprietors of land in general. i am aware of the difficulty, but i don't despair of carrying the bill through. you must be the best judge of the course which you ought to take, and of the course most likely to conciliate the confidence of the house of lords. my opinion is, that you should advise the house to vote that which would tend most to public order, and would be most beneficial to the immediate interests of the country." this is the mode in which the house of lords came to be what it now is, a chamber with (in most cases) a veto of delay with (in most cases) a power of revision, but with no other rights or powers. the question we have to answer is, "the house of lords being such, what is the use of the lords?" the common notion evidently fails, that it is a bulwark against imminent revolution. as the duke's letter in every line evinces, the wisest members, the guiding members of the house, know that the house must yield to the people if the people is determined. the two cases--that of the reform act and the corn laws--were decisive cases. the great majority of the lords thought reform revolution, free-trade confiscation, and the two together ruin. if they could ever have been trusted to resist the people, they would then have resisted it. but in truth it is idle to expect a second chamber--a chamber of notables--ever to resist a popular chamber, a nation's chamber, when that chamber is vehement and the nation vehement too. there is no strength in it for that purpose. every class chamber, every minority chamber, so to speak, feels weak and helpless when the nation is excited. in a time of revolution there are but two powers, the sword and the people. the executive commands the sword; the great lesson which the first napoleon taught the parisian populace--the contribution he made to the theory of revolutions at the 18th brumaire--is now well known. any strong soldier at the head of the army can use the army. but a second chamber cannot use it. it is a pacific assembly composed of timid peers, aged lawyers, or, as abroad, clever litterateurs. such a body has no force to put down the nation, and if the nation will have it do something it must do it. the very nature, too, as has been seen, of the lords in the english constitution, shows that it cannot stop revolution. the constitution contains an exceptional provision to prevent it stopping it. the executive, the appointee of the popular chamber and the nation, can make new peers, and so create a majority in the peers; it can say to the lords, "use the powers of your house as we like, or you shall not use them at all. we will find others to use them; your virtue shall go out of you if it is not used as we like, and stopped when we please." an assembly under such a threat cannot arrest, and could not be intended to arrest, a determined and insisting executive. in fact the house of lords, as a house, is not a bulwark that will keep out revolution, but an index that revolution is unlikely. resting as it does upon old deference, and inveterate homage, it shows that the spasm of new forces, the outbreak of new agencies, which we call revolution, is for the time simply impossible. so long as many old leaves linger on the november trees, you know that there has been little frost and no wind; just so while the house of lords retains much power, you may know that there is no desperate discontent in the country, no wild agency likely to cause a great demolition. there used to be a singular idea that two chambers--a revising chamber and a suggesting chamber--were essential to a free government. the first person who threw a hard stone--an effectually hitting stone--against the theory was one very little likely to be favourable to democratic influence, or to be blind to the use of aristocracy; it was the present lord grey. he had to look at the matter practically. he was the first great colonial minister of england who ever set himself to introduce representative institutions into all her capable colonies, and the difficulty stared him in the face that in those colonies there were hardly enough good people for one assembly, and not near enough good people for two assemblies. it happened--and most naturally happened--that a second assembly was mischievous. the second assembly was either the nominee of the crown, which in such places naturally allied itself with better instructed minds, or was elected by people with a higher property qualification--some peculiarly well-judging people. both these choosers choose the best men in the colony, and put them into the second assembly. but thus the popular assembly was left without those best men. the popular assembly was denuded of those guides and those leaders who would have led and guided it best. those superior men were put aside to talk to one another, and perhaps dispute with one another; they were a concentrated instance of high but neutralised forces. they wished to do good, but they could do nothing. the lower house, with all the best people in the colony extracted, did what it liked. the democracy was strengthened rather than weakened by the isolation of its best opponents in a weak position. as soon as experience had shown this, or seemed to show it, the theory that two chambers were essential to a good and free government vanished away. with a perfect lower house it is certain that an upper house would be scarcely of any value. if we had an ideal house of commons perfectly representing the nation, always moderate, never passionate, abounding in men of leisure, never omitting the slow and steady forms necessary for good consideration, it is certain that we should not need a higher chamber. the work would be done so well that we should not want any one to look over or revise it. and whatever is unnecessary in government is pernicious. human life makes so much complexity necessary that an artificial addition is sure to do harm: you cannot tell where the needless bit of machinery will catch and clog the hundred needful wheels; but the chances are conclusive that it will impede them some where, so nice are they and so delicate. but though beside an ideal house of commons the lords would be unnecessary, and therefore pernicious, beside the actual house a revising and leisured legislature is extremely useful, if not quite necessary. at present the chance majorities on minor questions in the house of commons are subject to no effectual control. the nation never attends to any but the principal matters of policy and state. upon these it forms that rude, rough, ruling judgment which we call public opinion; but upon other things it does not think at all, and it would be useless for it to think. it has not the materials for forming a judgment: the detail of bills, the instrumental part of policy, the latent part of legislation, are wholly out of its way. it knows nothing about them, and could not find time or labour for the careful investigation by which alone they can be apprehended. a casual majority of the house of commons has therefore dominant power: it can legislate as it wishes. and though the whole house of commons upon great subjects very fairly represents public opinion, and though its judgment upon minor questions is, from some secret excellencies in its composition, remarkably sound and good; yet, like all similar assemblies, it is subject to the sudden action of selfish combinations. there are said to be 200 "members for the railways" in the present parliament. if these 200 choose to combine on a point which the public does not care for, and which they care for because it affects their purse, they are absolute. a formidable sinister interest may always obtain the complete command of a dominant assembly by some chance and for a moment, and it is therefore of great use to have a second chamber of an opposite sort, differently composed, in which that interest in all likelihood will not rule. the most dangerous of all sinister interests is that of the executive government, because it is the most powerful. it is perfectly possible--it has happened and will happen again--that the cabinet, being very powerful in the commons, may inflict minor measures on the nation which the nation did not like, but which it did not understand enough to forbid. if, therefore, a tribunal of revision can be found in which the executive, though powerful, is less powerful, the government will be the better; the retarding chamber will impede minor instances of parliamentary tyranny, though it will not prevent or much impede revolution. every large assembly is, moreover, a fluctuating body; it is not one house, so to say, but a set of houses; it is one set of men to-night and another to-morrow night. a certain unity is doubtless preserved by the duty which the executive is supposed to undertake, and does undertake, of keeping a house; a constant element is so provided about which all sorts of variables accumulate and pass away. but even after due allowance for the full weight of this protective machinery, our house of commons is, as all such chambers must be, subject to sudden turns and bursts of feeling, because the members who compose it change from time to time. the pernicious result is perpetual in our legislation; many acts of parliament are medleys of different motives, because the majority which passed one set of its clauses is different from that which passed another set. but the greatest defect of the house of commons is that it has no leisure. the life of the house is the worst of all lives--a life of distracting routine. it has an amount of business brought before it such as no similar assembly ever has had. the british empire is a miscellaneous aggregate, and each bit of the aggregate brings its bit of business to the house of commons. it is india one day and jamaica the next; then again china, and then schleswig-holstein. our legislation touches on all subjects, because our country contains all ingredients. the mere questions which are asked of the ministers run over half human affairs; the private bill acts, the mere privilegia of our government--subordinate as they ought to be--probably give the house of commons more absolute work than the whole business, both national and private, of any other assembly which has ever sat. the whole scene is so encumbered with changing business, that it is hard to keep your head in it. whatever, too, may be the case hereafter, when a better system has been struck out, at present the house does all the work of legislation, all the detail, and all the clauses itself. one of the most helpless exhibitions of helpless ingenuity and wasted mind is a committee of the whole house on a bill of many clauses which eager enemies are trying to spoil, and various friends are trying to mend. an act of parliament is at least as complex as a marriage settlement; and it is made much as a settlement would be if it were left to the vote and settled by the major part of persons concerned, including the unborn children. there is an advocate for every interest, and every interest clamours for every advantage. the executive government by means of its disciplined forces, and the few invaluable members who sit and think, preserves some sort of unity. but the result is very imperfect. the best test of a machine is the work it turns out. let any one who knows what legal documents ought to be, read first a will he has just been making and then an act of parliament; he will certainly say, "i would have dismissed my attorney if he had done my business as the legislature has done the nation's business". while the house of commons is what it is, a good revising, regulating and retarding house would be a benefit of great magnitude. but is the house of lords such a chamber? does it do this work? this is almost an undiscussed question. the house of lords, for thirty years at least, has been in popular discussion an accepted matter. popular passion has not crossed the path, and no vivid imagination has been excited to clear the matter up. the house of lords has the greatest merit which such a chamber can have; it is possible. it is incredibly difficult to get a revising assembly, because it is difficult to find a class of respected revisers. a federal senate, a second house, which represents state unity, has this advantage; it embodies a feeling at the root of society--a feeling which is older than complicated politics, which is stronger a thousand times over than common political feelings--the local feeling. "my shirt," said the swiss state-right patriot, "is dearer to me than my coat." every state in the american union would feel that disrespect to the senate was disrespect to itself. accordingly, the senate is respected; whatever may be the merits or demerits of its action, it can act; it is real, independent, and efficient. but in common governments it is fatally difficult to make an unpopular entity powerful in a popular government. it is almost the same thing to say that the house of lords is independent. it would not be powerful, it would not be possible, unless it were known to be independent. the lords are in several respects more independent than the commons; their judgment may not be so good a judgment, but it is emphatically their own judgment. the house of lords, as a body, is accessible to no social bribe. and this, in our day, is no light matter. many members of the house of commons, who are to be influenced by no other manner of corruption, are much influenced by this its most insidious sort. the conductors of the press and the writers for it are worse--at least the more influential who come near the temptation; for "position," as they call it, for a certain intimacy with the aristocracy, some of them would do almost anything and say almost anything. but the lords are those who give social bribes, and not those who take them. they are above corruption because they are the corruptors. they have no constituency to fear or wheedle; they have the best means of forming a disinterested and cool judgment of any class in the country. they have, too, leisure to form it. they have no occupations to distract them which are worth the name. field sports are but playthings, though some lords put an englishman's seriousness into them. few englishmen can bury themselves in science or literature; and the aristocracy have less, perhaps, of that impetus than the middle classes. society is too correct and dull to be an occupation, as in other times and ages it has been. the aristocracy live in the fear of the middle classes--of the grocer and the merchant. they dare not frame a society of enjoyment as the french aristocracy once formed it. politics are the only occupation a peer has worth the name. he may pursue them undistractedly. the house of lords, besides independence to revise judicially and position to revise effectually, has leisure to revise intellectually. these are great merits: and, considering how difficult it is to get a good second chamber, and how much with our present first chamber we need a second, we may well be thankful for them. but we must not permit them to blind our eyes. those merits of the lords have faults close beside them which go far to make them useless. with its wealth, its place, and its leisure, the house of lords would, on the very surface of the matter, rule us far more than it does if it had not secret defects which hamper and weaken it. the first of these defects is hardly to be called secret, though, on the other hand, it is not well known. a severe though not unfriendly critic of our institutions said that "the cure for admiring the house of lords was to go and look at it"--to look at it not on a great party field-day, or at a time of parade, but in the ordinary transaction of business. there are perhaps ten peers in the house, possibly only six; three is the quorum for transacting business. a few more may dawdle in or not dawdle in: those are the principal speakers, the lawyers (a few years ago when lyndhurst, brougham, and campbell were in vigour, they were by far the predominant talkers) and a few statesmen whom every one knows. but the mass of the house is nothing. this is why orators trained in the commons detest to speak in the lords. lord chatham used to call it the "tapestry". the house of commons is a scene of life if ever there was a scene of life. every member in the throng, every atom in the medley, has his own objects (good or bad), his own purposes (great or petty); his own notions, such as they are, of what is; his own notions, such as they are, of what ought to be. there is a motley confluence of vigorous elements, but the result is one and good. there is a "feeling of the house," a "sense" of the house, and no one who knows anything of it can despise it. a very shrewd man of the world went so far as to say that "the house of commons has more sense than any one in it". but there is no such "sense" in the house of lords, because there is no life. the lower chamber is a chamber of eager politicians; the upper (to say the least) of not eager ones. this apathy is not, indeed, as great as the outside show would indicate. the committees of the lords (as is well known) do a great deal of work and do it very well. and such as it is, the apathy is very natural. a house composed of rich men who can vote by proxy without coming will not come very much.[5] but after every abatement the real indifference to their duties of most peers is a great defect, and the apparent indifference is a dangerous defect. as far as politics go there is profound truth in lord chesterfield's axiom, that "the world must judge of you by what you seem, not by what you are". the world knows what you seem; it does not know what you are. an assembly--a revising assembly especially--which does not assemble, which looks as if it does not care how it revises, is defective in a main political ingredient. it may be of use, but it will hardly convince mankind that it is so. [5] in accordance with a recent resolution of the house of lords proxies are now disused.--note to second edition. the next defect is even more serious: it affects not simply the apparent work of the house of lords but the real work. for a revising legislature, it is too uniformly made up. errors are of various kinds; but the constitution of the house of lords only guards against a single error--that of too quick change. the lords--leaving out a few lawyers and a few outcasts--are all landowners of more or less wealth. they all have more or less the opinions, the merits, the faults of that one class. they revise legislation, as far as they do revise it, exclusively according to the supposed interests, the predominant feelings, the inherited opinions, of that class. since the reform act, this uniformity of tendency has been very evident. the lords have felt--it would be harsh to say hostile, but still dubious, as to the new legislation. there was a spirit in it alien to their spirit, and which when they could they have tried to cast out. that spirit is what has been termed the "modern spirit". it is not easy to concentrate its essence in a phrase; it lives in our life, animates our actions, suggests our thoughts. we all know what it means, though it would take an essay to limit it and define it. to this the lords object; wherever it is concerned, they are not impartial revisers, but biassed revisers. this singleness of composition would be no fault; it would be, or might be, even a merit, if the criticism of the house of lords, though a suspicious criticism, were yet a criticism of great understanding. the characteristic legislation of every age must have characteristic defects; it is the outcome of a character, of necessity faulty and limited. it must mistake some kind of things; it must overlook some other. if we could get hold of a complemental critic, a critic who saw what the age did not see, and who saw rightly what the age mistook, we should have a critic of inestimable value. but is the house of lords that critic? can it be said that its unfriendliness to the legislation of the age is founded on a perception of what the age does not see, and a rectified perception of what the age does see? the most extreme partisan, the most warm admirer of the lords, if of fair and tempered mind, cannot say so. the evidence is too strong. on free trade, for example, no one can doubt that the lords--in opinion, in what they wished to do, and would have done, if they had acted on their own minds--were utterly wrong. this is the clearest test of the "modern spirit". it is easier here to be sure it is right than elsewhere. commerce is like war; its result is patent. do you make money or do you not make it? there is as little appeal from figures as from battle. now no one can doubt that england is a great deal better off because of free trade; that it has more money, and that its money is diffused more as we should wish it diffused. in the one case in which we can unanswerably test the modern spirit, it was right, and the dubious upper house--the house which would have rejected it, if possible--was wrong. there is another reason. the house of lords, being an hereditary chamber, cannot be of more than common ability. it may contain--it almost always has contained, it almost always will contain--extraordinary men. but its average born law-makers cannot be extraordinary. being a set of eldest sons picked out by chance and history, it cannot be very wise. it would be a standing miracle if such a chamber possessed a knowledge of its age superior to the other men of the age; if it possessed a superior and supplemental knowledge; if it descried what they did not discern, and saw truly that which they saw, indeed, but saw untruly. the difficulty goes deeper. the task of revising, of adequately revising the legislation of this age, is not only that which an aristocracy has no facility in doing, but one which it has a difficulty in doing. look at the statute book for 1865--the statutes at large for the year. you will find, not pieces of literature, not nice and subtle matters, but coarse matters, crude heaps of heavy business. they deal with trade, with finance, with statute-law reform, with common-law reform; they deal with various sorts of business, but with business always. and there is no educated human being less likely to know business, worse placed for knowing business than a young lord. business is really more agreeable than pleasure; it interests the whole mind, the aggregate nature of man more continuously, and more deeply. but it does not look as if it did. it is difficult to convince a young man, who can have the best of pleasure, that it will. a young lord just come into 30,000 pounds a year will not, as a rule, care much for the law of patents, for the law of "passing tolls," or the law of prisons. like hercules, he may choose virtue, but hardly hercules could choose business. he has everything to allure him from it, and nothing to allure him to it. and even if he wish to give himself to business, he has indifferent means. pleasure is near him, but business is far from him. few things are more amusing than the ideas of a well-intentioned young man, who is born out of the business world, but who wishes to take to business, about business. he has hardly a notion in what it consists. it really is the adjustment of certain particular means to equally certain particular ends. but hardly any young man destitute of experience is able to separate end and means. it seems to him a kind of mystery; and it is lucky if he do not think that the forms are the main part, and that the end is but secondary. there are plenty of business men falsely so called, who will advise him so. the subject seems a kind of maze. "what would you recommend me to read?" the nice youth asks; and it is impossible to explain to him that reading has nothing to do with it, that he has not yet the original ideas in his mind to read about; that administration is an art as painting is an art; and that no book can teach the practice of either. formerly this defect in the aristocracy was hidden by their own advantages. being the only class at ease for money and cultivated in mind they were without competition; and though they might not be, as a rule, and extraordinary ability excepted, excellent in state business, they were the best that could be had. even in old times, however, they sheltered themselves from the greater pressure of coarse work. they appointed a manager--a peel or a walpole, anything but an aristocrat in manner or in nature--to act for them or manage for them. but now a class is coming up trained to thought, full of money, and yet trained to business. as i write, two members of this class have been appointed to stations considerable in themselves, and sure to lead (if anything is sure in politics) to the cabinet and power. this is the class of highly-cultivated men of business who, after a few years, are able to leave business and begin ambition. as yet these men are few in public life, because they do not know their own strength. it is like columbus and the egg once again; a few original men will show it can be done, and then a crowd of common men will follow. these men know business partly from tradition, and this is much. there are university families--families who talk of fellowships, and who invest their children's ability in latin verses, as soon as they discover it; there used to be indian families of the same sort, and probably will be again when the competitive system has had time to foster a new breed. just so there are business families to whom all that concerns money, all that concerns administration, is as familiar as the air they breathe. all americans, it has been said, know business; it is in the air of their country. just so certain classes know business here; and a lord can hardly know it. it is as great a difficulty to learn business in a palace as it is to learn agriculture in a park. to one kind of business, indeed, this doctrine does not apply. there is one kind of business in which our aristocracy have still, and are likely to retain long, a certain advantage. this is the business of diplomacy. napoleon, who knew men well, would never, if he could help it, employ men of the revolution in missions to the old courts; he said, "they spoke to no one and no one spoke to them"; and so they sent home no information. the reason is obvious. the old-world diplomacy of europe was largely carried on in drawing-rooms, and, to a great extent, of necessity still is so. nations touch at their summits. it is always the highest class which travels most, knows most of foreign nations, has the least of the territorial sectarianism which calls itself patriotism, and is often thought to be so. even here, indeed, in england the new trade-class is in real merit equal to the aristocracy. their knowledge of foreign things is as great, and their contact with them often more. but, notwithstanding, the new race is not as serviceable for diplomacy as the old race. an ambassador is not simply an agent; he is also a spectacle. he is sent abroad for show as well as for substance; he is to represent the queen among foreign courts and foreign sovereigns. an aristocracy is in its nature better suited to such work; it is trained to the theatrical part of life; it is fit for that if it is fit for anything. but, with this exception, an aristocracy is necessarily inferior in business to the classes nearer business; and it is not, therefore, a suitable class, if we had our choice of classes, out of which to frame a chamber for revising matters of business. it is indeed a singular example how natural business is to the english race, that the house of lords works as well as it does. the common appearance of the "whole house" is a jest--a dangerous anomaly, which mr. bright will sometimes use; but a great deal of substantial work is done in "committees," and often very well done. the great majority of the peers do none of their appointed work, and could do none of it; but a minority--a minority never so large and never so earnest as in this age--do it, and do it well. still no one, who examines the matter without prejudice, can say that the work is done perfectly. in a country so rich in mind as england, far more intellectual power can be, and ought to be, applied to the revision of our laws. and not only does the house of lords do its work imperfectly, but often, at least, it does it timidly. being only a section of the nation, it is afraid of the nation. having been used for years and years, on the greatest matters to act contrary to its own judgment, it hardly knows when to act on that judgment. the depressing languor with which it damps an earnest young peer is at times ridiculous. "when the corn laws are gone, and the rotten boroughs, why tease about clause ix. in the bill to regulate cotton factories?" is the latent thought of many peers. a word from the leaders, from "the duke," or lord derby, or lord lyndhurst, will rouse on any matters the sleeping energies; but most lords are feeble and forlorn. these grave defects would have been at once lessened, and in the course of years nearly effaced, if the house of lords had not resisted the proposal of lord palmerston's first government to create peers for life. the expedient was almost perfect. the difficulty of reforming an old institution like the house of lords is necessarily great; its possibility rests on continuous caste and ancient deference. and if you begin to agitate about it, to bawl at meetings about it, that deference is gone, its particular charm lost, its reserved sanctity gone. but, by an odd fatality, there was in the recesses of the constitution an old prerogative which would have rendered agitation needless--which would have effected, without agitation, all that agitation could have effected. lord palmerston was--now that he is dead, and his memory can be calmly viewed--as firm a friend to an aristocracy, as thorough an aristocrat, as any in england; yet he proposed to use that power. if the house of lords had still been under the rule of the duke of wellington, perhaps they would have acquiesced. the duke would not indeed have reflected on all the considerations which a philosophic statesman would have set out before him; but he would have been brought right by one of his peculiarities. he disliked, above all things, to oppose the crown. at a great crisis, at the crisis of the corn laws, what he considered was not what other people were thinking of, the economical issue under discussion, the welfare of the country hanging in the balance, but the queen's ease. he thought the crown so superior a part in the constitution, that, even on vital occasions, he looked solely--or said he looked solely--to the momentary comfort of the present sovereign. he never was comfortable in opposing a conspicuous act of the crown. it is very likely that, if the duke had still been the president of the house of lords, they would have permitted the crown to prevail in its well-chosen scheme. but the duke was dead, and his authority--or some of it--had fallen to a very different person. lord lyndhurst had many great qualities: he had a splendid intellect--as great a faculty of finding truth as any one in his generation; but he had no love of truth. with this great faculty of finding truth, he was a believer in error--in what his own party now admit to be error--all his life through. he could have found the truth as a statesman just as he found it when a judge; but he never did find it. he never looked for it. he was a great partisan, and he applied a capacity of argument, and a faculty of intellectual argument rarely equalled, to support the tenets of his party. the proposal to create life peers was proposed by the antagonistic party--was at the moment likely to injure his own party. to him this was a great opportunity. the speech he delivered on that occasion lives in the memory of those who heard it. his eyes did not at that time let him read, so he repeated by memory, and quite accurately, all the black-letter authorities, bearing on the question. so great an intellectual effort has rarely been seen in an english assembly. but the result was deplorable. not by means of his black-letter authorities, but by means of his recognised authority and his vivid impression, he induced the house of lords to reject the proposition of the government. lord lyndhurst said the crown could not now create life peers, and so there are no life peers. the house of lords rejected the inestimable, the unprecedented opportunity of being tacitly reformed. such a chance does not come twice. the life peers who would have been then introduced would have been among the first men in the country. lord macaulay was to have been among the first; lord wensleydale--the most learned and not the least logical of our lawyers--to be the very first. thirty or forty such men, added judiciously and sparingly as years went on, would have given to the house of lords the very element which, as a criticising chamber, it needs so much. it would have given it critics. the most accomplished men in each department might then, without irrelevant considerations of family and of fortune, have been added to the chamber of review. the very element which was wanted to the house of lords was, as it were, by a constitutional providence, offered to the house of lords, and they refused it. by what species of effort that error can be repaired i cannot tell; but, unless it is repaired, the intellectual capacity can never be what it would have been, will never be what it ought to be, will never be sufficient for its work. another reform ought to have accompanied the creation of life peers. proxies ought to have been abolished. some time or other the slack attendance of the house of lords will destroy the house of lords. there are occasions in which appearances are realities, and this is one of them. the house of lords on most days looks so unlike what it ought to be, that most people will not believe it is what it ought to be. the attendance of considerate peers will, for obvious reasons, be larger when it can no longer be overpowered by the non-attendance, by the commissioned votes of inconsiderate peers. the abolition of proxies would have made the house of lords a real house; the addition of life peers would have made it a good house. the greater of these changes would have most materially aided the house of lords in the performance of its subsidiary functions. it always perhaps happens in a great nation, that certain bodies of sensible men posted prominently in its constitution, acquire functions, and usefully exercise functions, which at the outset, no one expected from them, and which do not identify themselves with their original design. this has happened to the house of lords especially. the most obvious instance is the judicial function. this is a function which no theorist would assign to a second chamber in a new constitution, and which is matter of accident in ours. gradually, indeed, the unfitness of the second chamber for judicial functions has made itself felt. under our present arrangements this function is not entrusted to the house of lords, but to a committee of the house of lords. on one occasion only, the trial of o'connell, the whole house, or some few in the whole house, wished to vote, and they were told they could not, or they would destroy the judicial prerogative. no one, indeed, would venture really to place the judicial function in the chance majorities of a fluctuating assembly: it is so by a sleepy theory; it is not so in living fact. as a legal question, too, it is a matter of grave doubt whether there ought to be two supreme courts in this country--the judicial committee of the privy council, and (what is in fact though not in name) the judicial committee of the house of lords. up to a very recent time, one committee might decide that a man was sane as to money, and the other committee might decide that he was insane as to land. this absurdity has been cured; but the error from which it arose has not been cured--the error of having two supreme courts, to both of which as time goes on, the same question is sure often enough to be submitted, and each of which is sure every now and then to decide it differently. i do not reckon the judicial function of the house of lords as one of its true subsidiary functions, first because it does not in fact exercise it, next because i wish to see it in appearance deprived of it. the supreme court of the english people ought to be a great conspicuous tribunal, ought to rule all other courts, ought to have no competitor, ought to bring our law into unity, ought not to be hidden beneath the robes of a legislative assembly. the real subsidiary functions of the house of lords are, unlike its judicial functions, very analogous to its substantial nature. the first is the faculty of criticising the executive. an assembly in which the mass of the members have nothing to lose, where most have nothing to gain, where every one has a social position firmly fixed, where no one has a constituency, where hardly any one cares for the minister of the day, is the very assembly in which to look for, from which to expect, independent criticism. and in matter of fact we find it. the criticism of the acts of late administrations by lord grey has been admirable. but such criticism, to have its full value, should be many-sided. every man of great ability puts his own mark on his own criticism; it will be full of thought and feeling, but then it is of idiosyncratic thought and feeling. we want many critics of ability and knowledge in the upper house--not equal to lord grey, for they would be hard to find--but like lord grey. they should resemble him in impartiality; they should resemble him in clearness; they should most of all resemble him in taking a supplemental view of a subject. there is an actor's view of a subject, which (i speak of mature and discussed action--of cabinet action) is nearly sure to include everything old and new--everything ascertained and determinate. but there is also a bystander's view which is likely to omit some one or more of these old and certain elements, but also to contain some new or distant matter, which the absorbed and occupied actor could not see. there ought to be many life peers in our secondary chamber capable of giving us this higher criticism. i am afraid we shall not soon see them, but as a first step we should learn to wish for them. the second subsidiary action of the house of lords is even more important. taking the house of commons, not after possible but most unlikely improvements, but in matter of fact and as it stands, it is overwhelmed with work. the task of managing it falls upon the cabinet, and that task is very hard. every member of the cabinet in the commons has to "attend the house"; to contribute by his votes, if not by his voice, to the management of the house. even in so small a matter as the education department, mr. lowe, a consummate observer, spoke of the desirability of finding a chief "not exposed to the prodigious labour of attending the house of commons". it is all but necessary that certain members of the cabinet should be exempt from its toil, and untouched by its excitement. but it is also necessary that they should have the power of explaining their views to the nation; of being heard as other people are heard. there are various plans for so doing, which i may discuss a little in speaking of the house of commons. but so much is evident: the house of lords, for its own members, attains this object; it gives them a voice, it gives them what no competing plan does give them--position. the leisured members of the cabinet speak in the lords with authority and power. they are not administrators with a right to speech--clerks (as is sometimes suggested) brought down to lecture a house, but not to vote in it; but they are the equals of those they speak to; they speak as they like, and reply as they choose; they address the house, not with the "bated breath" of subordinates, but with the force and dignity of sure rank. life peers would enable us to use this faculty of our constitution more freely and more variously. it would give us a larger command of able leisure; it would improve the lords as a political pulpit, for it would enlarge the list of its select preachers. the danger of the house of commons is, perhaps, that it will be reformed too rashly; the danger of the house of lords certainly is, that it may never be reformed. nobody asks that it should be so; it is quite safe against rough destruction, but it is not safe against inward decay. it may lose its veto as the crown has lost its veto. if most of its members neglect their duties, if all its members continue to be of one class, and that not quite the best; if its doors are shut against genius that cannot found a family, and ability which has not 5000 pounds a year, its power will be less year by year, and at last be gone, as so much kingly power is gone--no one knows how. its danger is not in assassination, but atrophy; not abolition, but decline. no. v. the house of commons. [footnote: i reprint this chapter substantially as it was first written. it is too soon, as i have explained in the introduction, to say what changes the late reform act will make in the house of commons.] the dignified aspect of the house of commons is altogether secondary to its efficient use. it is dignified: in a government in which the most prominent parts are good because they are very stately, any prominent part, to be good at all, must be somewhat stately. the human imagination exacts keeping in government as much as in art; it will not be at all influenced by institutions which do not match with those by which it is principally influenced. the house of commons needs to be impressive, and impressive it is: but its use resides not in its appearance, but in its reality. its office is not to win power by awing mankind, but to use power in governing mankind. the main function of the house of commons is one which we know quite well, though our common constitutional speech does not recognise it. the house of commons is an electoral chamber; it is the assembly which chooses our president. washington and his fellow-politicians contrived an electoral college, to be composed (as was hoped) of the wisest people in the nation, which, after due deliberation, was to choose for president the wisest man in the nation. but that college is a sham; it has no independence and no life. no one knows, or cares to know, who its members are. they never discuss, and never deliberate. they were chosen to vote that mr. lincoln be president, or that mr. breckenridge be president; they do so vote, and they go home. but our house of commons is a real choosing body; it elects the people it likes. and it dismisses whom it likes too. no matter that a few months since it was chosen to support lord aberdeen or lord palmerston; upon a sudden occasion it ousts the statesman to whom it at first adhered, and selects an opposite statesman whom it at first rejected. doubtless in such cases there is a tacit reference to probable public opinion; but certainly also there is much free will in the judgment of the commons. the house only goes where it thinks in the end the nation will follow; but it takes its chance of the nation following or not following; it assumes the initiative, and acts upon its discretion or its caprice. when the american nation has chosen its president, its virtue goes out of it, and out of the transmissive college through which it chooses. but because the house of commons has the power of dismissal in addition to the power of election, its relations to the premier are incessant. they guide him and he leads them. he is to them what they are to the nation. he only goes where he believes they will go after him. but he has to take the lead; he must choose his direction, and begin the journey. nor must he flinch. a good horse likes to feel the rider's bit; and a great deliberative assembly likes to feel that it is under worthy guidance. a minister who succumbs to the house,--who ostentatiously seeks its pleasure,--who does not try to regulate it,--who will not boldly point out plain errors to it, seldom thrives. the great leaders of parliament have varied much, but they have all had a certain firmness. a great assembly is as soon spoiled by over-indulgence as a little child. the whole life of english politics is the action and reaction between the ministry and the parliament. the appointees strive to guide, and the appointers surge under the guidance. the elective is now the most important function of the house of commons. it is most desirable to insist, and be tedious, on this, because our tradition ignores it. at the end of half the sessions of parliament, you will read in the newspapers, and you will hear even from those who have looked close at the matter and should know better, "parliament has done nothing this session. some things were promised in the queen's speech, but they were only little things; and most of them have not passed." lord lyndhurst used for years to recount the small outcomings of legislative achievement; and yet those were the days of the first whig governments, who had more to do in legislation, and did more, than any government. the true answer to such harangues as lord lyndhurst's by a minister should have been in the first person. he should have said firmly, "parliament has maintained me, and that was its greatest duty; parliament has carried on what, in the language of traditional respect, we call the queen's government; it has maintained what wisely or unwisely it deemed the best executive of the english nation". the second function of the house of commons is what i may call an expressive function. it is its office to express the mind of the english people on all matters which come before it. whether it does so well or ill i shall discuss presently. the third function of parliament is what i may call--preserving a sort of technicality even in familiar matters for the sake of distinctness--the teaching function. a great and open council of considerable men cannot be placed in the middle of a society without altering that society. it ought to alter it for the better. it ought to teach the nation what it does not know. how far the house of commons can so teach, and how far it does so teach, are matters for subsequent discussion. fourthly, the house of commons has what may be called an informing function--a function which though in its present form quite modern is singularly analogous to a mediaeval function. in old times one office of the house of commons was to inform the sovereign what was wrong. it laid before the crown the grievances and complaints of particular interests. since the publication of the parliamentary debates a corresponding office of parliament is to lay these same grievances, these same complaints, before the nation, which is the present sovereign. the nation needs it quite as much as the king ever needed it. a free people is indeed mostly fair, liberty practises men in a give-and-take, which is the rough essence of justice. the english people, possibly even above other free nations, is fair. but a free nation rarely can be--and the english nation is not--quick of apprehension. it only comprehends what is familiar to it--what comes into its own experience, what squares with its own thoughts. "i never heard of such a thing in my life," the middle-class englishman says, and he thinks he so refutes an argument. the common disputant cannot say in reply that his experience is but limited, and that the assertion may be true, though he had never met with anything at all like it. but a great debate in parliament does bring home something of this feeling. any notion, any creed, any feeling, any grievance which can get a decent number of english members to stand up for it, is felt by almost all englishmen to be perhaps a false and pernicious opinion, but at any rate possible--an opinion within the intellectual sphere, an opinion to be reckoned with. and it is an immense achievement. practical diplomatists say that a free government is harder to deal with than a despotic government; you may be able to get the despot to hear the other side; his ministers, men of trained intelligence, will be sure to know what makes against them; and they may tell him. but a free nation never hears any side save its own. the newspapers only repeat the side their purchasers like: the favourable arguments are set out, elaborated, illustrated; the adverse arguments maimed, misstated, confused. the worst judge, they say, is a deaf judge; the most dull government is a free government on matters its ruling classes will not hear. i am disposed to reckon it as the second function of parliament in point of importance, that to some extent it makes us hear what otherwise we should not. lastly, there is the function of legislation, of which of course it would be preposterous to deny the great importance, and which i only deny to be as important as the executive management of the whole state, or the political education given by parliament to the whole nation. there are, i allow, seasons when legislation is more important than either of these. the nation may be misfitted with its laws, and need to change them: some particular corn law may hurt all industry, and it may be worth a thousand administrative blunders to get rid of it. but generally the laws of a nation suit its life; special adaptations of them are but subordinate; the administration and conduct of that life is the matter which presses most. nevertheless, the statute-book of every great nation yearly contains many important new laws, and the english statute-book does so above any. an immense mass, indeed, of the legislation is not, in the proper language of jurisprudence, legislation at all. a law is a general command applicable to many cases. the "special acts" which crowd the statute-book and weary parliamentary committees are applicable to one case only. they do not lay down rules according to which railways shall be made, they enact that such a railway shall be made from this place to that place, and they have no bearing upon any other transaction. but after every deduction and abatement, the annual legislation of parliament is a result of singular importance; were it not so, it could not be, as it often is considered, the sole result of its annual assembling. some persons will perhaps think that i ought to enumerate a sixth function of the house of commons--a financial function. but i do not consider that, upon broad principle, and omitting legal technicalities, the house of commons has any special function with regard to financial different from its functions with respect to other legislation. it is to rule in both, and to rule in both through the cabinet. financial legislation is of necessity a yearly recurring legislation; but frequency of occurrence does not indicate a diversity of nature or compel an antagonism of treatment. in truth, the principal peculiarity of the house of commons in financial affairs is nowadays not a special privilege, but an exceptional disability. on common subjects any member can propose anything, but not on money--the minister only can propose to tax the people. this principle is commonly involved in mediaeval metaphysics as to the prerogative of the crown, but it is as useful in the nineteenth century as in the fourteenth, and rests on as sure a principle. the house of commons--now that it is the true sovereign, and appoints the real executive--has long ceased to be the checking, sparing, economical body it once was. it now is more apt to spend money than the minister of the day. i have heard a very experienced financier say, "if you want to raise a certain cheer in the house of commons make a general panegyric on economy; if you want to invite a sure defeat, propose a particular saving". the process is simple. every expenditure of public money has some apparent public object; those who wish to spend the money expatiate on that object; they say, "what is 50,000 pounds to this great country? is this a time for cheese-paring objection? our industry was never so productive; our resources never so immense. what is 50,000 pounds in comparison with this great national interest?" the members who are for the expenditure always come down; perhaps a constituent or a friend who will profit by the outlay, or is keen on the object, has asked them to attend; at any rate, there is a popular vote to be given, on which the newspapers--always philanthropic, and sometimes talked over--will be sure to make enconiums. the members against the expenditure rarely come down of themselves; why should they become unpopular without reason? the object seems decent; many of its advocates are certainly sincere: a hostile vote will make enemies, and be censured by the journals. if there were not some check, the "people's house" would soon outrun the people's money. that check is the responsibility of the cabinet for the national finance. if any one could propose a tax, they might let the house spend it as it would, and wash their hands of the matter; but now, for whatever expenditure is sanctioned--even when it is sanctioned against the ministry's wish--the ministry must find the money. accordingly, they have the strongest motive to oppose extra outlay. they will have to pay the bill for it; they will have to impose taxation, which is always disagreeable, or suggest loans, which, under ordinary circumstances, are shameful. the ministry is (so to speak) the bread-winner of the political family, and has to meet the cost of philanthropy and glory, just as the head of a family has to pay for the charities of his wife and the toilette of his daughters. in truth, when a cabinet is made the sole executive, it follows it must have the sole financial charge, for all action costs money, all policy depends on money, and it is in adjusting the relative goodness of action and policies that the executive is employed. from a consideration of these functions, it follows that we are ruled by the house of commons; we are, indeed, so used to be so ruled, that it does not seem to be at all strange. but of all odd forms of government, the oddest really is government by a public meeting. here are 658 persons, collected from all parts of england, different in nature, different in interests, different in look, and language. if we think what an empire the english is, how various are its components, how incessant its concerns, how immersed in history its policy; if we think what a vast information, what a nice discretion, what a consistent will ought to mark the rulers of that empire, we shall be surprised when we see them. we see a changing body of miscellaneous persons, sometimes few, sometimes many, never the same for an hour; sometimes excited, but mostly dull and half weary--impatient of eloquence, catching at any joke as an alleviation. these are the persons who rule the british empire--who rule england, who rule scotland, who rule ireland, who rule a great deal of asia, who rule a great deal of polynesia, who rule a great deal of america, and scattered fragments everywhere. paley said many shrewd things, but he never said a better thing than that it was much harder to make men see a difficulty than comprehend the explanation of it. the key to the difficulties of most discussed and unsettled questions is commonly in their undiscussed parts: they are like the background of a picture, which looks obvious, easy, just what any one might have painted, but which, in fact, sets the figures in their right position, chastens them, and makes them what they are. nobody will understand parliament government who fancies it an easy thing, a natural thing, a thing not needing explanation. you have not a perception of the first elements in this matter till you know that government by a club is a standing wonder. there has been a capital illustration lately how helpless many english gentlemen are when called together on a sudden. the government, rightly or wrongly, thought fit to entrust the quarter-sessions of each county with the duty of combating its cattle-plague; but the scene in most "shire halls" was unsatisfactory. there was the greatest difficulty in getting, not only a right decision, but any decision, i saw one myself which went thus. the chairman proposed a very complex resolution, in which there was much which every one liked, and much which every one disliked, though, of course, the favourite parts of some were the objectionable parts to others. this resolution got, so to say, wedged in the meeting; everybody suggested amendments; one amendment was carried which none were satisfied with, and so the matter stood over. it is a saying in england, "a big meeting never does anything"; and yet we are governed by the house of commons--by "a big meeting". it may be said that the house of commons does not rule, it only elects the rulers. but there must be something special about it to enable it to do that. suppose the cabinet were elected by a london club, what confusion there would be, what writing and answering! "will you speak to so-and-so, and ask him to vote for my man?" would be heard on every side. how the wife of a. and the wife of b. would plot to confound the wife of c. whether the club elected under the dignified shadow of a queen, or without the shadow, would hardly matter at all; if the substantial choice was in them, the confusion and intrigue would be there too. i propose to begin this paper by asking, not why the house of commons governs well? but the fundamental--almost unasked question--how the house of commons comes to be able to govern at all? the house of commons can do work which the quarter-sessions or clubs cannot do, because it is an organised body, while quarter-sessions and clubs are unorganised. two of the greatest orators in england--lord brougham and lord bolingbroke--spent much eloquence in attacking party government. bolingbroke probably knew what he was doing; he was a consistent opponent of the power of the commons; he wished to attack them in a vital part. but lord brougham does not know; he proposes to amend parliamentary government by striking out the very elements which make parliamentary government possible. at present the majority of parliament obey certain leaders; what those leaders propose they support, what those leaders reject they reject. an old secretary of the treasury used to say, "this is a bad case, an indefensible case. we must apply our majority to this question." that secretary lived fifty years ago, before the reform bill, when majorities were very blind, and very "applicable". nowadays, the power of leaders over their followers is strictly and wisely limited: they can take their followers but a little way, and that only in certain directions. yet still there are leaders and followers. on the conservative side of the house there are vestiges of the despotic leadership even now. a cynical politician is said to have watched the long row of county members, so fresh and respectable-looking, and muttered, "by jove, they are the finest brute votes in europe!" but all satire apart, the principle of parliament is obedience to leaders. change your leader if you will, take another if you will, but obey no. 1 while you serve no. 1, and obey no. 2 when you have gone over to no. 2. the penalty of not doing so, is the penalty of impotence. it is not that you will not be able to do any good, but you will not be able to do anything at all. if everybody does what he thinks right, there will be 657 amendments to every motion, and none of them will be carried or the motion either. the moment, indeed, that we distinctly conceive that the house of commons is mainly and above all things an elective assembly, we at once perceive that party is of its essence. there never was an election without a party. you cannot get a child into an asylum without a combination. at such places you may see "vote for orphan a." upon a placard, and "vote for orphan b. (also an idiot!!!)" upon a banner, and the party of each is busy about its placard and banner. what is true at such minor and momentary elections must be much more true in a great and constant election of rulers. the house of commons lives in a state of perpetual potential choice; at any moment it can choose a ruler and dismiss a ruler. and therefore party is inherent in it, is bone of its bone, and breath of its breath. secondly, though the leaders of party no longer have the vast patronage of the last century with which to bribe, they can coerce by a threat far more potent than any allurement--they can dissolve. this is the secret which keeps parties together. mr. cobden most justly said: "he had never been able to discover what was the proper moment, according to members of parliament, for a dissolution. he had heard them say they were ready to vote for everything else, but he had never heard them say they were ready to vote for that." efficiency in an assembly requires a solid mass of steady votes; and these are collected by a deferential attachment to particular men, or by a belief in the principles those men represent, and they are maintained by fear of those men--by the fear that if you vote against them, you may yourself soon not have a vote at all. thirdly, it may seem odd to say so, just after inculcating that party organisation is the vital principle of representative government, but that organisation is permanently efficient, because it is not composed of warm partisans. the body is eager, but the atoms are cool. if it were otherwise, parliamentary government would become the worst of governments--a sectarian government. the party in power would go all the lengths their orators proposed--all that their formulae enjoined, as far as they had ever said they would go. but the partisans of the english parliament are not of such a temper. they are whigs, or radicals, or tories, but they are much else too. they are common englishmen, and, as father newman complains, "hard to be worked up to the dogmatic level". they are not eager to press the tenets of their party to impossible conclusions. on the contrary, the way to lead them--the best and acknowledged way--is to affect a studied and illogical moderation. you may hear men say, "without committing myself to the tenet that 3 + 2 make 5, though i am free to admit that the honourable member for bradford has advanced very grave arguments in behalf of it, i think i may, with the permission of the committee, assume that 2 + 3 do not make 4, which will be a sufficient basis for the important propositions which i shall venture to submit on the present occasion." this language is very suitable to the greater part of the house of commons. most men of business love a sort of twilight. they have lived all their lives in an atmosphere of probabilities and of doubt, where nothing is very clear, where there are some chances for many events, where there is much to be said for several courses, where nevertheless one course must be determinedly chosen and fixedly adhered to. they like to hear arguments suited to this intellectual haze. so far from caution or hesitation in the statement of the argument striking them as an indication of imbecility, it seems to them a sign of practicality. they got rich themselves by transactions of which they could not have stated the argumentative ground--and all they ask for is a distinct though moderate conclusion, that they can repeat when asked; something which they feel not to be abstract argument, but abstract argument diluted and dissolved in real life. "there seem to me," an impatient young man once said, "to be no stay in peel's arguments." and that was why sir robert peel was the best leader of the commons in our time; we like to have the rigidity taken out of an argument, and the substance left. nor indeed, under our system of government, are the leaders themselves of the house of commons, for the most part, eager to carry party conclusions too far. they are in contact with reality. an opposition, on coming into power, is often like a speculative merchant whose bills become due. ministers have to make good their promises, and they find a difficulty in so doing. they have said the state of things is so and so, and if you give us the power we will do thus and thus. but when they come to handle the official documents, to converse with the permanent under-secretary--familiar with disagreeable facts, and though in manner most respectful, yet most imperturbable in opinion--very soon doubts intervene. of course, something must be done; the speculative merchant cannot forget his bills; the late opposition cannot, in office, forget those sentences which terrible admirers in the country still quote. but just as the merchant asks his debtor, "could you not take a bill at four months?" so the new minister says to the permanent under-secretary, "could you not suggest a middle course? i am of course not bound by mere sentences used in debate; i have never been accused of letting a false ambition of consistency warp my conduct; but," etc., etc. and the end always is that a middle course is devised which looks as much as possible like what was suggested in opposition, but which is as much as possible what patent facts--facts which seem to live in the office, so teasing and unceasing are they--prove ought to be done. of all modes of enforcing moderation on a party, the best is to contrive that the members of that party shall be intrinsically moderate, careful, and almost shrinking men; and the next best to contrive that the leaders of the party, who have protested most in its behalf, shall be placed in the closest contact with the actual world. our english system contains both contrivances; it makes party government permanent and possible in the sole way in which it can be so, by making it mild. but these expedients, though they sufficiently remove the defects which make a common club or quarter-sessions impotent, would not enable the house of commons to govern england. a representative public meeting is subject to a defect over and above those of other public meetings. it may not be independent. the constituencies may not let it alone. but if they do not, all the checks which have been enumerated upon the evils of a party organisation would be futile. the feeling of a constituency is the feeling of a dominant party, and that feeling is elicited, stimulated, sometimes even manufactured by the local political agent. such an opinion could not be moderate; could not be subject to effectual discussion; could not be in close contact with pressing facts; could not be framed under a chastening sense of near responsibility; could not be formed as those form their opinions who have to act upon them. constituency government is the precise opposite of parliamentary government. it is the government of immoderate persons far from the scene of action, instead of the government of moderate persons close to the scene of action; it is the judgment of persons judging in the last resort and without a penalty, in lieu of persons judging in fear of a dissolution, and ever conscious that they are subject to an appeal. most persons would admit these conditions of parliamentary government when they read them, but two at least of the most prominent ideas in the public mind are inconsistent with them. the scheme to which the arguments of our demagogues distinctly tend, and the scheme to which the predilections of some most eminent philosophers cleave, are both so. they would not only make parliamentary government work ill, but they would prevent its working at all; they would not render it bad, for they would make it impossible. the first of these is the ultra-democratic theory. this theory demands that every man of twenty-one years of age (if not every woman too) should have an equal vote in electing parliament. suppose that last year there were twelve million adult males in england. upon this theory each man is to have one twelve-millionth share in electing a parliament; the rich and wise are not to have, by explicit law, more votes than the poor and stupid; nor are any latent contrivances to give them an influence equivalent to more votes. the machinery for carrying out such a plan is very easy. at each census the country ought to be divided into 658 electoral districts, in each of which the number of adult males should be the same; and these districts ought to be the only constituencies, and elect the whole parliament. but if the above prerequisites are needful for parliamentary government, that parliament would not work. such a parliament could not be composed of moderate men. the electoral districts would be, some of them, in purely agricultural places, and in these the parson and the squire would have almost unlimited power. they would be able to drive or send to the poll an entire labouring population. these districts would return an unmixed squirearchy. the scattered small towns which now send so many members to parliament, would be lost in the clownish mass; their votes would send to parliament no distinct members. the agricultural part of england would choose its representatives from quarter-sessions exclusively. on the other hand a large part of the constituencies would be town districts, and these would send up persons representing the beliefs or unbeliefs of the lowest classes in their towns. they would, perhaps, be divided between the genuine representatives of the artisans--not possibly of the best of the artisans, who are a select and intellectual class, but of the common order of workpeople--and the merely pretended members for that class whom i may call the members for the public-houses. in all big towns in which there is electioneering these houses are the centres of illicit corruption and illicit management. there are pretty good records of what that corruption and management are, but there is no need to describe them here. everybody will understand what sort of things i mean, and the kind of unprincipled members that are returned by them. our new parliament, therefore, would be made up of two sorts of representatives from the town lowest class, and one sort of representatives from the agricultural lowest class. the genuine representatives of the country would be men of one marked sort, and the genuine representatives for the county men of another marked sort, but very opposite: one would have the prejudices of town artisans, and the other the prejudices of county magistrates. each class would speak a language of its own; each would be unintelligible to the other; and the only thriving class would be the immoral representatives, who were chosen by corrupt machination, and who would probably get a good profit on the capital they laid out in that corruption. if it be true that a parliamentary government is possible only when the overwhelming majority of the representatives are men essentially moderate, of no marked varieties, free from class prejudices, this ultra-democratic parliament could not maintain that government, for its members would be remarkable for two sorts of moral violence and one sort of immoral. i do not for a moment rank the scheme of mr. hare with the scheme of the ultra-democrats. one can hardly help having a feeling of romance about it. the world seems growing young when grave old lawyers and mature philosophers propose a scheme promising so much. it is from these classes that young men suffer commonly the chilling demonstration that their fine plans are opposed to rooted obstacles, that they are repetitions of other plans which failed long ago, and that we must be content with the very moderate results of tried machinery. but mr. hare and mr. mill offer as the effect of their new scheme results as large and improvements as interesting as a young enthusiast ever promised to himself in his happiest mood. i do not give any weight to the supposed impracticability of mr. hare's scheme because it is new. of course it cannot be put in practice till it is old. a great change of this sort happily cannot be sudden; a free people cannot be confused by new institutions which they do not understand, for they will not adopt them till they understand them. but if mr. hare's plan would accomplish what its friends say, or half what they say, it would be worth working for, if it were not adopted till the year 1966. we ought incessantly to popularise the principle by writing; and, what is better than writing, small preliminary bits of experiment. there is so much that is wearisome and detestable in all other election machineries, that i well understand, and wish i could share, the sense of relief with which the believers in this scheme throw aside all their trammels, and look to an almost ideal future when this captivating plan is carried. mr. hare's scheme cannot be satisfactorily discussed in the elaborate form in which he presents it. no common person readily apprehends all the details in which, with loving care, he has embodied it. he was so anxious to prove what could be done, that he has confused most people as to what it is. i have heard a man say, "he never could remember it two days running". but the difficulty which i feel is fundamental, and wholly independent of detail. there are two modes in which constituencies may be made. first, the law may make them, as in england and almost everywhere: the law may say such and such qualifications shall give a vote for constituency x; those who have that qualification shall be constituency x. these are what we may call compulsory constituencies, and we know all about them. or, secondly, the law may leave the electors themselves to make them. the law may say all the adult males of a country shall vote, or those males who can read and write, or those who have 50 pounds a year, or any persons any way defined, and then leave those voters to group themselves as they like. suppose there were 658,000 voters to elect the house of commons; it is possible for the legislature to say, "we do not care how you combine. on a given day let each set of persons give notice in what group they mean to vote; if every voter gives notice, and every one looks to make the most of his vote, each group will have just 1000. but the law shall not make this necessary--it shall take the 658 most numerous groups, no matter whether they have 2000, or 1000, or 900, or 800 votes--the most numerous groups, whatever their number may be; and these shall be the constituencies of the nation." these are voluntary constituencies, if i may so call them; the simplest kind of voluntary constituencies. mr. hare proposes a far more complex kind; but to show the merits and demerits of the voluntary principle the simplest form is much the best. the temptation to that principle is very plain. under the compulsory form of constituency the votes of the minorities are thrown away. in the city of london, now, there are many tories, but all the members are whigs; every london tory, therefore, is by law and principle misrepresented: his city sends to parliament not the member whom he wished to have, but the member he wished not to have. but upon the voluntary system the london tories, who are far more than 1000 in number, may combine; they may make a constituency, and return a member. in many existing constituencies the disfranchisement of minorities is hopeless and chronic. i have myself had a vote for an agricultural county for twenty years, and i am a liberal; but two tories have always been returned, and all my life will be returned. as matters now stand, my vote is of no use. but if i could combine with 1000 other liberals in that and other conservative counties, we might choose a liberal member. again, this plan gets rid of all our difficulties as to the size of constituencies. it is said to be unreasonable that liverpool should return only the same number of members as king's lynn or lyme regis; but upon the voluntary plan, liverpool could come down to king's lynn. the liberal minority in king's lynn could communicate with the liberal minority in liverpool, and make up 1000; and so everywhere. the numbers of popular places would gain what is called their legitimate advantage; they would, when constituencies are voluntarily made, be able to make, and be willing to make the greatest number of constituencies. again, the admirers of a great man could make a worthy constituency for him. as it is, mr. mill was returned by the electors of westminster; and they have never, since they had members, done themselves so great an honour. but what did the electors of westminster know of mr. mill? what fraction of his mind could be imagined by any percentage of their minds? a great deal of his genius most of them would not like. they meant to do homage to mental ability, but it was the worship of an unknown god--if ever there was such a thing in this world. but upon the voluntary plan, one thousand out of the many thousand students of mr. mill's book could have made an appreciating constituency for him. i could reckon other advantages, but i have to object to the scheme, not to recommend it. what are the counterweights which overpower these merits? i reply that the voluntary composition of constituencies appears to me inconsistent with the necessary prerequisites of parliamentary government as they have been just laid down. under the voluntary system, the crisis of politics is not the election of the member, but the making the constituency. president-making is already a trade in america, and constituency-making would, under the voluntary plan, be a trade here. every party would have a numerical problem to solve. the leaders would say, "we have 350,000 votes, we must take care to have 350 members"; and the only way to obtain them is to organise. a man who wanted to compose part of a liberal constituency must not himself hunt for 1000 other liberals; if he did, after writing 10000 letters, he would probably find he was making part of a constituency of 100, all whose votes would be thrown away, the constituency being too small to be reckoned. such a liberal must write to the great registration association in parliament street; he must communicate with its able managers, and they would soon use his vote for him. they would say, "sir, you are late; mr. gladstone, sir, is full. he got his 1000 last year. most of the gentlemen you read of in the papers are full. as soon as a gentleman makes a nice speech, we get a heap of letters to say, 'make us into that gentleman's constituency'. but we cannot do that. here is our list. if you do not want to throw your vote away, you must be guided by us: here are three very satisfactory gentlemen (and one is an honourable): you may vote for either of these, and we will write your name down; but if you go voting wildly, you'll be thrown out altogether." the evident result of this organisation would be the return of party men mainly. the member-makers would look, not for independence, but for subservience--and they could hardly be blamed for so doing. they are agents for the liberal party; and, as such, they should be guided by what they take to be the wishes of their principal. the mass of the liberal party wishes measure a, measure b, measure c. the managers of the registration--the skilled manipulators--are busy men. they would say, "sir, here is our card; if you want to get into parliament on our side, you must go for that card; it was drawn up by mr. lloyd; he used to be engaged on railways, but since they passed this new voting plan, we get him to attend to us; it is a sound card; stick to that and you will be right". upon this (in theory) voluntary plan, you would get together a set of members bound hard and fast with party bands and fetters, infinitely tighter than any members now. whoever hopes anything from desultory popular action if matched against systematised popular action, should consider the way in which the american president is chosen. the plan was that the citizens at large should vote for the statesman they liked best. but no one does anything of the sort. they vote for the ticket made by "the caucus," and the caucus is a sort of representative meeting which sits voting and voting till they have cut out all the known men against whom much is to be said, and agreed on some unknown man against whom there is nothing known, and therefore nothing to be alleged. caucuses, or their equivalent, would be far worse here in constituency-making than there in president-making, because on great occasions the american nation can fix on some one great man whom it knows, but the english nation could not fix on 658 great men and choose them. it does not know so many, and if it did, would go wrong in the difficulties of the manipulation. but though a common voter could only be ranged in an effectual constituency, and a common candidate only reach a constituency by obeying the orders of the political election-contrivers upon his side, certain voters and certain members would be quite independent of both. there are organisations in this country which would soon make a set of constituencies for themselves. every chapel would be an office for vote-transferring before the plan had been known three months. the church would be much slower in learning it and much less handy in using it; but would learn. at present the dissenters are a most energetic and valuable component of the liberal party; but under the voluntary plan they would not be a component--they would be a separate, independent element. we now propose to group boroughs; but then they would combine chapels. there would be a member for the baptist congregation of tavistock, cum totnes, cum, etc., etc. the full force of this cannot be appreciated except by referring to the former proof that the mass of a parliament ought to be men of moderate sentiments, or they will elect an immoderate ministry, and enact violent laws. but upon the plan suggested, the house would be made up of party politicians selected by a party committee, chained to that committee and pledged to party violence, and of characteristic, and therefore immoderate representatives, for every "ism" in all england. instead of a deliberate assembly of moderate and judicious men, we should have a various compound of all sorts of violence. i may seem to be drawing a caricature, but i have not reached the worst. bad as these members would be, if they were left to themselves--if, in a free parliament, they were confronted with the perils of government, close responsibility might improve them and make them tolerable. but they would not be left to themselves. a voluntary constituency will nearly always be a despotic constituency. even in the best case, where a set of earnest men choose a member to expound their earnestness, they will look after him to see that he does expound it. the members will be like the minister of a dissenting congregation. that congregation is collected by a unity of sentiment in doctrine a, and the preacher is to preach doctrine a; if he does not, he is dismissed. at present the member is free because the constituency is not in earnest; no constituency has an acute, accurate doctrinal creed in politics. the law made the constituencies by geographical divisions; and they are not bound together by close unity of belief. they have vague preferences for particular doctrines; and that is all. but a voluntary constituency would be a church with tenets; it would make its representative the messenger of its mandates, and the delegate of its determinations. as in the case of a dissenting congregation, one great minister sometimes rules it, while ninety-nine ministers in the hundred are ruled by it, so here one noted man would rule his electors, but the electors would rule all the others. thus, the members for a good voluntary constituency would be hopelessly enslaved, because of its goodness; but the members for a bad voluntary constituency would be yet more enslaved because of its badness. the makers of these constituencies would keep the despotism in their own hands. in america there is a division of politicians into wire-pullers and blowers; under the voluntary system the member of parliament would be the only momentary mouth-piece--the impotent blower; while the constituency-maker would be the latent wire-puller--the constant autocrat. he would write to gentlemen in parliament, and say, "you were elected upon 'the liberal ticket'; and if you deviate from that ticket you cannot be chosen again". and there would be no appeal for a common-minded man. he is no more likely to make a constituency for himself than a mole is likely to make a planet. it may indeed be said that against a septennial parliament such machinations would be powerless; that a member elected for seven years might defy the remonstrances of an earnest constituency, or the imprecations of the latent manipulators. but after the voluntary composition of constituencies, there would soon be but short-lived parliaments. earnest constituencies would exact frequent elections; they would not like to part with their virtue for a long period; it would anger them to see it used contrary to their wishes, amid circumstances which at the election no one thought of. a seven years' parliament is often chosen in one political period, lasts through a second, and is dissolved in a third. a constituency collected by law and on compulsion endures this change because it has no collective earnestness; it does not mind seeing the power it gave used in a manner that it could not have foreseen. but a self-formed constituency of eager opinions, a missionary constituency, so to speak, would object; it would think it its bounden duty to object; and the crafty manipulators, though they said nothing, in silence would object still more. the two together would enjoin annual elections, and would rule their members unflinchingly. the voluntary plan, therefore, when tried in this easy form is inconsistent with the extrinsic independence as well as with the inherent moderation of a parliament--two of the conditions which, as we have seen, are essential to the bare possibility of parliamentary government. the same objections, as is inevitable, adhere to that principle under its more complicated forms. it is in vain to pile detail on detail when the objection is one of first principle. if the above reasoning be sound, compulsory constituencies are necessary, voluntary constituencies destructive; the optional transferability of votes is not a salutary aid, but a ruinous innovation. i have dwelt upon the proposal of mr. hare and upon the ultra-democratic proposal, not only because of the high intellectual interest of the former and the possible practical interest of the latter, but because they tend to bring into relief two at least of the necessary conditions of parliamentary government. but besides these necessary qualities which are needful before a parliamentary government can work at all, there are some additional prerequisites before it can work well. that a house of commons may work well it must perform, as we saw, five functions well: it must elect a ministry well, legislate well, teach the nation well, express the nation's will well, bring matters to the nation's attention well. the discussion has a difficulty of its own. what is meant by "well"? who is to judge? is it to be some panel of philosophers, some fancied posterity, or some other outside authority? i answer, no philosophy, no posterity, no external authority, but the english nation here and now. free government is self-government--a government of the people by the people. the best government of this sort is that which the people think best. an imposed government, a government like that of the english in india, may very possibly be better; it may represent the views of a higher race than the governed race; but it is not therefore a free government. a free government is that which the people subject to it voluntarily choose. in a casual collection of loose people the only possible free government is a democratic government. where no one knows, or cares for, or respects any one else all must rank equal; no one's opinion can be more potent than that of another. but, as has been explained, a deferential nation has a structure of its own. certain persons are by common consent agreed to be wiser than others, and their opinion is, by consent, to rank for much more than its numerical value. we may in these happy nations weigh votes as well as count them, though in less favoured countries we can count only. but in free nations, the votes so weighed or so counted must decide. a perfect free government is one which decides perfectly according to those votes; an imperfect, one which so decides imperfectly; a bad, one which does not so decide at all. public opinion is the test of this polity; the best opinion which with its existing habits of deference, the nation will accept: if the free government goes by that opinion, it is a good government of its species; if it contravenes that opinion, it is a bad one. tried by this rule the house of commons does its appointing business well. it chooses rulers as we wish rulers to be chosen. if it did not, in a speaking and writing age we should soon know. i have heard a great liberal statesman say, "the time was coming when we must advertise for a grievance".[6] what a good grievance it would be were the ministry appointed and retained by the parliament a ministry detested by the nation. an anti-present-government league would be instantly created, and it would be more instantly powerful and more instantly successful than the anti-corn-law league. [6] this was said in 1858. it has, indeed, been objected that the choosing business of parliament is done ill, because it does not choose strong governments. and it is certain that when public opinion does not definitely decide upon a marked policy, and when in consequence parties in the parliament are nearly even, individual cupidity and changeability may make parliament change its appointees too often; may induce them never enough to trust any of them; may make it keep all of them under a suspended sentence of coming dismissal. but the experience of lord palmerston's second government proves, i think, that these fears are exaggerated. when the choice of a nation is really fixed on a statesman, parliament will fix upon him too. the parties in the parliament of 1859 were as nearly divided as in any probable parliament; a great many liberals did not much like lord palmerston, and they would have gladly co-operated in an attempt to dethrone him. but the same influence acted on parliament within which acted on the nation without. the moderate men of both parties were satisfied that lord palmerston's was the best government, and they therefore preserved it though it was hated by the immoderate on both sides. we have then found by a critical instance that a government supported by what i may call "the common element"--by the like-minded men of unlike parties--will be retained in power, though parties are even, and though, as treasury counting reckons, the majority is imperceptible. if happily, by its intelligence and attractiveness, a cabinet can gain a hold upon the great middle part of parliament, it will continue to exist notwithstanding the hatching of small plots and the machinations of mean factions. on the whole, i think it indisputable that the selecting task of parliament is performed as well as public opinion wishes it to be performed; and if we want to improve that standard, we must first improve the english nation, which imposes that standard. of the substantial part of its legislative task, the same, too, may, i think, be said. the manner of our legislation is indeed detestable, and the machinery for settling that manner odious. a committee of the whole house, dealing, or attempting to deal with the elaborate clauses of a long bill, is a wretched specimen of severe but misplaced labour. it is sure to wedge some clause into the act, such as that which the judge said "seemed to have fallen by itself, perhaps, from heaven, into the mind of the legislature," so little had it to do with anything on either side or around it. at such times government by a public meeting displays its inherent defects, and is little restrained by its necessary checks. but the essence of our legislature may be separated from its accidents. subject to two considerable defects i think parliament passes laws as the nation wishes to have them passed. thirty years ago this was not so. the nation had outgrown its institutions, and was cramped by them. it was a man in the clothes of a boy; every limb wanted more room, and every garment to be fresh made. "d-mn me," said lord eldon in the dialect of his age, "if i had to begin life again i would begin as an agitator." the shrewd old man saw that the best life was that of a miscellaneous objector to the old world, though he loved that world, believed in it, could imagine no other. but he would not say so now. there is no worse trade than agitation at this time. a man can hardly get an audience if he wishes to complain of anything. nowadays, not only does the mind and policy of parliament (subject to the exceptions before named) possess the common sort of moderation essential to the possibility of parliamentary government, but also that exact gradation, that precise species of moderation, most agreeable to the nation at large. not only does the nation endure a parliamentary government, which it would not do if parliament were immoderate, but it likes parliamentary government. a sense of satisfaction permeates the country because most or the country feels it has got the precise thing that suits it. the exceptions are two. first. that parliament leans too much to the opinions of the landed interest. the cattle plague act is a conspicuous instance of this defect. the details of that bill may be good or bad, and its policy wise or foolish. but the manner in which it was hurried through the house savoured of despotism. the cotton trade or the wine trade could not, in their maximum of peril, have obtained such aid in such a manner. the house of commons would hear of no pause and would heed no arguments. the greatest number of them feared for their incomes. the land of england returns many members annually for the counties; these members the constitution gave them. but what is curious is that the landed interest gives no seats to other classes, but takes plenty of seats from other classes. half the boroughs in england are represented by considerable landowners, and when rent is in question, as in the cattle case, they think more of themselves than of those who sent them. in number the landed gentry in the house far surpass any other class. they have, too, a more intimate connection with one another; they were educated at the same schools; know one another's family name from boyhood; form a society; are the same kind of men; marry the same kind of women. the merchants and manufacturers in parliament are a motley race--one educated here, another there, a third not educated at all; some are of the second generation of traders, who consider self-made men intruders upon an hereditary place; others are self-made, and regard the men of inherited wealth, which they did not make and do not augment, as beings of neither mind nor place, inferior to themselves because they have no brains, and inferior to lords because they have no rank. traders have no bond of union, no habits of intercourse; their wives, if they care for society, want to see not the wives of other such men, but "better people," as they say--the wives of men certainly with land, and, if heaven help, with the titles. men who study the structure of parliament, not in abstract books, but in the concrete london world, wonder not that the landed interest is very powerful, but that it is not despotic. i believe it would be despotic if it were clever, or rather if its representatives were so, but it has a fixed device to make them stupid. the counties not only elect landowners, which is natural, and perhaps wise, but also elect only landowners of their own county, which is absurd. there is no free trade in the agricultural mind; each county prohibits the import of able men from other counties. this is why eloquent sceptics--bolingbroke and disraeli--have been so apt to lead the unsceptical tories. they will have people with a great piece of land in a particular spot, and of course these people generally cannot speak, and often cannot think. and so eloquent men who laugh at the party come to lead the party. the landed interest has much more influence than it should have; but it wastes that influence so much that the excess is, except on singular occurrences (like the cattle plague), of secondary moment. it is almost another side of the same matter to say that the structure of parliament gives too little weight to the growing districts of the country and too much to the stationary, in old times the south of england was not only the pleasantest but the greatest part of england. devonshire was a great maritime county when the foundations of our representation were fixed; somersetshire and wiltshire great manufacturing counties. the harsher climate of the northern counties was associated with a ruder, a stern, and a sparser people. the immense preponderance which our parliament gave before 1832, and though pruned and mitigated, still gives to england south of the trent, then corresponded to a real preponderance in wealth and mind. how opposite the present contrast is we all know. and the case gets worse every day. the nature of modern trade is to give to those who have much and take from those who have little. manufacture goes where manufacture is, because there and there alone it finds attendant and auxiliary manufacture. every railway takes trade from the little town to the big town because it enables the customer to buy in the big town. year by year the north (as we may roughly call the new industrial world) gets more important, and the south (as we may call the pleasant remnant of old time) gets less important. it is a grave objection to our existing parliamentary constitution that it gives much power to regions of past greatness, and refuses equal power to regions of present greatness. i think (though it is not a popular notion) that by far the greater part of the cry for parliamentary reform is due to this inequality. the great capitalists, mr. bright and his friends, believe they are sincere in asking for more power for the working man, but, in fact, they very naturally and very properly want more power for themselves. they cannot endure--they ought not to endure--that a rich, able manufacturer should be a less man than a small stupid squire. the notions of political equality which mr. bright puts forward are as old as political speculation, and have been refuted by the first efforts of that speculation. but for all that they are likely to last as long as political society, because they are based upon indelible principles in human nature. edmund burke called the first east indians, "jacobins to a man," because they did not feel their "present importance equal to their real wealth". so long as there is an uneasy class, a class which has not its just power, it will rashly clutch and blindly believe the notion that all men should have the same power. i do not consider the exclusion of the working classes from effectual representation a defect in this aspect of our parliamentary representation. the working classes contribute almost nothing to our corporate public opinion, and therefore, the fact of their want of influence in parliament does not impair the coincidence of parliament with public opinion. they are left out in the representation, and also in the thing represented. nor do i think the number of persons of aristocratic descent in parliament impairs the accordance of parliament with public opinion. no doubt the direct descendants and collateral relatives of noble families supply members to parliament in far greater proportion than is warranted by the number of such families in comparison with the whole nation. but i do not believe that these families have the least corporate character, or any common opinions, different from others of the landed gentry. they have the opinions of the propertied rank in which they were born. the english aristocracy have never been a caste apart, and are not a caste apart now. they would keep up nothing that other landed gentlemen would not. and if any landed gentlemen are to be sent to the house of commons, it is desirable that many should be men of some rank. as long as we keep up a double set of institutions--one dignified and intended to impress the many, the other efficient and intended to govern the many--we should take care that the two match nicely, and hide where the one begins and where the other ends. this is in part effected by conceding some subordinate power to the august part of our polity, but it is equally aided by keeping an aristocratic element in the useful part of our polity. in truth, the deferential instinct secures both. aristocracy is a power in the "constituencies". a man who is an honourable or a baronet, or better yet, perhaps, a real earl, though irish, is coveted by half the electing bodies; and caeteris paribus, a manufacturer's son has no chance with him. the reality of the deferential feeling in the community is tested by the actual election of the class deferred to, where there is a large free choice betwixt it and others. subject therefore to the two minor, but still not inconsiderable, defects i have named, parliament conforms itself accurately enough, both as a chooser of executives and as a legislature, to the formed opinion of the country. similarly, and subject to the same exceptions, it expresses the nation's opinion in words well, when it happens that words, not laws, are wanted. on foreign matters, where we cannot legislate, whatever the english nation thinks, or thinks it thinks, as to the critical events of the world, whether in denmark, in italy, or america, and no matter whether it thinks wisely or unwisely, that same something, wise or unwise, will be thoroughly well said in parliament. the lyrical function of parliament, if i may use such a phrase, is well done; it pours out in characteristic words the characteristic heart of the nation. and it can do little more useful. now that free government is in europe so rare and in america so distant, the opinion, even the incomplete, erroneous, rapid opinion of the free english people is invaluable. it may be very wrong, but it is sure to be unique; and if it is right it is sure to contain matter of great magnitude, for it is only a first-class matter in distant things which a free people ever sees or learns. the english people must miss a thousand minutiae that continental bureaucracies know even too well; but if they see a cardinal truth which those bureaucracies miss, that cardinal truth may greatly help the world. but if in these ways, and subject to these exceptions, parliament by its policy and its speech well embodies and expresses public opinion, i own i think it must be conceded that it is not equally successful in elevating public opinion. the teaching task of parliament is the task it does worst. probably at this moment, it is natural to exaggerate this defect. the greatest teacher of all in parliament, the head-master of the nation, the great elevator of the country--so far as parliament elevates it--must be the prime minister: he has an influence, an authority, a facility in giving a great tone to discussion, or a mean tone, which no other man has. now lord palmerston for many years steadily applied his mind to giving, not indeed a mean tone, but a light tone, to the proceedings of parliament. one of his greatest admirers has since his death told a story of which he scarcely sees, or seems to see, the full effect. when lord palmerston was first made leader of the house, his jaunty manner was not at all popular, and some predicted failure. "no," said an old member, "he will soon educate us down to his level; the house will soon prefer this ha! ha! style to the wit of canning and the gravity of peel." i am afraid that we must own that the prophecy was accomplished. no prime minister, so popular and so influential, has ever left in the public memory so little noble teaching. twenty years hence, when men inquire as to the then fading memory of palmerston, we shall be able to point to no great truth which he taught, no great distinct policy which he embodied, no noble words which once fascinated his age, and which, in after years, men would not willingly let die. but we shall be able to say "he had a genial manner, a firm, sound sense; he had a kind of cant of insincerity, but we always knew what he meant; he had the brain of a ruler in the clothes of a man of fashion". posterity will hardly understand the words of the aged reminiscent, but we now feel their effect. the house of commons, since it caught its tone from such a statesman, has taught the nation worse, and elevated it less, than usual. i think, however, that a correct observer would decide that in general, and on principle, the house of commons does not teach the public as much as it might teach it, or as the public would wish to learn. i do not wish very abstract, very philosophical, very hard matters to be stated in parliament. the teaching there given must be popular, and to be popular it must be concrete, embodied, short. the problem is to know the highest truth which the people will bear, and to inculcate and preach that. certainly lord palmerston did not preach it. he a little degraded us by preaching a doctrine just below our own standard--a doctrine not enough below us to repel us much, but yet enough below to harm us by augmenting a worldliness which needed no addition, and by diminishing a love of principle and philosophy which did not want deduction. in comparison with the debates of any other assembly, it is true the debates by the english parliament are most instructive. the debates in the american congress have little teaching efficacy; it is the characteristic vice of presidential government to deprive them of that efficacy; in that government a debate in the legislature has little effect, for it cannot turn out the executive, and the executive can veto all it decides. the french chambers[7] are suitable appendages to an empire which desires the power of despotism without its shame; they prevent the enemies of the empire being quite correct when they say there is no free speech; a few permitted objectors fill the air with eloquence, which every one knows to be often true, and always vain. the debates in an english parliament fill a space in the world which, in these auxiliary chambers, is not possible. but i think any one who compares the discussions on great questions in the higher part of the press, with the discussions in parliament, will feel that there is (of course amid much exaggeration and vagueness) a greater vigour and a higher meaning in the writing than in the speech: a vigour which the public appreciate--a meaning that they like to hear. [7] this of course relates to the assemblies of the empire. the saturday review said, some years since, that the ability of parliament was a "protected ability": that there was at the door a differential duty of at least 2000 pounds a year. accordingly the house of commons, representing only mind coupled with property, is not equal in mind to a legislature chosen for mind only, and whether accompanied by wealth or not. but i do not for a moment wish to see a representation of pure mind; it would be contrary to the main thesis of this essay. i maintain that parliament ought to embody the public opinion of the english nation; and, certainly, that opinion is much more fixed by its property than by its mind. the "too clever by half" people who live in "bohemia," ought to have no more influence in parliament than they have in england, and they can scarcely have less. only, after every great abatement and deduction, i think the country would bear a little more mind; and that there is a profusion of opulent dulness in parliament which might a little--though only a little--be pruned away. the only function of parliament which remains to be considered is the informing function, as i just now called it; the function which belongs to it, or to members of it, to bring before the nation the ideas, grievances, and wishes of special classes. this must not be confounded with what i have called its teaching function. in life, no doubt, the two run one into another. but so do many things which it is very important in definition to separate. the facts of two things being often found together is rather a reason for, than an objection to, separating them, in idea. sometimes they are not found together, and then we may be puzzled if we have not trained ourselves to separate them. the teaching function brings true ideas before the nation, and is the function of its highest minds. the expressive function brings only special ideas, and is the function of but special minds. each class has its ideas, wants, and notions; and certain brains are ingrained with them. such sectarian conceptions are not those by which a determining nation should regulate its action, nor are orators, mainly animated by such conceptions, safe guides in policy. but those orators should be heard; those conceptions should be kept in sight. the great maxim of modern thought is not only the toleration of everything, but the examination of everything. it is by examining very bare, very dull, very unpromising things, that modern science has come to be what it is. there is a story of a great chemist who said he owed half his fame to his habit of examining after his experiments, what was going to be thrown away: everybody knew the result of the experiment itself, but in the refuse matter there were many little facts and unknown changes, which suggested the discoveries of a famous life to a person capable of looking for them. so with the special notions of neglected classes. they may contain elements of truth which, though small, are the very elements which we now require, because we already know all the rest. this doctrine was well known to our ancestors. they laboured to give a character to the various constituencies, or to many of them. they wished that the shipping trade, the wool trade, the linen trade, should each have their spokesman; that the unsectional parliament should know what each section in the nation thought before it gave the national decision. this is the true reason for admitting the working classes to a share in the representation, at least as far as the composition of parliament is to be improved by that admission. a great many ideas, a great many feelings have gathered among the town artisans--a peculiar intellectual life has sprung up among them. they believe that they have interests which are misconceived or neglected; that they know something which others do not know; that the thoughts of parliament are not as their thoughts. they ought to be allowed to try to convince parliament; their notions ought to be stated as those of other classes are stated; their advocates should be heard as other people's advocates are heard. before the reform bill, there was a recognised machinery for that purpose. the member for westminster, and other members, were elected by universal suffrage (or what was in substance such); those members did, in their day, state what were the grievances and ideas--or were thought to be the grievances and ideas--of the working classes. it was the single, unbending franchise introduced in 1832 that has caused this difficulty, as it has others. until such a change is made the house of commons will be defective, just as the house of lords was defective. it will not look right. as long as the lords do not come to their own house, we may prove on paper that it is a good revising chamber, but it will be difficult to make the literary argument felt. just so, as long as a great class, congregated in political localities, and known to have political thoughts and wishes, is without notorious and palpable advocates in parliament, we may prove on paper that our representation is adequate, but the world will not believe it. there is a saying in the eighteenth century, that in politics, "gross appearances are great realities". it is in vain to demonstrate that the working classes have no grievances; that the middle classes have done all that is possible for them, and so on with a crowd of arguments which i need not repeat, for the newspapers keep them in type, and we can say them by heart. but so long as the "gross appearance" is that there are no evident, incessant representatives to speak the wants of artisans, the "great reality" will be a diffused dissatisfaction. thirty years ago it was vain to prove that gatton and old sarum were valuable seats, and sent good members. everybody said, "why, there are no people there". just so everybody must say now, "our representative system must be imperfect, for an immense class has no members to speak for it". the only answer to the cry against constituencies without inhabitants was to transfer their power to constituencies with inhabitants. just so, the way to stop the complaint that artisans have no members is to give them members--to create a body of representatives, chosen by artisans, believing, as mr. carlyle would say, "that artisanism is the one thing needful". no. vi. on changes of ministry. there is one error as to the english constitution which crops up periodically. circumstances which often, though irregularly, occur naturally suggests that error, and as surely as they happen it revives. the relation of parliament, and especially of the house of commons, to the executive government is the specific peculiarity of our constitution, and an event which frequently happens much puzzles some people as to it. that event is a change of ministry. all our administrators go out together. the whole executive government changes--at least, all the heads of it change in a body, and at every such change some speculators are sure to exclaim that such a habit is foolish. they say: "no doubt mr. gladstone and lord russell may have been wrong about reform; no doubt mr. gladstone may have been cross in the house of commons; but why should either or both of these events change all the heads of all our practical departments? what could be more absurd than what happened in 1858? lord palmerston was for once in his life over-buoyant; he gave rude answers to stupid inquiries; he brought into the cabinet a nobleman concerned in an ugly trial about a woman; he, or his foreign secretary, did not answer a french despatch by a despatch, but told our ambassador to reply orally. and because of these trifles, or at any rate these isolated unadministrative mistakes, all our administration had fresh heads. the poor law board had a new chief, the home department a new chief, the public works a new chief. surely this was absurd." now, is this objection good or bad? speaking generally, is it wise so to change all our rulers? the practice produces three great evils. first, it brings in on a sudden new persons and untried persons to preside over our policy. a little while ago lord cranborne[8] had no more idea that he would now be indian secretary than that he would be a bill broker. he had never given any attention to indian affairs; he can get them up, because he is an able educated man who can get up anything. but they are not "part and parcel" of his mind; not his subjects of familiar reflection, nor things of which he thinks by predilection, of which he cannot help thinking. but because lord russell and mr. gladstone did not please the house of commons about reform, there he is. a perfectly inexperienced man, so far as indian affairs go, rules all our indian empire. and if all our heads of offices change together, so very frequently it must be. if twenty offices are vacant at once, there are almost never twenty tried, competent, clever men ready to take them. the difficulty of making up a government is very much like the difficulty of putting together a chinese puzzle: the spaces do not suit what you have to put into them. and the difficulty of matching a ministry is more than that of fitting a puzzle, because the ministers to be put in can object, though the bits of a puzzle cannot. one objector can throw out the combination. in 1847 lord grey would not join lord john russell's projected government if lord palmerston was to be foreign secretary; lord palmerston would be foreign secretary, and so the government was not formed. the cases in which a single refusal prevents a government are rare, and there must be many concurrent circumstances to make it effectual. but the cases in which refusals impair or spoil a government are very common. it almost never happens that the ministry-maker can put into his offices exactly whom he would like; a number of placemen are always too proud, too eager, or too obstinate to go just where they should. [8] now lord salisbury, who, when this was written, was indian secretary.--note to second edition. again, this system not only makes new ministers ignorant, but keeps present ministers indifferent. a man cannot feel the same interest that he might in his work if he knows that by events over which he has no control, by errors in which he had no share, by metamorphoses of opinion which belong to a different sequence of phenomena, he may have to leave that work in the middle, and may very likely never return to it. the new man put into a fresh office ought to have the best motive to learn his task thoroughly, but, in fact, in england, he has not at all the best motive. the last wave of party and politics brought him there, the next may take him away. young and eager men take, even at this disadvantage, a keen interest in office work, but most men, especially old men, hardly do so. many a battered minister may be seen to think much more of the vicissitudes which make him and unmake him, than of any office matter. lastly, a sudden change of ministers may easily cause a mischievous change of policy. in many matters of business, perhaps in most, a continuity of mediocrity is better than a hotch-potch of excellences. for example, now that progress in the scientific arts is revolutionising the instruments of war, rapid changes in our head-preparers for land and sea war are most costly and most hurtful. a single competent selector of new inventions would probably in the course of years, after some experience, arrive at something tolerable; it is in the nature of steady, regular, experimenting ability to diminish, if not vanquish, such difficulties. but a quick succession of chiefs has no similar facility. they do not learn from each other's experience;--you might as well expect the new head boy at a public school to learn from the experience of the last head boy. the most valuable result of many years is a nicely balanced mind instinctively heedful of various errors; but such a mind is the incommunicable gift of individual experience, and an outgoing minister can no more leave it to his successor, than an elder brother can pass it on to a younger. thus a desultory and incalculable policy may follow from a rapid change of ministers. these are formidable arguments, but four things may, i think, be said in reply to, or mitigation of them. a little examination will show that this change of ministers is essential to a parliamentary government; that something like it will happen in all elective governments, and that worse happens under presidential government; that it is not necessarily prejudicial to a good administration, but that, on the contrary, something like it is a prerequisite of good administration; that the evident evils of english administration are not the results of parliamentary government, but of grave deficiencies in other parts of our political and social state; that, in a word, they result not from what we have, but from what we have not. as to the first point, those who wish to remove the choice of ministers from parliament have not adequately considered what a parliament is. a parliament is nothing less than a big meeting of more or less idle people. in proportion as you give it power it will inquire into everything, settle everything, meddle in everything. in an ordinary despotism, the powers of a despot are limited by his bodily capacity, and by the calls of pleasure; he is but one man; there are but twelve hours in his day, and he is not disposed to employ more than a small part in dull business; he keeps the rest for the court, or the harem, or for society. he is at the top of the world, and all the pleasures of the world are set before him. mostly there is only a very small part of political business which he cares to understand, and much of it (with the shrewd sensual sense belonging to the race) he knows that he will never understand. but a parliament is composed of a great number of men by no means at the top of the world. when you establish a predominant parliament, you give over the rule of the country to a despot who has unlimited time--who has unlimited vanity--who has, or believes he has, unlimited comprehension, whose pleasure is in action, whose life is work. there is no limit to the curiosity of parliament. sir robert peel once suggested that a list should be taken down of the questions asked of him in a single evening; they touched more or less on fifty subjects, and there were a thousand other subjects which by parity of reason might have been added too. as soon as bore a ends, bore b begins. some inquire from genuine love of knowledge, or from a real wish to improve what they ask about; others to see their name in the papers; others to show a watchful constituency that they are alert; others to get on and to get a place in the government; others from an accumulation of little motives they could not themselves analyse, or because it is their habit to ask things. and a proper reply must be given. it was said that "darby griffith destroyed lord palmerston's first government," and undoubtedly the cheerful impertinence with which in the conceit of victory that minister answered grave men much hurt his parliamentary power. there is one thing which no one will permit to be treated lightly--himself. and so there is one too which a sovereign assembly will never permit to be lessened or ridiculed--its own power. the minister of the day will have to give an account in parliament of all branches of administration, to say why they act when they do, and why they do not when they don't. nor is chance inquiry all a public department has most to fear. fifty members of parliament may be zealous for a particular policy affecting the department, and fifty others for another policy, and between them they may divide its action, spoil its favourite aims, and prevent its consistently working out either of their own aims. the process is very simple. every department at times looks as if it was in a scrape; some apparent blunder, perhaps some real blunder, catches the public eye. at once the antagonist parliamentary sections, which want to act on the department, seize the opportunity. they make speeches, they move for documents, they amass statistics. they declare "that in no other country is such a policy possible as that which the department is pursuing; that it is mediaeval; that it costs money; that it wastes life; that america does the contrary; that prussia does the contrary". the newspapers follow according to their nature. these bits of administrative scandal amuse the public. articles on them are very easy to write, easy to read, easy to talk about. they please the vanity of mankind. we think as we read, "thank god, _i_ am not as that man; _i_ did not send green coffee to the crimea; _i_ did not send patent cartridge to the common guns, and common cartridge to the breech loaders. _i_ make money; that miserable public functionary only wastes money". as for the defence of the department, no one cares for it or reads it. naturally at first hearing it does not sound true. the opposition have the unrestricted selection of the point of attack, and they seldom choose a case in which the department, upon the surface of the matter, seems to be right. the case of first impression will always be that something shameful has happened; that such and such men did die; that this and that gun would not go off; that this or that ship will not sail. all the pretty reading is unfavourable, and all the praise is very dull. nothing is more helpless than such a department in parliament if it has no authorised official defender. the wasps of the house fasten on it; here they perceive is something easy to sting, and safe, for it cannot sting in return. the small grain of foundation for complaint germinates, till it becomes a whole crop. at once the minister of the day is appealed to; he is at the head of the administration, and he must put the errors right, if such they are. the opposition leader says: "i put it to the right honourable gentleman, the first lord of the treasury. he is a man of business. i do not agree with him in his choice of ends, but he is an almost perfect master of methods and means. what he wishes to do he does do. now i appeal to him whether such gratuitous errors, such fatuous incapacity, are to be permitted in the public service. perhaps the right honourable gentleman will grant me his attention while i show from the very documents of the departments," etc., etc. what is the minister to do? he never heard of this matter; he does not care about the matter. several of the supporters of the government are interested in the opposition to the department; a grave man, supposed to be wise, mutters, "this is too bad". the secretary of the treasury tells him, "the house is uneasy. a good many men are shaky. a. b. said yesterday he had been dragged through the dirt four nights following. indeed i am disposed to think myself that the department has been somewhat lax. perhaps an inquiry," etc., etc. and upon that the prime minister rises and says: "that her majesty's government having given very serious and grave consideration to this most important subject, are not prepared to say that in so complicated a matter the department has been perfectly exempt from error. he does not indeed concur in all the statements which have been made; it is obvious that several of the charges advanced are inconsistent with one another. if a. had really died from eating green coffee on the tuesday, it is plain he could not have suffered from insufficient medical attendance on the following thursday. however, on so complex a subject, and one so foreign to common experience, he will not give a judgment. and if the honourable member would be satisfied with having the matter inquired into by a committee of that house, he will be prepared to accede to the suggestion." possibly the outlying department, distrusting the ministry, crams a friend. but it is happy indeed if it chances on a judicious friend. the persons most ready to take up that sort of business are benevolent amateurs, very well intentioned, very grave, very respectable, but also rather dull. their words are good, but about the joints their arguments are weak. they speak very well, but while they are speaking, the decorum is so great that everybody goes away. such a man is no match for a couple of house of commons gladiators. they pull what he says to shreds. they show or say that he is wrong about his facts. then he rises in a fuss and must explain: but in his hurry he mistakes, and cannot find the right paper, and becomes first hot, then confused, next inaudible, and so sits down. probably he leaves the house with the notion that the defence of the department has broken down, and so the times announces to all the world as soon as it awakes. some thinkers have naturally suggested that the heads of departments should as such have the right of speech in the house. but the system when it has been tried has not answered. m. guizot tells us from his own experience that such a system is not effectual. a great popular assembly has a corporate character; it has its own privileges, prejudices, and notions. and one of these notions is that its own members--the persons it sees every day--whose qualities it knows, whose minds it can test, are those whom it can most trust. a clerk speaking from without would be an unfamiliar object. he would be an outsider. he would speak under suspicion; he would speak without dignity. very often he would speak as a victim. all the bores of the house would be upon him. he would be put upon examination. he would have to answer interrogatories. he would be put through the figures and cross-questioned in detail. the whole effect of what he said would be lost in quaestiunculae and hidden in a controversial detritus. again, such a person would rarely speak with great ability. he would speak as a scribe. his habits must have been formed in the quiet of an office: he is used to red tape, placidity, and the respect of subordinates. such a person will hardly ever be able to stand the hurly-burly of a public assembly. he will lose his head--he will say what he should not. he will get hot and red; he will feel he is a sort of culprit. after being used to the flattering deference of deferential subordinates, he will be pestered by fuss and confounded by invective. he will hate the house as naturally as the house does not like him. he will be an incompetent speaker addressing a hostile audience. and what is more, an outside administrator addressing parliament can move parliament only by the goodness of his arguments. he has no votes to back them up with. he is sure to be at chronic war with some active minority of assailants or others. the natural mode in which a department is improved on great points and new points is by external suggestion; the worse foes of a department are the plausible errors which the most visible facts suggest, and which only half visible facts confute. both the good ideas and the bad ideas are sure to find advocates first in the press and then in parliament. against these a permanent clerk would have to contend by argument alone. the minister, the head of the parliamentary government, will not care for him. the minister will say in some undress soliloquy, "these permanent 'fellows' must look after themselves. i cannot be bothered. i have only a majority of nine, and a very shaky majority, too. i cannot afford to make enemies for those whom i did not appoint. they did nothing for me, and i can do nothing for them." and if the permanent clerk come to ask his help, he will say in decorous language, "i am sure that if the department can evince to the satisfaction of parliament that its past management has been such as the public interests require, no one will be more gratified than myself. i am not aware if it will be in my power to attend in my place on monday; but if i can be so fortunate, i shall listen to your official statement with my very best attention." and so the permanent public servant will be teased by the wits, oppressed by the bores, and massacred by the innovators of parliament. the incessant tyranny of parliament over the public offices is prevented and can only be prevented by the appointment of a parliamentary head, connected by close ties with the present ministry and the ruling party in parliament the parliamentary head is a protecting machine. he and the friends he brings stand between the department and the busybodies and crotchet-makers of the house and the country. so long as at any moment the policy of an office could be altered by chance votes in either house of parliament, there is no security for any consistency. our guns and our ships are not, perhaps, very good now. but they would be much worse if any thirty or forty advocates for this gun or that gun could make a motion in parliament, beat the department, and get their ships or their guns adopted. the "black breech ordnance company" and the "adamantine ship company" would soon find representatives in parliament, if forty or fifty members would get the national custom for their rubbish. but this result is now prevented by the parliamentary head of the department. as soon as the opposition begins the attack, he looks up his means of defence. he studies the subject, compiles his arguments, and builds little piles of statistics, which he hopes will have some effect. he has his reputation at stake, and he wishes to show that he is worth his present place, and fit for future promotion. he is well known, perhaps liked, by the house--at any rate the house attends to him; he is one of the regular speakers whom they hear and heed. he is sure to be able to get himself heard, and he is sure to make the best defence he can. and after he has settled his speech he loiters up to the secretary of the treasury, and says quietly, "they have got a motion against me on tuesday, you know. i hope you will have your men here. a lot of fellows have crotchets, and though they do not agree a bit with one another, they are all against the department; they will all vote for the inquiry." and the secretary answers, "tuesday, you say; no (looking at a paper), i do not think it will come on tuesday. there is higgins on education. he is good for a long time. but anyhow it shall be all right." and then he glides about and speaks a word here and a word there, in consequence of which, when the anti-official motion is made, a considerable array of steady, grave faces sits behind the treasury bench--nay, possibly a rising man who sits in outlying independence below the gangway rises to defend the transaction; the department wins by thirty-three, and the management of that business pursues its steady way. this contrast is no fancy picture. the experiment of conducting the administration of a public department by an independent unsheltered authority has often been tried, and always failed. parliament always poked at it, till it made it impossible. the most remarkable is that of the poor law. the administration of that law is not now very good, but it is not too much to say that almost the whole of its goodness has been preserved by its having an official and party protector in the house of commons. without that contrivance we should have drifted back into the errors of the old poor law, and superadded to them the present meanness and incompetence in our large towns. all would have been given up to local management. parliament would have interfered with the central board till it made it impotent, and the local authorities would have been despotic. the first administration of the new poor law was by "commissioners"--the three kings of somerset house, as they were called. the system was certainly not tried in untrustworthy hands. at the crisis mr. chadwick, one of the most active and best administrators in england, was the secretary and the motive power: the principal commissioner was sir george lewis, perhaps the best selective administrator of our time. but the house of commons would not let the commission alone. for a long time it was defended because the whigs had made the commission, and felt bound as a party to protect it. the new law started upon a certain intellectual impetus, and till that was spent its administration was supported in a rickety existence by an abnormal strength. but afterwards the commissioners were left to their intrinsic weakness. there were members for all the localities, but there were none for them. there were members for every crotchet and corrupt interest, but there were none for them. the rural guardians would have liked to eke out wages by rates; the city guardians hated control, and hated to spend money. the commission had to be dissolved, and a parliamentary head was added; the result is not perfect, but it is an amazing improvement on what would have happened in the old system. the new system has not worked well because the central authority has too little power; but under the previous system the central authority was getting to have, and by this time would have had, no power at all. and if sir george lewis and mr. chadwick could not maintain an outlying department in the face of parliament, how unlikely that an inferior compound of discretion and activity will ever maintain it! these reasonings show why a changing parliamentary head, a head changing as the ministry changes, is a necessity of good parliamentary government, and there is happily a natural provision that there will be such heads. party organisation ensures it. in america, where on account of the fixedly recurring presidential election, and the perpetual minor elections, party organisation is much more effectually organised than anywhere else, the effect on the offices is tremendous. every office is filled anew at every presidential change, at least every change which brings in a new party. not only the greatest posts, as in england, but the minor posts change their occupants. the scale of the financial operations of the federal government is now so increased that most likely in that department, at least, there must in future remain a permanent element of great efficiency; a revenue of 90,000,000 pounds sterling cannot be collected and expended with a trifling and changing staff. but till now the americans have tried to get on not only with changing heads to a bureaucracy, as the english, but without any stable bureaucracy at all. they have facilities for trying it which no one else has. all americans can administer, and the number of them really fit to be in succession lawyers, financiers, or military managers is wonderful; they need not be as afraid of a change of all their officials as european countries must, for the incoming substitutes are sure to be much better there than here; and they do not fear, as we english fear, that the outgoing officials will be left destitute in middle life, with no hope for the future and no recompense for the past, for in america (whatever may be the cause of it) opportunities are numberless, and a man who is ruined by being "off the rails" in england soon there gets on another line. the americans will probably to some extent modify their past system of total administrative cataclysms, but their very existence in the only competing form of free government should prepare us for and make us patient with the mild transitions of parliamentary government. these arguments will, i think, seem conclusive to almost every one; but, at this moment, many people will meet them thus: they will say, "you prove what we do not deny, that this system of periodical change is a necessary ingredient in parliamentary government, but you have not proved what we do deny, that this change is a good thing. parliamentary government may have that effect, among others, for anything we care: we maintain merely that it is a defect." in answer, i think it may be shown not, indeed, that this precise change is necessary to a permanently perfect administration, but that some analogous change, some change of the same species, is so. at this moment, in england, there is a sort of leaning towards bureaucracy--at least, among writers and talkers. there is a seizure of partiality to it. the english people do not easily change their rooted notions, but they have many unrooted notions. any great european event is sure for a moment to excite a sort of twinge of conversion to something or other. just now, the triumph of the prussians--the bureaucratic people, as is believed, par excellence--has excited a kind of admiration for bureaucracy, which a few years since we should have thought impossible. i do not presume to criticise the prussian bureaucracy of my own knowledge; it certainly is not a pleasant institution for foreigners to come across, though agreeableness to travellers is but of very second-rate importance. but it is quite certain that the prussian bureaucracy, though we, for a moment, half admire it at a distance, does not permanently please the most intelligent and liberal prussians at home. what are two among the principal aims of the fortschritt partei--the party of progress--as mr. grant duff, the most accurate and philosophical of our describers, delineates them? first, "a liberal system, conscientiously carried out in all the details of the administration, with a view to avoiding the scandals now of frequent occurrence, when an obstinate or bigoted official sets at defiance the liberal initiations of the government, trusting to backstairs influence". second, "an easy method of bringing to justice guilty officials, who are at present, as in france, in all conflicts with simple citizens, like men armed cap-a-pie fighting with defenceless". a system against which the most intelligent native liberals bring even with colour of reason such grave objections, is a dangerous model for foreign imitation. the defects of bureaucracy are, indeed, well known. it is a form of government which has been tried often enough in the world, and it is easy to show what, human nature being what it in the long run is, the defects of a bureaucracy must in the long run be. it is an inevitable defect, that bureaucrats will care more for routine than for results; or, as burke put it, "that they will think the substance of business not to be much more important than the forms of it". their whole education and all the habit of their lives make them do so. they are brought young into the particular part of the public service to which they are attached; they are occupied for years in learning its forms--afterwards, for years too, in applying these forms to trifling matters. they are, to use the phrase of an old writer, "but the tailors of business; they cut the clothes, but they do not find the body". men so trained must come to think the routine of business not a means, but an end--to imagine the elaborate machinery of which they form a part, and from which they derive their dignity, to be a grand and achieved result, not a working and changeable instrument. but in a miscellaneous world, there is now one evil and now another. the very means which best helped you yesterday, may very likely be those which most impede you to-morrow--you may want to do a different thing to-morrow, and all your accumulation of means for yesterday's work is but an obstacle to the new work. the prussian military system is the theme of popular wonder now, yet it sixty years pointed the moral against form. we have all heard the saying that "frederic the great lost the battle of jena". it was the system which he had established--a good system for his wants and his times--which, blindly adhered to, and continued into a different age, put to strive with new competitors, brought his country to ruin. the "dead and formal" prussian system was then contrasted with the "living" french system--the sudden outcome of the new explosive democracy. the system which now exists is the product of the reaction; and the history of its predecessor is a warning what its future history may be too. it is not more celebrated for its day than frederic's for his, and principle teaches that a bureaucracy, elated by sudden success, and marvelling at its own merit, is the most unimproving and shallow of governments. not only does a bureaucracy thus tend to under-government, in point of quality; it tends to over-government, in point of quantity. the trained official hates the rude, untrained public. he thinks that they are stupid, ignorant, reckless--that they cannot tell their own interest--that they should have the leave of the office before they do anything. protection is the natural inborn creed of every official body; free trade is an extrinsic idea alien to its notions, and hardly to be assimilated with life; and it is easy to see how an accomplished critic, used to a free and active life, could thus describe the official. "every imaginable and real social interest," says mr. laing, "religion, education, law, police, every branch of public or private business, personal liberty to move from place to place, even from parish to parish within the same jurisdiction; liberty to engage in any branch of trade or industry, on a small or large scale, all the objects, in short, in which body, mind, and capital can be employed in civilised society, were gradually laid hold of for the employment and support of functionaries, were centralised in bureaux, were superintended, licensed, inspected, reported upon, and interfered with by a host of officials scattered over the land, and maintained at the public expense, yet with no conceivable utility in their duties. they are not, however, gentlemen at large, enjoying salary without service. they are under a semi-military discipline. in bavaria, for instance, the superior civil functionary can place his inferior functionary under house-arrest, for neglect of duty, or other offence against civil functionary discipline. in wurtemberg, the functionary cannot marry without leave from his superior. voltaire says, somewhere, that, 'the art of government is to make two-thirds of a nation pay all it possibly can pay for the benefit of the other third'. this is realised in germany by the functionary system. the functionaries are not there for the benefit of the people, but the people for the benefit of the functionaries. all this machinery of functionarism, with its numerous ranks and gradations in every district, filled with a staff of clerks and expectants in every department looking for employment, appointments, or promotions, was intended to be a new support of the throne in the new social state of the continent; a third class, in connection with the people by their various official duties of interference in all public or private affairs, yet attached by their interests to the kingly power. the beamptenstand, or functionary class, was to be the equivalent to the class of nobility, gentry, capitalists, and men of larger landed property than the peasant-proprietors, and was to make up in numbers for the want of individual weight and influence. in france, at the expulsion of louis philippe, the civil functionaries were stated to amount to 807,030 individuals. this civil army was more than double of the military. in germany, this class is necessarily more numerous in proportion to the population, the landwehr system imposing many more restrictions than the conscription on the free action of the people, and requiring more officials to manage it, and the semi-feudal jurisdictions and forms of law requiring much more writing and intricate forms of procedure before the courts than the code napoleon." a bureaucracy is sure to think that its duty is to augment official power, official business, or official members, rather than to leave free the energies of mankind; it overdoes the quantity of government, as well as impairs its quality. the truth is, that a skilled bureaucracy--a bureaucracy trained from early life to its special avocation--is, though it boasts of an appearance of science, quite inconsistent with the true principles of the art of business. that art has not yet been condensed into precepts, but a great many experiments have been made, and a vast floating vapour of knowledge floats through society. one of the most sure principles is, that success depends on a due mixture of special and non-special minds--of minds which attend to the means, and of minds which attend to the end. the success of the great joint-stock banks of london--the most remarkable achievement of recent business--has been an example of the use of this mixture. these banks are managed by a board of persons mostly not trained to the business, supplemented by, and annexed to, a body of specially trained officers, who have been bred to banking all their lives. these mixed banks have quite beaten the old banks, composed exclusively of pure bankers; it is found that the board of directors has greater and more flexible knowledge--more insight into the wants of a commercial community--knows when to lend and when not to lend, better than the old bankers, who had never looked at life, except out of the bank windows. just so the most successful railways in europe have been conducted--not by engineers or traffic managers--but by capitalists; by men of a certain business culture, if of no other. these capitalists buy and use the services of skilled managers, as the unlearned attorney buys and uses the services of the skilled barrister, and manage far better than any of the different sorts of special men under them. they combine these different specialities--make it clear where the realm of one ends and that of the other begins, and add to it a wide knowledge of large affairs, which no special man can have, and which is only gained by diversified action. but this utility of leading minds used to generalise, and acting upon various materials, is entirely dependent upon their position. they must not be at the bottom--they must not even be half way up--they must be at the top. a merchant's clerk would be a child at a bank counter; but the merchant himself could, very likely, give good, clear, and useful advice in a bank court. the merchant's clerk would be equally at sea in a railway office, but the merchant himself could give good advice, very likely, at a board of directors. the summits (if i may so say) of the various kinds of business are, like the tops of mountains, much more alike than the parts below--the bare principles are much the same; it is only the rich variegated details of the lower strata that so contrast with one another. but it needs travelling to know that the summits are the same. those who live on one mountain believe that their mountain is wholly unlike all others. the application of this principle to parliamentary government is very plain; it shows at once that the intrusion from without upon an office of an exterior head of the office, is not an evil, but that, on the contrary, it is essential to the perfection of that office. if it is left to itself, the office will become technical, self-absorbed, self-multiplying. it will be likely to overlook the end in the means; it will fail from narrowness of mind; it will be eager in seeming to do; it will be idle in real doing. an extrinsic chief is the fit corrector of such errors. he can say to the permanent chief, skilled in the forms and pompous with the memories of his office, "will you, sir, explain to me how this regulation conduces to the end in view? according to the natural view of things, the applicant should state the whole of his wishes to one clerk on one paper; you make him say it to five clerks on five papers." or, again, "does it not appear to you, sir, that the reason of this formality is extinct? when we were building wood ships, it was quite right to have such precautions against fire; but now that we are building iron ships," etc., etc. if a junior clerk asked these questions, he would be "pooh-poohed!" it is only the head of an office that can get them answered. it is he, and he only, that brings the rubbish of office to the burning-glass of sense. the immense importance of such a fresh mind is greatest in a country where business changes most. a dead, inactive, agricultural country may be governed by an unalterable bureau for years and years, and no harm come of it. if a wise man arranged the bureau rightly in the beginning, it may run rightly a long time. but if the country be a progressive, eager, changing one, soon the bureau will either cramp improvement, or be destroyed itself. this conception of the use of a parliamentary head shows how wrong is the obvious notion which regards him as the principal administrator of his office. the late sir george lewis used to be fond of explaining this subject. he had every means of knowing. he was bred in the permanent civil service. he was a very successful chancellor of the exchequer, a very successful home secretary, and he died minister for war. he used to say, "it is not the business of a cabinet minister to work his department. his business is to see that it is properly worked. if he does much, he is probably doing harm. the permanent staff of the office can do what he chooses to do much better, or if they cannot, they ought to be removed. he is only a bird of passage, and cannot compete with those who are in the office all their lives round." sir george lewis was a perfect parliamentary head of an office, so far as that head is to be a keen critic and rational corrector of it. but sir george lewis was not perfect; he was not even an average good head in another respect. the use of a fresh mind applied to the official mind is not only a corrective use, it is also an animating use. a public department is very apt to be dead to what is wanting for a great occasion till the occasion is past. the vague public mind will appreciate some signal duty before the precise, occupied administration perceives it. the duke of newcastle was of this use at least in the crimean war. he roused up his department, though when roused it could not act. a perfect parliamentary minister would be one who should add the animating capacity of the duke of newcastle to the accumulated sense, the detective instinct, and the laissez faire habit of sir george lewis. as soon as we take the true view of parliamentary office we shall perceive that, fairly, frequent change in the official is an advantage, not a mistake. if his function is to bring a representative of outside sense and outside animation in contact with the inside world, he ought often to be changed. no man is a perfect representative of outside sense. "there is some one," says the true french saying, "who is more able than talleyrand, more able than napoleon. cest tout le monde." that many-sided sense finds no microcosm in any single individual. still less are the critical function and the animating function of a parliamentary minister likely to be perfectly exercised by one and the same man. impelling power and restraining wisdom are as opposite as any two things, and are rarely found together. and even if the natural mind of the parliamentary minister was perfect, long contact with the office would destroy his use. inevitably he would accept the ways of office, think its thoughts, live its life. the "dyer's hand would be subdued to what it works in". if the function of a parliamentary minister is to be an outsider to his office, we must not choose one who, by habit, thought, and life, is acclimatised to its ways. there is every reason to expect that a parliamentary statesman will be a man of quite sufficient intelligence, quite enough various knowledge, quite enough miscellaneous experience, to represent effectually general sense in opposition to bureaucratic sense. most cabinet ministers in charge of considerable departments are men of superior ability; i have heard an eminent living statesman of long experience say that in his time he only knew one instance to the contrary. and there is the best protection that it shall be so. a considerable cabinet minister has to defend his department in the face of mankind; and though distant observers and sharp writers may depreciate it, this is a very difficult thing. a fool, who has publicly to explain great affairs, who has publicly to answer detective questions, who has publicly to argue against able and quick opponents, must soon be shown to be a fool. the very nature of parliamentary government answers for the discovery of substantial incompetence. at any rate, none of the competing forms of government have nearly so effectual a procedure for putting a good untechnical minister to correct and impel the routine ones. there are but four important forms of government in the present state of the world--the parliamentary, the presidential, the hereditary, and the dictatorial, or revolutionary. of these i have shown that, as now worked in america, the presidential form of government is incompatible with a skilled bureaucracy. if the whole official class change when a new party goes out or comes in, a good official system is impossible. even if more officials should be permanent in america than now, still, vast numbers will always be changed. the whole issue is based on a single election--on the choice of president; by that internecine conflict all else is won or lost. the managers of the contest have that greatest possible facility in using what i may call patronage--bribery. everybody knows that, as a fact, the president can give what places he likes to what persons, and when his friends tell a. b., "if we win, c. d. shall be turned out of utica post-office, and you, a. b., shall have it," a. b. believes it, and is justified in doing so. but no individual member of parliament can promise place effectually. he may not be able to give the places. his party may come in, but he will be powerless. in the united states party intensity is aggravated by concentrating an overwhelming importance on a single contest, and the efficiency of promised offices as a means of corruption is augmented, because the victor can give what he likes to whom he likes. nor is this the only defect of a presidential government in reference to the choice of officers. the president has the principal anomaly of a parliamentary government without having its corrective. at each change of party the president distributes (as here) the principal offices to his principal supporters. but he has an opportunity for singular favouritism; the minister lurks in the office; he need do nothing in public; he need not show for years whether he is a fool or wise. the nation can tell what a parliamentary member is by the open test of parliament; but no one, save from actual contact, or by rare position, can tell anything certain of a presidential minister. the case of a minister under an hereditary form of government is yet worse. the hereditary king may be weak; may be under the government of women; may appoint a minister from childish motives; may remove one from absurd whims. there is no security that an hereditary king will be competent to choose a good chief minister, and thousands of such kings have chosen millions of bad ministers. by the dictatorial, or revolutionary, sort of government, i mean that very important sort in which the sovereign--the absolute sovereign--is selected by insurrection. in theory, one would certainly have hoped that by this time such a crude elective machinery would have been reduced to a secondary part. but, in fact, the greatest nation (or, perhaps, after the exploits of bismarck, i should say one of the two greatest nations of the continent) vacillates between the revolutionary and the parliamentary, and now is governed under the revolutionary form. france elects its ruler in the streets of paris. flatterers may suggest that the democratic empire will become hereditary, but close observers know that it cannot. the idea of the government is that the emperor represents the people in capacity, in judgment, in instinct. but no family through generations can have sufficient, or half sufficient, mind to do so. the representative despot must be chosen by fighting, as napoleon i. and napoleon iii. were chosen. and such a government is likely, whatever be its other defects, to have a far better and abler administration than any other government. the head of the government must be a man of the most consummate ability. he cannot keep his place, he can hardly keep his life, unless he is. he is sure to be active, because he knows that his power, and perhaps his head, may be lost if he be negligent. the whole frame of his state is strained to keep down revolution. the most difficult of all political problems is to be solved--the people are to be at once thoroughly restrained and thoroughly pleased. the executive must be like a steel shirt of the middle ages--extremely hard and extremely flexible. it must give way to attractive novelties which do not hurt; it must resist such as are dangerous; it must maintain old things which are good and fitting; it must alter such as cramp and give pain. the dictator dare not appoint a bad minister if he would. i admit that such a despot is a better selector of administrators than a parliament; that he will know how to mix fresh minds and used minds better; that he is under a stronger motive to combine them well; that here is to be seen the best of all choosers with the keenest motives to choose. but i need not prove in england that the revolutionary selection of rulers obtains administrative efficiency at a price altogether transcending its value; that it shocks credit by its catastrophes; that for intervals it does not protect property or life; that it maintains an undergrowth of fear through all prosperity; that it may take years to find the true capable despot; that the interregna of the incapable are full of all evil; that the fit despot may die as soon as found; that the good administration and all else hang by the thread of his life. but if, with the exception of this terrible revolutionary government, a parliamentary government upon principle surpasses all its competitors in administrative efficiency, why is it that our english government, which is beyond comparison the best of parliamentary governments, is not celebrated through the world for administrative efficiency? it is noted for many things, why is it not noted for that? why, according to popular belief is it rather characterised by the very contrary? one great reason of the diffused impression is, that the english government attempts so much. our military system is that which is most attacked. objectors say we spend much more on our army than the great military monarchies, and yet with an inferior result. but, then, what we attempt is incalculably more difficult. the continental monarchies have only to defend compact european territories by the many soldiers whom they force to fight; the english try to defend without any compulsion--only by such soldiers as they persuade to serve--territories far surpassing all europe in magnitude, and situated all over the habitable globe. our horse guards and war office may not be at all perfect--i believe they are not: but if they had sufficient recruits selected by force of law--if they had, as in prussia, the absolute command of each man's time for a few years, and the right to call him out afterwards when they liked, we should be much surprised at the sudden ease and quickness with which they did things. i have no doubt too that any accomplished soldier of the continent would reject as impossible what we after a fashion effect. he would not attempt to defend a vast scattered empire, with many islands, a long frontier line in every continent, and a very tempting bit of plunder at the centre, by mere volunteer recruits, who mostly come from the worst class of the people--whom the great duke called the "scum of the earth"--who come in uncertain numbers year by year--who by some political accident may not come in adequate numbers, or at all, in the year we need them most. our war office attempts what foreign war offices (perhaps rightly) would not try at; their officers have means of incalculable force denied to ours, though ours is set to harder tasks. again, the english navy undertakes to defend a line of coast and a set of dependencies far surpassing those of any continental power. and the extent of our operations is a singular difficulty just now. it requires us to keep a large stock of ships and arms. but on the other hand, there are most important reasons why we should not keep much. the naval art and the military art are both in a state of transition; the last discovery of to-day is out of date, and superseded by an antagonistic discovery to-morrow. any large accumulation of vessels or guns is sure to contain much that will be useless, unfitting, antediluvian, when it comes to be tried. there are two cries against the admiralty which go on side by side: one says, "we have not ships enough, no 'relief' ships, no navy, to tell the truth"; the other cry says, "we have all the wrong ships, all the wrong guns, and nothing but the wrong; in their foolish constructive mania the admiralty have been building when they ought to have been waiting; they have heaped a curious museum of exploded inventions, but they have given us nothing serviceable". the two cries for opposite policies go on together, and blacken our executive together, though each is a defence of the executive against the other. again, the home department in england struggles with difficulties of which abroad they have long got rid. we love independent "local authorities," little centres of outlying authority. when the metropolitan executive most wishes to act, it cannot act effectually because these lesser bodies hesitate, deliberate, or even disobey. but local independence has no necessary connection with parliamentary government. the degree of local freedom desirable in a country varies according to many circumstances, and a parliamentary government may consist with any degree of it. we certainly ought not to debit parliamentary government as a general and applicable polity with the particular vices of the guardians of the poor in england, though it is so debited every day. again, as our administration has in england this peculiar difficulty, so on the other hand foreign competing administrations have a peculiar advantage. abroad a man under government is a superior being: he is higher than the rest of the world; he is envied by almost all of it. this gives the government the easy pick of the elite of the nation. all clever people are eager to be under government, and are hardly to be satisfied elsewhere. but in england there is no such superiority, and the english have no such feeling. we do not respect a stamp-office clerk, or an exciseman's assistant. a pursy grocer considers he is much above either. our government cannot buy for minor clerks the best ability of the nation in the cheap currency of pure honour, and no government is rich enough to buy very much of it in money. our mercantile opportunities allure away the most ambitious minds. the foreign bureaux are filled with a selection from the ablest men of the nation, but only a very few of the best men approach the english offices. but these are neither the only nor even the principal reasons why our public administration is not so good as, according to principle and to the unimpeded effects of parliamentary government, it should be. there are two great causes at work, which in their consequences run out into many details, but which in their fundamental nature may be briefly described. the first of these causes is our ignorance. no polity can get out of a nation more than there is in the nation. a free government is essentially a government by persuasion; and as are the people to be persuaded, and as are the persuaders, so will that government be. on many parts of our administration the effect of our extreme ignorance is at once plain. the foreign policy of england has for many years been, according to the judgment now in vogue, inconsequent, fruitless, casual; aiming at no distinct pre-imagined end, based on no steadily pre-conceived principle. i have not room to discuss with how much or how little abatement this decisive censure should be accepted. however, i entirely concede that our recent foreign policy has been open to very grave and serious blame. but would it not have been a miracle if the english people, directing their own policy, and being what they are, had directed a good policy? are they not above all nations divided from the rest of the world, insular both in situation and in mind, both for good and for evil? are they not out of the current of common european causes and affairs? are they not a race contemptuous of others? are they not a race with no special education or culture as to the modern world, and too often despising such culture? who could expect such a people to comprehend the new and strange events of foreign places? so far from wondering that the english parliament has been inefficient in foreign policy, i think it is wonderful, and another sign of the rude, vague imagination that is at the bottom of our people, that we have done so well as we have. again, the very conception of the english constitution, as distinguished from a purely parliamentary constitution is, that it contains "dignified" parts--parts, that is, retained, not for intrinsic use, but from their imaginative attraction upon an uncultured and rude population. all such elements tend to diminish simple efficiency. they are like the additional and solely-ornamental wheels introduced into the clocks of the middle ages, which tell the then age of the moon or the supreme constellation; which make little men or birds come out and in theatrically. all such ornamental work is a source of friction and error; it prevents the time being marked accurately; each new wheel is a new source of imperfection. so if authority is given to a person, not on account of his working fitness, but on account of his imaginative efficiency, he will commonly impair good administration. he may do something better than good work of detail, but will spoil good work of detail. the english aristocracy is often of this sort. it has an influence over the people of vast value still, and of infinite value formerly. but no man would select the cadets of an aristocratic house as desirable administrators. they have peculiar disadvantages in the acquisition of business knowledge, business training, and business habits, and they have no peculiar advantages. our middle class, too, is very unfit to give us the administrators we ought to have. i cannot now discuss whether all that is said against our education is well grounded; it is called by an excellent judge "pretentious, insufficient, and unsound". but i will say that it does not fit men to be men of business as it ought to fit them. till lately the very simple attainments and habits necessary for a banker's clerk had a scarcity-value. the sort of education which fits a man for the higher posts of practical life is still very rare; there is not even a good agreement as to what it is. our public officers cannot be as good as the corresponding officers of some foreign nations till our business education is as good as theirs.[9] [9] i am happy to state that this evil is much diminishing. the improvement of school education of the middle class in the last twenty-five years is marvellous. but strong as is our ignorance in deteriorating our administration, another cause is stronger still. there are but two foreign administrations probably better than ours, and both these have had something which we have not had. theirs in both cases were arranged by a man of genius, after careful forethought, and upon a special design. napoleon built upon a clear stage which the french revolution bequeathed him. the originality once ascribed to his edifice was indeed untrue; tocqueville and lavergne have shown that he did but run up a conspicuous structure in imitation of a latent one before concealed by the mediaeval complexities of the old regime. but what we are concerned with now is, not napoleon's originality, but his work. he undoubtedly settled the administration of france upon an effective, consistent, and enduring system; the succeeding governments have but worked the mechanism they inherited from him. frederick the great did the same in the new monarchy of prussia. both the french system and the prussian are new machines, made in civilised times to do their appropriate work. the english offices have never, since they were made, been arranged with any reference to one another; or rather they were never made, but grew as each could. the sort of free trade which prevailed in public institutions in the english middle ages is very curious. our three courts of law--the queen's bench, the common pleas, and the exchequer--for the sake of the fees extended an originally contracted sphere into the entire sphere of litigation. boni judicis est ampliare jursdictionem, went the old saying; or, in english, "it is the mark of a good judge to augment the fees of his court," his own income, and the income of his subordinates. the central administration, the treasury, never asked any account of the moneys the courts thus received; so long as it was not asked to pay anything, it was satisfied. only last year one of the many remnants of this system cropped up, to the wonder of the public. a clerk in the patent office stole some fees, and naturally the men of the nineteenth century thought our principal finance minister, the chancellor of the exchequer, would be, as in france, responsible for it. but the english law was different somehow. the patent office was under the lord chancellor, and the court of chancery is one of the multitude of our institutions which owe their existence to free competition, and so it was the lord chancellor's business to look after the fees, which of course, as an occupied judge, he could not. a certain act of parliament did indeed require that the fees of the patent office should be paid into the "exchequer"; and, again, the "chancellor of the exchequer" was thought to be responsible in the matter, but only by those who did not know. according to our system the chancellor of the exchequer is the enemy of the exchequer; a whole series of enactments try to protect it from him. until a few months ago there was a very lucrative sinecure called the "comptrollership of the exchequer," designed to guard the exchequer against its chancellor; and the last holder, lord monteagle, used to say he was the pivot of the english constitution. i have not room to explain what he meant, and it is not needful; what is to the purpose is that, by an inherited series of historical complexities, a defaulting clerk in an office of no litigation was not under natural authority, the finance minister, but under a far-away judge who had never heard of him. the whole office of the lord chancellor is a heap of anomalies. he is a judge, and it is contrary to obvious principle that any part of administration should be entrusted to a judge; it is of very grave moment that the administration of justice should be kept clear of any sinister temptations. yet the lord chancellor, our chief judge, sits in the cabinet, and makes party speeches in the lords. lord lyndhurst was a principal tory politician, and yet he presided in the o'connell case. lord westbury was in chronic wrangle with the bishops, but he gave judgment upon "essays and reviews". in truth, the lord chancellor became a cabinet minister, because, being near the person of the sovereign, he was high in court precedence, and not upon a political theory wrong or right. a friend once told me that an intelligent italian asked him about the principal english officers, and that he was very puzzled to explain their duties, and especially to explain the relation of their duties to their titles. i do not remember all the cases, but i can recollect that the italian could not comprehend why the first "lord of the treasury" had as a rule nothing to do with the treasury, or why the "woods and forests" looked after the sewerage of towns. this conversation was years before the cattle plague, but i should like to have heard the reasons why the privy council office had charge of that malady. of course one could give an historical reason, but i mean an administrative reason a reason which would show, not how it came to have the duty, but why in future it should keep it. but the unsystematic and casual arrangement of our public offices is not more striking than their difference of arrangement for the one purpose they have in common. they all, being under the ultimate direction of a parliamentary official, ought to have the best means of bringing the whole of the higher concerns of the office before that official. when the fresh mind rules, the fresh mind requires to be informed. and most business being rather alike, the machinery for bringing it before the extrinsic chief ought, for the most part, to be similar: at any rate, where it is different, it ought to be different upon reason; and where it is similar, similar upon reason. yet there are almost no two offices which are exactly alike in the defined relations of the permanent official to the parliamentary chief. let us see. the army and navy are the most similar in nature, yet there is in the army a permanent outside office, called the horse guards, to which there is nothing else like. in the navy, there is a curious anomaly--a board of admiralty, also changing with every government, which is to instruct the first lord in what he does not know. the relations between the first lord and the board have not always been easily intelligible, and those between the war office and the horse guards are in extreme confusion. even now a parliamentary paper relating to them has just been presented to the house of commons, which says the fundamental and ruling document cannot be traced beyond the possession of sir george lewis, who was secretary for war three years since; and the confused details are endless, as they must be in a chronic contention of offices. at the board of trade there is only the hypothesis of a board; it has long ceased to exist. even the president and vice-president do not regularly meet for the transaction of affairs. the patent of the latter is only to transact business in the absence of the president, and if the two are not intimate, and the president chooses to act himself, the vice-president sees no papers, and does nothing. at the treasury the shadow of a board exists, but its members have no power, and are the very officials whom canning said existed to make a house, to keep a house, and to cheer the ministers. the india office has a fixed "council"; but the colonial office which rules over our other dependencies and colonies, has not, and never had, the vestige of a council. any of these varied constitutions may be right, but all of them can scarcely be right. in truth the real constitution of a permanent office to be ruled by a permanent chief has been discussed only once in england: that case was a peculiar and anomalous one, and the decision then taken was dubious. a new india office, when the east india company was abolished, had to be made. the late mr. james wilson, a consummate judge of administrative affairs, then maintained that no council ought to be appointed eo nomine, but that the true council of a cabinet minister was a certain number of highly paid, much occupied, responsible secretaries, whom the minister could consult either separately or together, as, and when, he chose. such secretaries, mr. wilson maintained, must be able, for no minister will sacrifice his own convenience, and endanger his own reputation by appointing a fool to a post so near himself, and where he can do much harm. a member of a board may easily be incompetent; if some other members and the chairmen are able, the addition of one or two stupid men will not be felt; they will receive their salaries and do nothing. but a permanent under-secretary, charged with a real control over much important business, must be able, or his superior will be blamed, and there will be "a scrape in parliament". i cannot here discuss, nor am i competent to discuss, the best mode of composing public offices, and of adjusting them to a parliamentary head. there ought to be on record skilled evidence on the subject before a person without any specific experience can to any purpose think about it. but i may observe that the plan which mr. wilson suggested is that followed in the most successful part of our administration, the "ways and means" part. when the chancellor of the exchequer prepares a budget, he requires from the responsible heads of the revenue department their estimates of the public revenue upon the preliminary hypothesis that no change is made, but that last year's taxes will continue; if, afterwards, he thinks of making an alteration, he requires a report on that too. if he has to renew exchequer bills, or operate anyhow in the city, he takes the opinion, oral or written, of the ablest and most responsible person at the national debt office, and the ablest and most responsible at the treasury. mr. gladstone, by far the greatest chancellor of the exchequer of this generation, one of the very greatest of any generation, has often gone out of his way to express his obligation to these responsible skilled advisers. the more a man knows himself, the more habituated he is to action in general, the more sure he is to take and to value responsible counsel emanating from ability and suggested by experience. that this principle brings good fruit is certain. we have, by unequivocal admission, the best budget in the world. why should not the rest of our administration be as good if we did but apply the same method to it? i leave this to stand as it was originally written since it does not profess to rest on my own knowledge, and only offers a suggestion on good authority. recent experience seems, however, to show that in all great administrative departments there ought to be some one permanent responsible head through whom the changing parliamentary chief always acts, from whom he learns everything, and to whom he communicates everything. the daily work of the exchequer is a trifle compared with that of the admiralty or the home office, and therefore a single principal head is not there so necessary. but the preponderance of evidence at present is that in all offices of very great work some one such head is essential. no. vii. its supposed checks and balances. in a former essay i devoted an elaborate discussion to the comparison of the royal and unroyal form of parliamentary government. i showed that at the formation of a ministry, and during the continuance of a ministry, a really sagacious monarch might be of rare use. i ascertained that it was a mistake to fancy that at such times a constitutional monarch had no rule and no duties. but i proved likewise that the temper, the disposition, and the faculties then needful to fit a constitutional monarch for usefulness were very rare, at least as rare as the faculties of a great absolute monarch, and that a common man in that place is apt to do at least as much harm as good--perhaps more harm. but in that essay i could not discuss fully the functions of a king at the conclusion of an administration, for then the most peculiar parts of the english government--the power to dissolve the house of commons, and the power to create new peers--come into play, and until the nature of the house of lords and the nature of the house of commons had been explained, i had no premises for an argument as to the characteristic action of the king upon them. we have since considered the functions of the two houses, and also the effects of changes of ministry on our administrative system; we are now, therefore, in a position to discuss the functions of a king at the end of an administration. i may seem over formal in this matter, but i am very formal on purpose. it appears to me that the functions of our executive in dissolving the commons and augmenting the peers are among the most important, and the least appreciated, parts of our whole government, and that hundreds of errors have been made in copying the english constitution from not comprehending them. hobbes told us long ago, and everybody now understands, that there must be a supreme authority, a conclusive power, in every state on every point somewhere. the idea of government involves it--when that idea is properly understood. but there are two classes of governments. in one the supreme determining power is upon all points the same: in the other, that ultimate power is different upon different points--now resides in one part of the constitution and now in another. the americans thought that they were imitating the english in making their constitution upon the last principle--in having one ultimate authority for one sort of matter, and another for another sort. but in truth the english constitution is the type of the opposite species; it has only one authority for all sorts of matters. to gain a living conception of the difference let us see what the americans did. first, they altogether retained what, in part, they could not help, the sovereignty of the separate states. a fundamental article of the federal constitution says that the powers not "delegated" to the central government are "reserved to the states respectively". and the whole recent history of the union--perhaps all its history--has been more determined by that enactment than by any other single cause. the sovereignty of the principal matters of state has rested not with the highest government, but with the subordinate government. the federal government could not touch slavery--the "domestic institution" which divided the union into two halves, unlike one another in morals, politics, and social condition, and at last set them to fight. this determining political fact was not in the jurisdiction of the highest government in the country, where you might expect its highest wisdom, nor in the central government, where you might look for impartiality, but in local governments, where petty interests were sure to be considered, and where only inferior abilities were likely to be employed. the capital fact was reserved for the minor jurisdictions. again, there has been only one matter comparable to slavery in the united states, and that has been vitally affected by the state governments also. their ultra-democracy is not a result of federal legislation, but of state legislation. the federal constitution deputed one of the main items of its structure to the subordinate governments. one of its clauses provides that the suffrages for the federal house of representatives shall be, in each state, the same as for the most numerous branch of the legislature of that state; and as each state fixes the suffrage for its own legislatures, the states altogether fix the suffrage for the federal lower chamber. by another clause of the federal constitution the states fix the electoral qualification for voting at a presidential election. the primary element in a free government--the determination how many people shall have a share in it--in america depends not on the government but on certain subordinate local, and sometimes, as in the south now, hostile bodies. doubtless the framers of the constitution had not much choice in the matter. the wisest of them were anxious to get as much power for the central government, and to leave as little to the local governments as they could. but a cry was got up that this wisdom would create a tyranny and impair freedom, and with that help, local jealousy triumphed easily. all federal government is, in truth, a case in which what i have called the dignified elements of government do not coincide with the serviceable elements. at the beginning of every league the separate states are the old governments which attract and keep the love and loyalty of the people; the federal government is a useful thing, but new and unattractive. it must concede much to the state governments, for it is indebted to them for motive power: they are the governments which the people voluntarily obey. when the state governments are not thus loved, they vanish as the little italian and the little german potentates vanished; no federation is needed; a single central government rules all. but the division of the sovereign authority in the american constitution is far more complex than this. the part of that authority left to the federal government is itself divided and subdivided. the greatest instance is the most obvious. the congress rules the law, but the president rules the administration. one means of unity the constitution does give: the president can veto laws he does not like. but when two-thirds of both houses are unanimous (as has lately happened), they can overrule the president and make the laws without him; so here there are three separate repositories of the legislative power in different cases: first, congress and the president when they agree; next, the president when he effectually exerts his power; then the requisite two-thirds of congress when they overrule the president. and the president need not be over-active in carrying out a law he does not approve of. he may indeed be impeached for gross neglect; but between criminal non-feasance and zealous activity there are infinite degrees. mr. johnson does not carry out the freedman's bureau bill as mr. lincoln, who approved of it, would have carried it out. the american constitution has a special contrivance for varying the supreme legislative authority in different cases, and dividing the administrative authority from it in all cases. but the administrative power itself is not left thus simple and undivided. one most important part of administration is international policy, and the supreme authority here is not in the president, still less in the house of representatives, but in the senate. the president can only make treaties, "provided two-thirds of senators present" concur. the sovereignty therefore for the greatest international questions is in a different part of the state altogether from any common administrative or legislative question. it is put in a place by itself. again, the congress declares war, but they would find it very difficult, according to the recent construction of their laws, to compel the president to make a peace. the authors of the constitution doubtless intended that congress should be able to control the american executive as our parliament controls ours. they placed the granting of supplies in the house of representatives exclusively. but they forgot to look after "paper money"; and now it has been held that the president has power to emit such money without consulting congress at all. the first part of the late war was so carried on by mr. lincoln; he relied not on the grants of congress, but on the prerogative of emission. it sounds a joke, but it is true nevertheless, that this power to issue greenbacks is decided to belong to the president as commander-in-chief of the army; it is part of what was called the "war power". in truth money was wanted in the late war, and the administration got it in the readiest way; and the nation, glad not to be more taxed, wholly approved of it. but the fact remains that the president has now, by precedent and decision, a mighty power to continue a war without the consent of congress, and perhaps against its wish. against the united will of the american people a president would of course be impotent; such is the genius of the place and nation that he would never think of it. but when the nation was (as of late) divided into two parties, one cleaving to the president, the other to the congress, the now unquestionable power of the president to issue paper-money may give him the power to continue the war though parliament (as we should speak) may enjoin the war to cease. and lastly, the whole region of the very highest questions is withdrawn from the ordinary authorities of the state, and reserved for special authorities. the "constitution" cannot be altered by any authorities within the constitution, but only by authorities without it. every alteration of it, however urgent or however trifling, must be sanctioned by a complicated proportion of states or legislatures. the consequence is that the most obvious evils cannot be quickly remedied; that the most absurd fictions must be framed to evade the plain sense of mischievous clauses; that a clumsy working and curious technicality mark the politics of a rough-and-ready people. the practical arguments and the legal disquisitions in america are often like those of trustees carrying out a misdrawn will--the sense of what they mean is good, but it can never be worked out fully or defended simply, so hampered is it by the old words of an old testament. these instances (and others might be added) prove, as history proves too, what was the principal thought of the american constitution-makers. they shrank from placing sovereign power anywhere. they feared that it would generate tyranny; george iii. had been a tyrant to them, and come what might, they would not make a george iii. accredited theories said that the english constitution divided the sovereign authority, and in imitation the americans split up theirs. the result is seen now. at the critical moment of their history there is no ready, deciding power. the south, after a great rebellion, lies at the feet of its conquerors: its conquerors have to settle what to do with it.[10] they must decide the conditions upon which the secessionists shall again become fellow citizens, shall again vote, again be represented, again perhaps govern. the most difficult of problems is how to change late foes into free friends. the safety of their great public debt, and with that debt their future credit and their whole power in future wars, may depend on their not giving too much power to those who must see in the debt the cost of their own subjugation, and who must have an inclination towards the repudiation of it, now that their own debt--the cost of their defence--has been repudiated. a race, too, formerly enslaved, is now at the mercy of men who hate and despise it, and those who set it free are bound to give it a fair chance for new life. the slave was formerly protected by his chains; he was an article of value; but now he belongs to himself, no one but himself has an interest in his life; and he is at the mercy of the "mean whites," whose labour he depreciates, and who regard him with a loathing hatred. the greatest moral duty ever set before a government, and the most fearful political problem ever set before a government, are now set before the american. but there is no decision, and no possibility of a decision. the president wants one course, and has power to prevent any other; the congress wants another course, and has power to prevent any other. the splitting of sovereignty into many parts amounts to there being no sovereign. [10] this was written just after the close of the civil war, but i do not know that the great problem stated in it has as yet been adequately solved. the americans of 1787 thought they were copying the english constitution, but they were contriving a contrast to it. just as the american is the type of composite governments, in which the supreme power is divided between many bodies and functionaries, so the english is the type of simple constitutions, in which the ultimate power upon all questions is in the hands of the same persons. the ultimate authority in the english constitution is a newly-elected house of commons. no matter whether the question upon which it decides be administrative or legislative; no matter whether it concerns high matters of the essential constitution or small matters of daily detail; no matter whether it be a question of making a war or continuing a war; no matter whether it be the imposing a tax or the issuing a paper currency; no matter whether it be a question relating to india, or ireland, or london--a new house of commons can despotically and finally resolve. the house of commons may, as was explained, assent in minor matters to the revision of the house of lords, and submit in matters about which it cares little to the suspensive veto of the house of lords; but when sure of the popular assent, and when freshly elected, it is absolute, it can rule as it likes and decide as it likes. and it can take the best security that it does not decide in vain. it can ensure that its decrees shall be executed, for it, and it alone, appoints the executive; it can inflict the most severe of all penalties on neglect, for it can remove the executive. it can choose, to effect its wishes, those who wish the same; and so its will is sure to be done. a stipulated majority of both houses of the american congress can overrule by stated enactment their executive; but the popular branch of our legislature can make and unmake ours. the english constitution, in a word, is framed on the principle of choosing a single sovereign authority, and making it good; the american, upon the principle of having many sovereign authorities, and hoping that their multitude may atone for their inferiority. the americans now extol their institutions, and so defraud themselves of their due praise. but if they had not a genius for politics; if they had not a moderation in action singularly curious where superficial speech is so violent; if they had not a regard for law, such as no great people have yet evinced, and infinitely surpassing ours,--the multiplicity of authorities in the american constitution would long ago have brought it to a bad end. sensible shareholders, i have heard a shrewd attorney say, can work any deed of settlement; and so the men of massachusetts could, i believe, work any constitution.[11] but political philosophy must analyse political history; it must distinguish what is due to the excellence of the people, and what to the excellence of the laws; it must carefully calculate the exact effect of each part of the constitution, though thus it may destroy many an idol of the multitude, and detect the secret of utility where but few imagined it to lie. [11] of course i am not speaking here of the south and south-east, as they now are. how any free government is to exist in societies where so many bad elements are so much perturbed, i cannot imagine. how important singleness and unity are in political action no one, i imagine, can doubt. we may distinguish and define its parts; but policy is a unit and a whole. it acts by laws--by administrators; it requires now one, now the other; unless it can easily move both it will be impeded soon; unless it has an absolute command of both its work will be imperfect. the interlaced character of human affairs requires a single determining energy; a distinct force for each artificial compartment will make but a motley patchwork, if it live long enough to make anything. the excellence of the british constitution is that it has achieved this unity; that in it the sovereign power is single, possible, and good. the success is primarily due to the peculiar provision of the english constitution, which places the choice of the executive in the "people's house"; but it could not have been thoroughly achieved except for two parts, which i venture to call the "safety-valve" of the constitution, and the "regulator". the safety-valve is the peculiar provision of the constitution, of which i spoke at great length in my essay on the house of lords. the head of the executive can overcome the resistance of the second chamber by choosing new members of that chamber; if he do not find a majority, he can make a majority. this is a safety-valve of the truest kind. it enables the popular will--the will of which the executive is the exponent, the will of which it is the appointee--to carry out within the constitution desires and conceptions which one branch of the constitution dislikes and resists. it lets forth a dangerous accumulation of inhibited power, which might sweep this constitution before it, as like accumulations have often swept away like constitutions. the regulator, as i venture to call it, of our single sovereignty is the power of dissolving the otherwise sovereign chamber confided to the chief executive. the defects of the popular branch of a legislature as a sovereign have been expounded at length in a previous essay. briefly, they may be summed up in three accusations. first. caprice is the commonest and most formidable vice of a choosing chamber. wherever in our colonies parliamentary government is unsuccessful, or is alleged to be unsuccessful, this is the vice which first impairs it. the assembly cannot be induced to maintain any administration; it shifts its selection now from one minister to another minister, and in consequence there is no government at all. secondly. the very remedy for such caprice entails another evil. the only mode by which a cohesive majority and a lasting administration can be upheld in a parliamentary government, is party organisation; but that organisation itself tends to aggravate party violence and party animosity. it is, in substance, subjecting the whole nation to the rule of a section of the nation, selected because of its speciality. parliamentary government is, in its essence, a sectarian government, and is possible only when sects are cohesive. thirdly. a parliament, like every other sort of sovereign, has peculiar feelings, peculiar prejudices, peculiar interests; and it may pursue these in opposition to the desires, and even in opposition to the well-being of the nation. it has its selfishness as well as its caprice and its parties. the mode in which the regulating wheel of our constitution produces its effect is plain. it does not impair the authority of parliament as a species, but it impairs the power of the individual parliament. it enables a particular person outside parliament to say, "you members of parliament are not doing your duty. you are gratifying caprice at the cost of the nation. you are indulging party spirit at the cost of the nation. you are helping yourself at the cost of the nation. i will see whether the nation approves what you are doing or not; i will appeal from parliament no. 1 to parliament no. 2." by far the best way to appreciate this peculiar provision of our constitution is to trace it in action--to see, as we saw before of the other powers of english royalty, how far it is dependent on the existence of an hereditary king, and how far it can be exercised by a premier whom parliament elects. when we examine the nature of the particular person required to exercise the power, a vivid idea of that power is itself brought home to us. first. as to the caprice of parliament in the choice of a premier, who is the best person to check it? clearly the premier himself. he is the person most interested in maintaining his administration, and therefore the most likely person to use efficiently and dexterously the power by which it is to be maintained. the intervention of an extrinsic king occasions a difficulty. a capricious parliament may always hope that his caprice may coincide with theirs. in the days when george iii. assailed his governments, the premier was habitually deprived of his due authority. intrigues were encouraged because it was always dubious whether the king-hated minister would be permitted to appeal from the intriguers, and always a chance that the conspiring monarch might appoint one of the conspirators to be premier in his room. the caprice of parliament is better checked when the faculty of dissolution is entrusted to its appointee, than when it is set apart in an outlying and an alien authority. but, on the contrary, the party zeal and the self-seeking of parliament are best checked by an authority which has no connection with parliament or dependence upon it--supposing that such authority is morally and intellectually equal to the performance of the entrusted function. the prime minister obviously being the nominee of a party majority is likely to share its feeling, and is sure to be obliged to say that he shares it. the actual contact with affairs is indeed likely to purify him from many prejudices, to tame him of many fanaticisms, to beat out of him many errors. the present conservative government contains more than one member who regards his party as intellectually benighted; who either never speaks their peculiar dialect, or who speaks it condescendingly, and with an "aside"; who respects their accumulated prejudices as the "potential energies" on which he subsists, but who despises them while he lives by them. years ago mr. disraeli called sir robert peel's ministry--the last conservative ministry that had real power--"an organised hypocrisy," so much did the ideas of its "head" differ from the sensations of its "tail". probably he now comprehends--if he did not always--that the air of downing street brings certain ideas to those who live there, and that the hard, compact prejudices of opposition are soon melted and mitigated in the great gulf stream of affairs. lord palmerston, too, was a typical example of a leader lulling, rather than arousing, assuaging rather than acerbating the minds of his followers. but though the composing effect of close difficulties will commonly make a premier cease to be an immoderate partisan, yet a partisan to some extent he must be, and a violent one he may be; and in that case he is not a good person to check the party. when the leading sect (so to speak) in parliament is doing what the nation do not like, an instant appeal ought to be registered and parliament ought to be dissolved. but a zealot of a premier will not appeal; he will follow his formulae; he will believe he is doing good service when, perhaps, he is but pushing to unpopular consequences, the narrow maxims of an inchoate theory. at such a minute a constitutional king--such as leopold the first was, and as prince albert might have been--is invaluable; he can and will prevent parliament from hurting the nation. again, too, on the selfishness of parliament an extrinsic check is clearly more efficient than an intrinsic. a premier who is made by parliament may share the bad impulses of those who chose him; or, at any rate, he may have made "capital" out of them--he may have seemed to share them. the self-interests, the jobbing propensities of the assembly are sure indeed to be of very secondary interest to him. what he will care most for is the permanence, is the interest--whether corrupt or uncorrupt--of his own ministry. he will be disinclined to anything coarsely unpopular. in the order of nature, a new assembly must come before long, and he will be indisposed to shock the feelings of the electors from whom that assembly must emanate. but though the interest of the minister is inconsistent with appalling jobbery, he will be inclined to mitigated jobbery. he will temporise; he will try to give a seemly dress to unseemly matters: to do as much harm as will content the assembly, and yet not so much harm as will offend the nation. he will not shrink from becoming a particeps criminis; he will but endeavour to dilute the crime. the intervention of an extrinsic, impartial, and capable authority--if such can be found--will undoubtedly restrain the covetousness as well as the factiousness of a choosing assembly. but can such a head be found? in one case i think it has been found. our colonial governors are precisely dei ex machina. they are always intelligent, for they have to live by a different trade; they are nearly sure to be impartial, for they come from the ends of the earth; they are sure not to participate in the selfish desires of any colonial class or body, for long before those desires can have attained fruition they will have passed to the other side of the world, be busy with other faces and other minds, be almost out of hearing what happens in a region they have half forgotten. a colonial governor is a super-parliamentary authority, animated by a wisdom which is probably in quantity considerable, and is different from that of the local parliament, even if not above it. but even in this case the advantage of this extrinsic authority is purchased at a heavy price--a price which must not be made light of, because it is often worth paying. a colonial governor is a ruler who has no permanent interest in the colony he governs; who perhaps had to look for it in the map when he was sent thither; who takes years before he really understands its parties and its controversies; who, though without prejudice himself, is apt to be a slave to the prejudices of local people near him; who inevitably, and almost laudably, governs not in the interest of the colony, which he may mistake, but in his own interest, which he sees and is sure of. the first desire of a colonial governor is not to get into a "scrape," not to do anything which may give trouble to his superiors--the colonial office--at home, which may cause an untimely and dubious recall, which may hurt his after career. he is sure to leave upon the colony the feeling that they have a ruler who only half knows them, and does not so much as half care for them. we hardly appreciate this common feeling in our colonies, because we appoint their sovereign; but we should understand it in an instant if, by a political metamorphosis, the choice were turned the other way--if they appointed our sovereign. we should then say at once, "how is it possible a man from new zealand can understand england? how is it possible, that a man longing to get back to the antipodes can care for england? how can we trust one who lives by the fluctuating favour of a distant authority? how can we heartily obey one who is but a foreigner with the accident of an identical language?" i dwell on the evils which impair the advantage of colonial governorship because that is the most favoured case of super-parliamentary royalty, and because from looking at it we can bring freshly home to our minds what the real difficulties of that institution are. we are so familiar with it that we do not understand it. we are like people who have known a man all their lives, and yet are quite surprised when he displays some obvious characteristic which casual observers have detected at a glance. i have known a man who did not know what colour his sister's eyes were, though he had seen her every day for twenty years; or rather, he did not know because he had so seen her: so true is the philosophical maxim that we neglect the constant element in our thoughts, though it is probably the most important, and attend almost only to the varying elements--the differentiating elements (as men now speak)--though they are apt to be less potent. but when we perceive by the roundabout example of a colonial governor how difficult the task of a constitutional king is in the exercise of the function of dissolving parliament, we at once see how unlikely it is that an hereditary monarch will be possessed of the requisite faculties. an hereditary king is but an ordinary person, upon an average, at best; he is nearly sure to be badly educated for business; he is very little likely to have a taste for business; he is solicited from youth by every temptation to pleasure; he probably passed the whole of his youth in the vicious situation of the heir-apparent, who can do nothing because he has no appointed work, and who will be considered almost to outstep his function if he undertake optional work. for the most part, a constitutional king is a damaged common man; not forced to business by necessity as a despot often is, but yet spoiled for business by most of the temptations which spoil a despot. history, too, seems to show that hereditary royal families gather from the repeated influence of their corrupting situation some dark taint in the blood, some transmitted and growing poison which hurts their judgments, darkens all their sorrow, and is a cloud on half their pleasure. it has been said, not truly, but with a possible approximation to truth, "that in 1802 every hereditary monarch was insane". is it likely that this sort of monarchs will be able to catch the exact moment when, in opposition to the wishes of a triumphant ministry, they ought to dissolve parliament? to do so with efficiency they must be able to perceive that the parliament is wrong, and that the nation knows it is wrong. now to know that parliament is wrong, a man must be, if not a great statesman, yet a considerable statesman--a statesman of some sort. he must have great natural vigour, for no less will comprehend the hard principles of national policy. he must have incessant industry, for no less will keep him abreast with the involved detail to which those principles relate, and the miscellaneous occasions to which they must be applied. a man made common by nature, and made worse by life, is not likely to have either; he is nearly sure not to be both clever and industrious. and a monarch in the recesses of a palace, listening to a charmed flattery unbiassed by the miscellaneous world, who has always been hedged in by rank, is likely to be but a poor judge of public opinion. he may have an inborn tact for finding it out; but his life will never teach it him, and will probably enfeeble it in him. but there is a still worse case, a case which the life of george iii.--which is a sort of museum of the defects of a constitutional king--suggests at once. the parliament may be wiser than the people, and yet the king may be of the same mind with the people. during the last years of the american war, the premier, lord north, upon whom the first responsibility rested, was averse to continuing it, and knew it could not succeed. parliament was much of the same mind; if lord north had been able to come down to parliament with a peace in his hand, parliament would probably have rejoiced, and the nation under the guidance of parliament, though saddened by its losses, probably would have been satisfied. the opinion of that day was more like the american opinion of the present day than like our present opinion. it was much slower in its formation than our opinion now, and obeyed much more easily sudden impulses from the central administration. if lord north had been able to throw the undivided energy and the undistracted authority of the executive government into the excellent work of making a peace and carrying a peace, years of bloodshed might have been spared, and an entail of enmity cut off that has not yet run out. but there was a power behind the prime minister; george iii. was madly eager to continue the war, and the nation--not seeing how hopeless the strife was, not comprehending the lasting antipathy which their obstinacy was creating--ignorant, dull and helpless--was ready to go on too. even if lord north had wished to make peace, and had persuaded parliament accordingly, all his work would have been useless; a superior power could and would have appealed from a wise and pacific parliament to a sullen and warlike nation. the check which our constitution finds for the special vices of our parliament was misused to curb its wisdom. the more we study the nature of cabinet government, the more we shall shrink from exposing at a vital instant its delicate machinery to a blow from a casual, incompetent, and perhaps semi-insane outsider. the preponderant probability is that on a great occasion the premier and parliament will really be wiser than the king. the premier is sure to be able, and is sure to be most anxious to decide well; if he fail to decide, he loses his place, though through all blunders the king keeps his; the judgment of the man naturally very discerning is sharpened by a heavy penalty, from which the judgment of the man by nature much less intelligent is exempt. parliament, too, is for the most part a sound, careful and practical body of men. principle shows that the power of dismissing a government with which parliament is satisfied, and of dissolving that parliament upon an appeal to the people, is not a power which a common hereditary monarch will in the long run be able beneficially to exercise. accordingly this power has almost, if not quite, dropped out of the reality of our constitution. nothing, perhaps, would more surprise the english people than if the queen by a coup d'etat and on a sudden destroyed a ministry firm in the allegiance and secure of a majority in parliament. that power, indisputably, in theory, belongs to her; but it has passed so far away from the minds of men that it would terrify them, if she used it, like a volcanic eruption from primrose hill. the last analogy to it is not one to be coveted as a precedent. in 1835 william iv. dismissed an administration which, though disorganised by the loss of its leader in the commons, was an existing government, had a premier in the lords ready to go on, and a leader in the commons willing to begin. the king fancied that public opinion was leaving the whigs and going over to the tories, and he thought he should accelerate the transition by ejecting the former. but the event showed that he misjudged. his perception indeed was right; the english people were wavering in their allegiance to the whigs, who had no leader that touched the popular heart, none in whom liberalism could personify itself and become a passion--who besides were a body long used to opposition, and therefore making blunders in office--who were borne to power by a popular impulse which they only half comprehended, and perhaps less than half shared. but the king's policy was wrong; he impeded the reaction instead of aiding it. he forced on a premature tory government, which was as unsuccessful as all wise people perceived that it must be. the popular distaste to the whigs was as yet but incipient, inefficient; and the intervention of the crown was advantageous to them, because it looked inconsistent with the liberties of the people. and in so far as william iv. was right in detecting an incipient change of opinion, he did but detect an erroneous change. what was desirable was the prolongation of liberal rule. the commencing dissatisfaction did but relate to the personal demerits of the whig leaders, and other temporary adjuncts of free principles, and not to those principles intrinsically. so that the last precedent for a royal onslaught on a ministry ended thus:--in opposing the right principles, in aiding the wrong principles, in hurting the party it was meant to help. after such a warning, it is likely that our monarchs will pursue the policy which a long course of quiet precedent at present directs--they will leave a ministry trusted by parliament to the judgment of parliament. indeed, the dangers arising from a party spirit in parliament exceeding that of the nation, and of a selfishness in parliament contradicting the true interest of the nation, are not great dangers in a country where the mind of the nation is steadily political, and where its control over its representatives is constant. a steady opposition to a formed public opinion is hardly possible in our house of commons, so incessant is the national attention to politics, and so keen the fear in the mind of each member that he may lose his valued seat. these dangers belong to early and scattered communities, where there are no interesting political questions, where the distances are great, where no vigilant opinion passes judgment on parliamentary excesses, where few care to have seats in the chamber, and where many of those few are from their characters and their antecedents better not there than there. the one great vice of parliamentary government in an adult political nation, is the caprice of parliament in the choice of a ministry. a nation can hardly control it here; and it is not good that, except within wide limits, it should control it. the parliamentary judgment of the merits or demerits of an administration very generally depends on matters which the parliament, being close at hand, distinctly sees, and which the distant nation does not see. but where personality enters, capriciousness begins. it is easy to imagine a house of commons which is discontented with all statesmen, which is contented with none, which is made up of little parties, which votes in small knots, which will adhere steadily to no leader, which gives every leader a chance and a hope. such parliaments require the imminent check of possible dissolution; but that check is (as has been shown) better in the premier than in the sovereign; and by the late practice of our constitution, its use is yearly ebbing from the sovereign, and yearly centring in the premier. the queen can hardly now refuse a defeated minister the chance of a dissolution, any more than she can dissolve in the time of an undefeated one, and without his consent. we shall find the case much the same with the safety-valve, as i have called it, of our constitution. a good, capable, hereditary monarch would exercise it better than a premier, but a premier could manage it well enough; and a monarch capable of doing better will be born only once in a century, whereas monarchs likely to do worse will be born every day. there are two modes in which the power of our executive to create peers--to nominate, that is, additional members of our upper and revising chamber--now acts: one constant, habitual, though not adequately noticed by the popular mind as it goes on; and the other possible and terrific, scarcely ever really exercised, but always by its reserved magic maintaining a great and a restraining influence. the crown creates peers, a few year by year, and thus modifies continually the characteristic feeling of the house of lords. i have heard people say, who ought to know, that the english peerage (the only one upon which unhappily the power of new creation now acts) is now more whig than tory. thirty years ago the majority was indisputably the other way. owing to very curious circumstances english parties have not alternated in power, as a good deal of speculation predicts they would, and a good deal of current language assumes they have. the whig party were in office some seventy years (with very small breaks) from the death of queen anne to the coalition between lord north and mr. fox; then the tories (with only such breaks), were in power for nearly fifty years, till 1832; and since, the whig party has always, with very trifling intervals, been predominant. consequently, each continuously-governing party has had the means of modifying the upper house to suit its views. the profuse tory creations of half a century had made the house of lords bigotedly tory before the first reform act, but it is wonderfully mitigated now. the irish peers and scotch peers--being nominated by an almost unaltered constituency, and representing the feelings of the majority of that constituency only (no minority having any voice)--present an unchangeable tory element. but the element in which change is permitted has been changed. whether the english peerage be or be not predominantly now tory, it is certainly not tory after the fashion of the toryism of 1832. the whig additions have indeed sprung from a class commonly rather adjoining upon toryism, than much inclining to radicalism. it is not from men of large wealth that a very great impetus to organic change should be expected. the additions to the peers have matched nicely enough with the old peers, and therefore they have effected more easily a greater and more permeating modification. the addition of a contrasting mass would have excited the old leaven, but the delicate infusion of ingredients similar in genus, though different in species, has modified the new compound without irritating the old original. this ordinary and common use of the peer-creating power is always in the hands of the premier, and depends for its characteristic use on being there. he, as the head of the predominant party, is the proper person to modify gradually the permanent chamber which, perhaps, was at starting hostile to him; and, at any rate, can be best harmonised with the public opinion he represents by the additions he makes. hardly any contrived constitution possesses a machinery for modifying its secondary house so delicate, so flexible, and so constant. if the power of creating life peers had been added, the mitigating influence of the responsible executive upon the house of lords would have been as good as such a thing can be. the catastrophic creation of peers for the purpose of swamping the upper house is utterly different. if an able and impartial exterior king is at hand, this power is best in that king. it is a power only to be used on great occasions, when the object is immense, and the party strife unmitigated. this is the conclusive, the swaying power of the moment, and of course, therefore, it had better be in the hands of a power both capable and impartial, than of a premier who must in some degree be a partisan. the value of a discreet, calm, wise monarch, if such should happen to be reigning at the acute crisis of a nation's destiny, is priceless. he may prevent years of tumult, save bloodshed and civil war, lay up a store of grateful fame to himself, prevent the accumulated intestine hatred of each party to its opposite. but the question comes back, will there be such a monarch just then? what is the chance of having him just then? what will be the use of the monarch whom the accidents of inheritance, such as we know them to be, must upon an average bring us just then? the answer to these questions is not satisfactory, if we take it from the little experience we have had in this rare matter. there have been but two cases at all approaching to a catastrophic creation of peers--to a creation which would suddenly change the majority of the lords--in english history. one was in queen anne's time. the majority of peers in queen anne's time were whig, and by profuse and quick creations harley's ministry changed it to a tory majority. so great was the popular effect, that in the next reign one of the most contested ministerial proposals was a proposal to take the power of indefinite peer creation from the crown, and to make the number of lords fixed, as that of the commons is fixed. but the sovereign had little to do with the matter. queen anne was one of the smallest people ever set in a great place. swift bitterly and justly said "she had not a store of amity by her for more than one friend at a time," and just then her affection was concentrated on a waiting-maid. her waiting-maid told her to make peers, and she made them. but of large thought and comprehensive statesmanship she was as destitute as mrs. masham. she supported a bad ministry by the most extreme of measures, and she did it on caprice. the case of william iv. is still more instructive. he was a very conscientious king, but at the same time an exceedingly weak king. his correspondence with lord grey on this subject fills more than half a large volume, or rather his secretary's correspondence, for he kept a very clever man to write what he thought, or at least what those about him thought. it is a strange instance of high-placed weakness and conscientious vacillation. after endless letters the king consents to make a reasonable number of peers if required to pass the second reading of the reform bill, but owing to desertion of the "waverers" from the tories, the second reading is carried without it by nine, and then the king refuses to make peers, or at least enough peers when a vital amendment is carried by lord lyndhurst, which would have destroyed, and was meant to destroy the bill. in consequence, there was a tremendous crisis and nearly a revolution. a more striking example of well-meaning imbecility is scarcely to be found in history. no one who reads it carefully will doubt that the discretionary power of making peers would have been far better in lord grey's hands than in the king's. it was the uncertainty whether the king would exercise it, and how far he would exercise it, that mainly animated the opposition. in fact, you may place power in weak hands at a revolution, but you cannot keep it in weak hands. it runs out of them into strong ones. an ordinary hereditary sovereign--a william iv., or a george iv.--is unfit to exercise the peer-creating power when most wanted. a half-insane king, like george iii., would be worse. he might use it by unaccountable impulse when not required, and refuse to use it out of sullen madness when required. the existence of a fancied check on the premier is in truth an evil, because it prevents the enforcement of a real check. it would be easy to provide by law that an extraordinary number of peers--say more than ten annually--should not be created except on a vote of some large majority, suppose three-fourths of the lower house. this would ensure that the premier should not use the reserve force of the constitution as if it were an ordinary force; that he should not use it except when the whole nation fixedly wished it; that it should be kept for a revolution, not expended on administration; and it would ensure that he should then have it to use. queen anne's case and william iv.'s case prove that neither object is certainly attained by entrusting this critical and extreme force to the chance idiosyncrasies and habitual mediocrity of an hereditary sovereign. it may be asked why i argue at such length a question in appearance so removed from practice, and in one point of view so irrelevant to my subject. no one proposes to remove queen victoria; if any one is in a safe place on earth, she is in a safe place. in these very essays it has been shown that the mass of our people would obey no one else, that the reverence she excites is the potential energy--as science now speaks--out of which all minor forces are made, and from which lesser functions take their efficiency. but looking not to the present hour, and this single country, but to the world at large and coming times, no question can be more practical. what grows upon the world is a certain matter-of-factness. the test of each century, more than of the century before, is the test of results. new countries are arising all over the world where there are no fixed sources of reverence; which have to make them; which have to create institutions which must generate loyalty by conspicuous utility. this matter-of-factness is the growth even in europe of the two greatest and newest intellectual agencies of our time. one of these is business. we see so much of the material fruits of commerce that we forget its mental fruits. it begets a mind desirous of things, careless of ideas, not acquainted with the niceties of words. in all labour there should be profit, is its motto. it is not only true that we have "left swords for ledgers," but war itself is made as much by the ledger as by the sword. the soldier--that is, the great soldier--of to-day is not a romantic animal, dashing at forlorn hopes, animated by frantic sentiment, full of fancies as to a lady-love or a sovereign; but a quiet, grave man, busied in charts, exact in sums, master of the art of tactics, occupied in trivial detail; thinking, as the duke of wellington was said to do, most of the shoes of his soldiers; despising all manner of eclat and eloquence; perhaps, like count moltke, "silent in seven languages". we have reached a "climate" of opinion where figures rule, where our very supporter of divine right, as we deemed him, our count bismarck, amputates kings right and left, applies the test of results to each, and lets none live who are not to do something. there has in truth been a great change during the last five hundred years in the predominant occupations of the ruling part of mankind; formerly they passed their time either in exciting action or inanimate repose. a feudal baron had nothing between war and the chase--keenly animating things both--and what was called "inglorious ease". modern life is scanty in excitements, but incessant in quiet action. its perpetual commerce is creating a "stock-taking" habit--the habit of asking each man, thing, and institution, "well, what have you done since i saw you last?" our physical science, which is becoming the dominant culture of thousands, and which is beginning to permeate our common literature to an extent which few watch enough, quite tends the same way. the two peculiarities are its homeliness and its inquisitiveness; its value for the most "stupid" facts, as one used to call them, and its incessant wish for verification--to be sure, by tiresome seeing and hearing, that they are facts. the old excitement of thought has half died out, or rather it is diffused in quiet pleasure over a life instead of being concentrated in intense and eager spasms. an old philosopher--a descartes, suppose--fancied that out of primitive truths, which he could by ardent excogitation know, he might by pure deduction evolve the entire universe. intense self-examination, and intense reason would, he thought, make out everything. the soul "itself by itself," could tell all it wanted if it would be true to its sublimer isolation. the greatest enjoyment possible to man was that which this philosophy promises its votaries--the pleasure of being always right, and always reasoning--without ever being bound to look at anything. but our most ambitious schemes of philosophy now start quite differently. mr. darwin begins:-"when on board h.m.s. beagle, as naturalist, i was much struck with certain facts in the distribution of the organic beings inhabiting south america, and in the geological relations of the present to the past inhabitants of that continent. these facts, as will be seen in the latter chapters of this volume, seemed to throw some light on the origin of species--that mystery of mysteries, as it has been called by one of our greatest philosophers. on my return home, it occurred to me, in 1837, that something might perhaps be made out on this question by patiently accumulating and reflecting on all sorts of facts which could possibly have any bearing on it. after five years' work i allowed myself to speculate on the subject, and drew up some short notes; these i enlarged in 1844 into a sketch of the conclusions which then seemed to me probable: from that period to the present day i have steadily pursued the same object. i hope that i may be excused for entering on these personal details, as i give them to show that i have not been hasty in coming to a decision." if he hopes finally to solve his great problem, it is by careful experiments in pigeon-fancying, and other sorts of artificial variety-making. his hero is not a self-enclosed, excited philosopher, but "that most skilful breeder, sir john sebright, who used to say, with respect to pigeons, that he would produce any given feathers in three years, but it would take him six years to obtain a head and a beak". i am not saying that the new thought is better than the old; it is no business of mine to say anything about that; i only wish to bring home to the mind, as nothing but instances can bring it home, how matter-of-fact, how petty, as it would at first sight look, even our most ambitious science has become. in the new communities which our emigrating habit now constantly creates, this prosaic turn of mind is intensified. in the american mind and in the colonial mind there is, as contrasted with the old english mind, a literalness, a tendency to say, "the facts are so-and-so, whatever may be thought or fancied about them". we used before the civil war to say that the americans worshipped the almighty dollar; we now know that they can scatter money almost recklessly when they will. but what we meant was half right--they worship visible value: obvious, undeniable, intrusive result. and in australia and new zealand the same turn comes uppermost. it grows from the struggle with the wilderness. physical difficulty is the enemy of early communities, and an incessant conflict with it for generations leaves a mark of reality on the mind--a painful mark almost to us, used to impalpable fears and the half-fanciful dangers of an old and complicated society. the "new englands" of all latitudes are bare-minded (if i may so say) as compared with the "old". when, therefore, the new communities of the colonised world have to choose a government, they must choose one in which all the institutions are of an obvious evident utility. we catch the americans smiling at our queen with her secret mystery, and our prince of wales with his happy inaction. it is impossible, in fact, to convince their prosaic minds that constitutional royalty is a rational government, that it is suited to a new age and an unbroken country, that those who start afresh can start with it. the princelings who run about the world with excellent intentions, but an entire ignorance of business, are to them a locomotive advertisement that this sort of government is european in its limitations and mediaeval in its origin; that though it has yet a great part to play in the old states, it has no place or part in new states. the realisme impitoyable which good critics find in a most characteristic part of the literature of the nineteenth century, is to be found also in its politics. an ostentatious utility must characterise its creations. the deepest interest, therefore, attaches to the problem of this essay. if hereditary royalty had been essential to parliamentary government, we might well have despaired of that government. but accurate investigation shows that this royalty is not essential; that, upon an average, it is not even in a high degree useful; that though a king with high courage and fine discretion--a king with a genius for the place--is always useful, and at rare moments priceless, yet that a common king, a king such as birth brings, is of no use at difficult crises, while in the common course of things his aid is neither likely nor required--he will do nothing, and he need do nothing. but we happily find that a new country need not fall back into the fatal division of powers incidental to a presidential government; it may, if other conditions serve, obtain the ready, well-placed, identical sort of sovereignty which belongs to the english constitution, under the unroyal form of parliamentary government. no. viii. the prerequisites of cabinet government, and the peculiar form which they have assumed in england. cabinet government is rare because its prerequisites are many. it requires the co-existence of several national characteristics which are not often found together in the world, and which should be perceived more distinctly than they often are. it is fancied that the possession of a certain intelligence, and a few simple virtues, are the sole requisites. the mental and moral qualities are necessary, but much else is necessary also. a cabinet government is the government of a committee selected by the legislature, and there are therefore a double set of conditions to it: first, those which are essential to all elective governments as such; and second, those which are requisite to this particular elective government. there are prerequisites for the genus, and additional ones for the species. the first prerequisite of elective government is the mutual confidence of the electors. we are so accustomed to submit to be ruled by elected ministers, that we are apt to fancy all mankind would readily be so too. knowledge and civilisation have at least made this progress, that we instinctively, without argument, almost without consciousness, allow a certain number of specified persons to choose our rulers for us. it seems to us the simplest thing in the world. but it is one of the gravest things. the peculiar marks of semi-barbarous people are diffused distrust and indiscriminate suspicion. people, in all but the most favoured times and places, are rooted to the places where they were born, think the thoughts of those places, can endure no other thoughts. the next parish even is suspected. its inhabitants have different usages, almost imperceptibly different, but yet different; they speak a varying accent; they use a few peculiar words; tradition says that their faith is dubious. and if the next parish is a little suspected, the next county is much more suspected. here is a definite beginning of new maxims, new thoughts, new ways: the immemorial boundary mark begins in feeling a strange world. and if the next county is dubious, a remote county is untrustworthy. "vagrants come from thence," men know, and they know nothing else. the inhabitants of the north speak a dialect different from the dialect of the south: they have other laws, another aristocracy, another life. in ages when distant territories are blanks in the mind, when neighbourhood is a sentiment, when locality is a passion, concerted co-operation between remote regions is impossible even on trivial matters. neither would rely enough upon the good faith, good sense, and good judgment of the other. neither could enough calculate on the other. and if such co-operation is not to be expected in trivial matters, it is not to be thought of in the most vital matter of government--the choice of the executive ruler. to fancy that northumberland in the thirteenth century would have consented to ally itself with somersetshire for the choice of a chief magistrate is absurd; it would scarcely have allied itself to choose a hangman. even now, if it were palpably explained, neither district would like it. but no one says at a county election, "the object of this present meeting is to choose our delegate to what the americans call the 'electoral college,' to the assembly which names our first magistrate--our substitute for their president. representatives from this county will meet representatives from other counties, from cities and boroughs, and proceed to choose our rulers." such bald exposition would have been impossible in old times; it would be considered queer, eccentric, if it were used now. happily, the process of election is so indirect and hidden, and the introduction of that process was so gradual and latent, that we scarcely perceive the immense political trust we repose in each other. the best mercantile credit seems to those who give it, natural, simple, obvious; they do not argue about it, or think about it. the best political credit is analogous; we trust our countrymen without remembering that we trust them. a second and very rare condition of an elective government is a calm national mind--a tone of mind sufficiently staple to bear the necessary excitement of conspicuous revolutions. no barbarous, no semi-civilised nation has ever possessed this. the mass of uneducated men could not now in england be told "go to, choose your rulers;" they would go wild; their imaginations would fancy unreal dangers, and the attempt at election would issue in some forcible usurpation. the incalculable advantage of august institutions in a free state is, that they prevent this collapse. the excitement of choosing our rulers is prevented by the apparent existence of an unchosen ruler. the poorer and more ignorant classes--those who would most feel excitement, who would most be misled by excitement--really believe that the queen governs. you could not explain to them the recondite difference between "reigning" and "governing"; the words necessary to express it do not exist in their dialect; the ideas necessary to comprehend it do not exist in their minds. the separation of principal power from principal station is a refinement which they could not even conceive. they fancy they are governed by an hereditary queen, a queen by the grace of god, when they are really governed by a cabinet and a parliament--men like themselves, chosen by themselves. the conspicuous dignity awakens the sentiment of reverence, and men, often very undignified, seize the occasion to govern by means of it. lastly. the third condition of all elective government is what i may call rationality, by which i mean a power involving intelligence, but yet distinct from it. a whole people electing its rulers must be able to form a distinct conception of distant objects. mostly, the "divinity" that surrounds a king altogether prevents anything like a steady conception of him. you fancy that the object of your loyalty is as much elevated above you by intrinsic nature as he is by extrinsic position; you deify him in sentiment, as once men deified him in doctrine. this illusion has been and still is of incalculable benefit to the human race. it prevents, indeed, men from choosing their rulers; you cannot invest with that loyal illusion a man who was yesterday what you are, who to-morrow may be so again, whom you chose to be what he is. but though this superstition prevents the election of rulers, it renders possible the existence of unelected rulers. untaught people fancy that their king, crowned with the holy crown, anointed with the oil of rheims, descended of the house of plantagenet, is a different sort of being from any one not descended of the royal house--not crowned--not anointed. they believe that there is one man whom by mystic right they should obey; and therefore they do obey him. it is only in later times, when the world is wider, its experience larger, and its thought colder, that the plain rule of a palpably chosen ruler is even possible. these conditions narrowly restrict elective government. but the prerequisites of a cabinet government are rarer still; it demands not only the conditions i have mentioned, but the possibility likewise of a good legislature--a legislature competent to elect a sufficient administration. now a competent legislature is very rare. any permanent legislature at all, any constantly acting mechanism for enacting and repealing laws, is, though it seems to us so natural, quite contrary to the inveterate conceptions of mankind. the great majority of nations conceive of their law, either as something divinely given, and therefore unalterable, or as a fundamental habit, inherited from the past to be transmitted to the future. the english parliament, of which the prominent functions are now legislative, was not all so once. it was rather a preservative body. the custom of the realm--the aboriginal transmitted law--the law which was in the breast of the judges, could not be altered without the consent of parliament, and therefore everybody felt sure it would not be altered except in grave, peculiar, and anomalous cases. the valued use of parliament was not half so much to alter the law, as to prevent the laws being altered. and such too was its real use. in early societies it matters much more that the law should be fixed than that it should be good. any law which the people of ignorant times enact is sure to involve many misconceptions, and to cause many evils. perfection in legislation is not to be looked for, and is not, indeed, much wanted in a rude, painful, confined life. but such an age covets fixity. that men should enjoy the fruits of their labour, that the law of property should be known, that the law of marriage should be known, that the whole course of life should be kept in a calculable track is the summum bonum of early ages, the first desire of semi-civilised mankind. in that age men do not want to have their laws adapted, but to have their laws steady. the passions are so powerful, force so eager, the social bond so weak, that the august spectacle of an all but unalterable law is necessary to preserve society. in the early stages of human society all change is thought an evil. and most change is an evil. the conditions of life are so simple and so unvarying that any decent sort of rules suffice so long as men know what they are. custom is the first check on tyranny; that fixed routine of social life at which modern innovations chafe, and by which modern improvement is impeded, is the primitive check on base power. the perception of political expediency has then hardly begun; the sense of abstract justice is weak and vague; and a rigid adherence to the fixed mould of transmitted usage is essential to an unmarred, unspoiled, unbroken life. in such an age a legislature continuously sitting, always making laws, always repealing laws, would have been both an anomaly and a nuisance. but in the present state of the civilised part of the world such difficulties are obsolete. there is a diffused desire in civilised communities for an adjusting legislation; for a legislation which should adapt the inherited laws to the new wants of a world which now changes every day. it has ceased to be necessary to maintain bad laws because it is necessary to have some laws. civilisation is robust enough to bear the incision of legal improvements. but taking history at large, the rarity of cabinets is mostly due to the greater rarity of continuous legislatures. other conditions, however, limit even at the present day the area of a cabinet government. it must be possible to have not only a legislature, but to have a competent legislature--a legislature willing to elect and willing to maintain an efficient executive. and this is no easy matter. it is indeed true that we need not trouble ourselves to look for that elaborate and complicated organisation which partially exists in the house of commons, and which is more fully and freely expanded in plans for improving the house of commons. we are not now concerned with perfection or excellence; we seek only for simple fitness and bare competency. the conditions of fitness are two. first, you must get a good legislature; and next, you must keep it good. and these are by no means so nearly connected as might be thought at first sight. to keep a legislature efficient, it must have a sufficient supply of substantial business. if you employ the best set of men to do nearly nothing, they will quarrel with each other about that nothing. where great questions end, little parties begin. and a very happy community, with few new laws to make, few old bad laws to repeal, and but simple foreign relations to adjust, has great difficulty in employing a legislature. there is nothing for it to enact, and nothing for it to settle. accordingly, there is great danger that the legislature, being debarred from all other kind of business, may take to quarrelling about its elective business; that controversies as to ministries may occupy all its time, and yet that time be perniciously employed; that a constant succession of feeble administrations, unable to govern and unfit to govern, may be substituted for the proper result of cabinet government--a sufficient body of men long enough in power to evince their sufficiency. the exact amount of non-elective business necessary for a parliament which is to elect the executive cannot, of course, be formally stated. there are no numbers and no statistics in the theory of constitutions. all we can say is, that a parliament with little business, which is to be as efficient as a parliament with much business, must be in all other respects much better. an indifferent parliament may be much improved by the steadying effect of grave affairs; but a parliament which has no such affairs must be intrinsically excellent, or it will fail utterly. but the difficulty of keeping a good legislature, is evidently secondary to the difficulty of first getting it. there are two kinds of nations which can elect a good parliament. the first is a nation in which the mass of the people are intelligent, and in which they are comfortable. where there is no honest poverty, where education is diffused, and political intelligence is common, it is easy for the mass of the people to elect a fair legislature. the idea is roughly realised in the north american colonies of england, and in the whole free states of the union. in these countries there is no such thing as honest poverty; physical comfort, such as the poor cannot imagine here, is there easily attainable by healthy industry. education is diffused much, and is fast spreading, ignorant emigrants from the old world often prize the intellectual advantages of which they are themselves destitute, and are annoyed at their inferiority in a place where rudimentary culture is so common. the greatest difficulty of such new communities is commonly geographical. the population is mostly scattered; and where population is sparse, discussion is difficult. but in a country very large, as we reckon in europe, a people really intelligent, really educated, really comfortable, would soon form a good opinion. no one can doubt that the new england states, if they were a separate community, would have an education, a political capacity, and an intelligence such as the numerical majority of no people, equally numerous, has ever possessed. in a state of this sort, where all the community is fit to choose a sufficient legislature, it is possible, it is almost easy, to create that legislature. if the new england states possessed a cabinet government as a separate nation, they would be as renowned in the world for political sagacity as they now are for diffused happiness. the structure of these communities is indeed based on the principle of equality, and it is impossible that any such community can wholly satisfy the severe requirements of a political theorist. in every old community its primitive and guiding assumption is at war with truth. by its theory all people are entitled to the same political power, and they can only be so entitled on the ground that in politics they are equally wise. but at the outset of an agricultural colony this postulate is as near the truth as politics want. there are in such communities no large properties, no great capitals, no refined classes--every one is comfortable and homely, and no one is at all more. equality is not artificially established in a new colony; it establishes itself. there is a story that among the first settlers in western australia, some, who were rich, took out labourers at their own expense, and also carriages to ride in. but soon they had to try if they could live in the carriages. before the masters' houses were built, the labourers had gone off--they were building houses and cultivating land for themselves, and the masters were left to sit in their carriages. whether this exact thing happened i do not know, but this sort of thing has happened a thousand times. there has been a whole series of attempts to transplant to the colonies a graduated english society. but they have always failed at the first step. the rude classes at the bottom felt that they were equal to or better than the delicate classes at the top; they shifted for themselves, and left the "gentle-folks" to shift for themselves; the base of the elaborate pyramid spread abroad, and the apex tumbled in and perished. in the early ages of an agricultural colony, whether you have political democracy or not, social democracy you must have, for nature makes it, and not you. but in time, wealth grows and inequality begins. a and his children are industrious, and prosper; b and his children are idle, and fail. if manufactures on a considerable scale are established--and most young communities strive even by protection to establish them--the tendency to inequality is intensified. the capitalist becomes a unit with much, and his labourers a crowd with little. after generations of education, too, there arise varieties of culture--there will be an upper thousand, or ten thousand, of highly cultivated people in the midst of a great nation of moderately educated people. in theory it is desirable that this highest class of wealth and leisure should have an influence far out of proportion to its mere number: a perfect constitution would find for it a delicate expedient to make its fine thought tell upon the surrounding cruder thought. but as the world goes, when the whole of the population is as instructed and as intelligent as in the case i am supposing, we need not care much about this. great communities have scarcely ever--never save for transient moments--been ruled by their highest thought. and if we can get them ruled by a decent capable thought, we may be well enough contented with our work. we have done more than could be expected, though not all which could be desired. at any rate, an isocratic polity--a polity where every one votes, and where every one votes alike--is, in a community of sound education and diffused intelligence, a conceivable case of cabinet government. it satisfies the essential condition; there is a people able to elect, a parliament able to choose. but suppose the mass of the people are not able to elect--and this is the case with the numerical majority of all but the rarest nations--how is a cabinet government to be then possible? it is only possible in what i may venture to call deferential nations. it has been thought strange, but there are nations in which the numerous unwiser part wishes to be ruled by the less numerous wiser part. the numerical majority--whether by custom or by choice, is immaterial--is ready, is eager to delegate its power of choosing its ruler to a certain select minority. it abdicates in favour of its elite, and consents to obey whoever that elite may confide in. it acknowledges as its secondary electors--as the choosers of its government--an educated minority, at once competent and unresisted; it has a kind of loyalty to some superior persons who are fit to choose a good government, and whom no other class opposes. a nation in such a happy state as this has obvious advantages for constructing a cabinet government. it has the best people to elect a legislature, and therefore it may fairly be expected to choose a good legislature--a legislature competent to select a good administration. england is the type of deferential countries, and the manner in which it is so, and has become so, is extremely curious. the middle classes--the ordinary majority of educated men--are in the present day the despotic power in england. "public opinion," nowadays, "is the opinion of the bald-headed man at the back of the omnibus." it is not the opinion of the aristocratical classes as such; or of the most educated or refined classes as such; it is simply the opinion of the ordinary mass of educated, but still commonplace mankind. if you look at the mass of the constituencies, you will see that they are not very interesting people; and perhaps if you look behind the scenes and see the people who manipulate and work the constituencies, you will find that these are yet more uninteresting. the english constitution in its palpable form is this--the mass of the people yield obedience to a select few; and when you see this select few, you perceive that though not of the lowest class, nor of an unrespectable class, they are yet of a heavy sensible class--the last people in the world to whom, if they were drawn up in a row, an immense nation would ever give an exclusive preference. in fact, the mass of the english people yield a deference rather to something else that to their rulers. they defer to what we may call the theatrical show of society. a certain state passes before them; a certain pomp of great men; a certain spectacle of beautiful women; a wonderful scene of wealth and enjoyment is displayed, and they are coerced by it. their imagination is bowed down; they feel they are not equal to the life which is revealed to them. courts and aristocracies have the great quality which rules the multitude, though philosophers can see nothing in it--visibility. courtiers can do what others cannot. a common man may as well try to rival the actors on the stage in their acting, as the aristocracy in their acting. the higher world, as it looks from without, is a stage on which the actors walk their parts much better than the spectators can. this play is played in every district. every rustic feels that his house is not like my lord's house; his life like my lord's life; his wife like my lady. the climax of the play is the queen: nobody supposes that their house is like the court; their life like her life; her orders like their orders. there is in england a certain charmed spectacle which imposes on the many, and guides their fancies as it will. as a rustic on coming to london finds himself in presence of a great show and vast exhibition of inconceivable mechanical things, so by the structure of our society, he finds himself face to face with a great exhibition of political things which he could not have imagined, which he could not make--to which he feels in himself scarcely anything analogous. philosophers may deride this superstition, but its results are inestimable. by the spectacle of this august society, countless ignorant men and women are induced to obey the few nominal electors--the ll0 borough renters, and the l50 county renters--who have nothing imposing about them, nothing which would attract the eye or fascinate the fancy. what impresses men is not mind, but the result of mind. and the greatest of these results is this wonderful spectacle of society, which is ever new, and yet ever the same; in which accidents pass and essence remains; in which one generation dies and another succeeds, as if they were birds in a cage, or animals in a menagerie; of which it seems almost more than a metaphor to treat the parts as limbs of a perpetual living thing, so silently do they seem to change, so wonderfully and so perfectly does the conspicuous life of the new year take the place of the conspicuous life of last year. the apparent rulers of the english nation are like the most imposing personages of a splendid procession: it is by them the mob are influenced; it is they whom the spectators cheer. the real rulers are secreted in second-rate carriages; no one cares for them or asks about them, but they are obeyed implicitly and unconsciously by reason of the splendour of those who eclipsed and preceded them. it is quite true that this imaginative sentiment is supported by a sensation of political satisfaction. it cannot be said that the mass of the english people are well off. there are whole classes who have not a conception of what the higher orders call comfort; who have not the prerequisites of moral existence; who cannot lead the life that becomes a man. but the most miserable of these classes do not impute their misery to politics. if a political agitator were to lecture to the peasants of dorsetshire, and try to excite political dissatisfaction, it is much more likely that he would be pelted than that he would succeed. of parliament these miserable creatures know scarcely anything; of the cabinet they never heard. but they would say that, "for all they have heard, the queen is very good"; and rebelling against the structure of society is to their minds rebelling against the queen, who rules that society, in whom all its most impressive part--the part that they know--culminates. the mass of the english people are politically contented as well as politically deferential. a deferential community, even though its lowest classes are not intelligent, is far more suited to a cabinet government than any kind of democratic country, because it is more suited to political excellence. the highest classes can rule in it; and the highest classes must, as such, have more political ability than the lower classes. a life of labour, an incomplete education, a monotonous occupation, a career in which the hands are used much and the judgment is used little, cannot create as much flexible thought, as much applicable intelligence, as a life of leisure, a long culture, a varied experience, an existence by which the judgment is incessantly exercised, and by which it may be incessantly improved. a country of respectful poor, though far less happy than where there are no poor to be respectful, is nevertheless far more fitted for the best government. you can use the best classes of the respectful country; you can only use the worst where every man thinks he is as good as every other. it is evident that no difficulty can be greater than that of founding a deferential nation. respect is traditional; it is given not to what is proved to be good, but to what is known to be old. certain classes in certain nations retain by common acceptance a marked political preference, because they have always possessed it, and because they inherit a sort of pomp which seems to make them worthy of it. but in a new colony, in a community where merit may be equal, and where there cannot be traditional marks of merit and fitness, it is obvious that a political deference can be yielded to higher culture only upon proof, first of its existence, and next of its political value. but it is nearly impossible to give such a proof so as to satisfy persons of less culture. in a future and better age of the world it may be effected; but in this age the requisite premises scarcely exist; if the discussion be effectually open, if the debate be fairly begun, it is hardly possible to obtain a rational, an argumentative acquiescence in the rule of the cultivated few. as yet the few rule by their hold, not over the reason of the multitude, but over their imaginations, and their habits; over their fancies as to distant things they do not know at all, over their customs as to near things which they know very well. a deferential community in which the bulk of the people are ignorant, is therefore in a state of what is called in mechanics unstable equilibrium. if the equilibrium is once disturbed there is no tendency to return to it, but rather to depart from it. a cone balanced on its point is in unstable equilibrium, for if you push it ever so little it will depart farther and farther from its position and fall to the earth. so in communities where the masses are ignorant but respectful, if you once permit the ignorant class to begin to rule you may bid farewell to deference for ever. their demagogues will inculcate, their newspapers will recount, that the rule of the existing dynasty (the people) is better than the rule of the fallen dynasty (the aristocracy). a people very rarely hears two sides of a subject in which it is much interested; the popular organs take up the side which is acceptable, and none but the popular organs in fact reach the people. a people never hears censure of itself. no one will tell it that the educated minority whom it dethroned governed better or more wisely than it governs. a democracy will never, save after an awful catastrophe, return what has once been conceded to it, for to do so would be to admit an inferiority in itself, of which, except by some almost unbearable misfortune, it could never be convinced. no. ix. its history, and the effects of that history.--conclusion. a volume might seem wanted to say anything worth saying[12] on the history of the english constitution, and a great and new volume might still be written on it, if a competent writer took it in hand. the subject has never been treated by any one combining the lights of the newest research and the lights of the most matured philosophy. since the masterly book of hallam was written, both political thought and historical knowledge have gained much, and we might have a treatise applying our strengthened calculus to our augmented facts. i do not pretend that i could write such a book, but there are a few salient particulars which may be fitly brought together, both because of their past interest and of their present importance. [12] since the first edition of this book was published several valuable works have appeared, which, on many points, throw much light on our early constitutional history, especially mr. stubbs' select charters and other illustrations of english constitutional history, from the earliest times to the reign of edward the first, mr. freeman's lecture on "the growth of the english constitution," and the chapter on the anglo-saxon constitution in his history of the norman conquest: but we have not yet a great and authoritative work on the whole subject such as i wished for when i wrote the passage in the text, and as it is most desirable that we should have. there is a certain common polity, or germ of polity, which we find in all the rude nations that have attained civilisation. these nations seem to begin in what i may call a consultative and tentative absolutism. the king of early days, in vigorous nations, was not absolute as despots now are; there was then no standing army to repress rebellion, no organised espionage to spy out discontent, no skilled bureaucracy to smooth the ruts of obedient life. the early king was indeed consecrated by a religious sanction; he was essentially a man apart, a man above others, divinely anointed or even god-begotten. but in nations capable of freedom this religious domination was never despotic. there was indeed no legal limit; the very words could not be translated into the dialect of those times. the notion of law as we have it--of a rule imposed by human authority, capable of being altered by that authority, when it likes, and in fact, so altered habitually--could not be conveyed to early nations, who regarded law half as an invincible prescription, and half as a divine revelation. law "came out of the king's mouth"; he gave it as solomon gave judgment--embedded in the particular case, and upon the authority of heaven as well as his own. a divine limit to the divine revealer was impossible, and there was no other source of law. but though there was no legal limit, there was a practical limit to subjection in (what may be called) the pagan part of human nature--the inseparable obstinacy of freemen. they never would do exactly what they were told. to early royalty, as homer describes it in greece and as we may well imagine it elsewhere, there were always two adjuncts: one the "old men," the men of weight, the council, the _boulã©_, of which the king asked advice, from the debates in which the king tried to learn what he could do and what he ought to do. besides this there was the _agorã¡_, the purely listening assembly, as some have called it, but the tentative assembly, as i think it might best be called. the king came down to his assembled people in form to announce his will, but in reality, speaking in very modern words, to "feel his way". he was sacred, no doubt; and popular, very likely; still he was half like a popular premier speaking to a high-spirited chamber; there were limits to his authority and power--limits which he would discover by trying whether eager cheers received his mandate, or only hollow murmurs and a thinking silence. this polity is a good one for its era and its place, but there is a fatal defect in it. the reverential associations upon which the government is built are transmitted according to one law, and the capacity needful to work the government is transmitted according to another law. the popular homage clings to the line of god-descended kings; it is transmitted by inheritance. but very soon that line comes to a child or an idiot, or one by some defect or other incapable. then we find everywhere the truth of the old saying, that liberty thrives under weak princes; then the listening assembly begins not only to murmur, but to speak; then the grave council begins not so much to suggest as to inculcate, not so much to advise as to enjoin. mr. grote has told at length how out of these appendages of the original kingdom the free states of greece derived their origin, and how they gradually grew--the oligarchical states expanding the council, and the democratical expanding the assembly. the history has as many varieties in detail as there were greek cities, but the essence is the same everywhere. the political characteristic of the early greeks, and of the early romans, too, is that out of the tentacula of a monarchy they developed the organs of a republic. english history has been in substance the same, though its form is different, and its growth far slower and longer. the scale was larger, and the elements more various. a greek city soon got rid of its kings, for the political sacredness of the monarch would not bear the daily inspection and constant criticism of an eager and talking multitude. everywhere in greece the slave population--the most ignorant, and therefore the most unsusceptible of intellectual influences--was struck out of the account. but england began as a kingdom of considerable size, inhabited by distinct races, none of them fit for prosaic criticism, and all subject to the superstition of royalty. in early england, too, royalty was much more than a superstition. a very strong executive was needed to keep down a divided, an armed, and an impatient country; and therefore the problem of political development was delicate. a formed free government in a homogeneous nation may have a strong executive; but during the transition state, while the republic is in course of development and the monarchy in course of decay, the executive is of necessity weak. the polity is divided, and its action feeble and failing. the different orders of english people have progressed, too, at different rates. the change in the state of the higher classes since the middle ages is enormous, and it is all improvement; but the lower have varied little, and many argue that in some important respects they have got worse, even if in others they have got better. the development of the english constitution was of necessity slow, because a quick one would have destroyed the executive and killed the state, and because the most numerous classes, who changed very little, were not prepared for any catastrophic change in our institutions. i cannot presume to speak of the time before the conquest, and the exact nature even of all anglo-norman institutions is perhaps dubious: at least, in nearly all cases there have been many controversies. political zeal, whether whig or tory, has wanted to find a model in the past; and the whole state of society being confused, the precedents altering with the caprice of men and the chance of events, ingenious advocacy has had a happy field. but all that i need speak of is quite plain. there was a great "council" of the realm, to which the king summoned the most considerable persons in england, the persons he most wanted to advise him, and the persons whose tempers he was most anxious to ascertain. exactly who came to it at first is obscure and unimportant. i need not distinguish between the "magnum concilium in parliament" and the "magnum concilium out of parliament". gradually the principal assemblies summoned by the english sovereign took the precise and definite form of lords and commons, as in their outside we now see them. but their real nature was very different. the parliament of to-day is a ruling body; the mediaeval parliament was, if i may so say, an expressive body. its function was to tell the executive--the king--what the nation wished he should do; to some extent, to guide him by new wisdom, and, to a very great extent, to guide him by new facts. these facts were their own feelings, which were the feelings of the people, because they were part and parcel of the people. from thence the king learned, or had the means to learn, what the nation would endure, and what it would not endure;--what he might do, and what he might not do. if he much mistook this, there was a rebellion. there are, as is well known, three great periods in the english constitution. the first of these is the ante-tudor period. the english parliament then seemed to be gaining extraordinary strength and power. the title to the crown was uncertain; some monarchs were imbecile. many ambitious men wanted to "take the people into partnership". certain precedents of that time were cited with grave authority centuries after, when the time of freedom had really arrived. but the causes of this rapid growth soon produced an even more sudden decline. confusion fostered it, and confusion destroyed it. the structure of society then was feudal; the towns were only an adjunct and a make-weight. the principal popular force was an aristocratic force, acting with the co-operation of the gentry and yeomanry, and resting on the loyal fealty of sworn retainers. the head of this force, on whom its efficiency depended, was the high nobility. but the high nobility killed itself out. the great barons who adhered to the "red rose" or the "white rose," or who fluctuated from one to the other, became poorer, fewer, and less potent every year. when the great struggle ended at bosworth, a large part of the greatest combatants were gone. the restless, aspiring, rich barons, who made the civil war, were broken by it. henry vii. attained a kingdom in which there was a parliament to advise, but scarcely a parliament to control. the consultative government of the ante-tudor period had little resemblance to some of the modern governments which french philosophers call by that name. the french empire, i believe, calls itself so. but its assemblies are symmetrical "shams". they are elected by a universal suffrage, by the ballot, and in districts once marked out with an eye to equality, and still retaining a look of equality. but our english parliaments were unsymmetrical realities. they were elected anyhow; the sheriff had a considerable licence in sending writs to boroughs, that is, he could in part pick its constituencies; and in each borough there was a rush and scramble for the franchise, so that the strongest local party got it, whether few or many. but in england at that time there was a great and distinct desire to know the opinion of the nation, because there was a real and close necessity. the nation was wanted to do something--to assist the sovereign in some war, to pay some old debt, to contribute its force and aid in the critical conjuncture of the time. it would not have suited the ante-tudor kings to have had a fictitious assembly; they would have lost their sole feeler, their only instrument for discovering national opinion. nor could they have manufactured such an assembly if they wished. the instrument in that behalf is the centralised executive, and there was then no 'prefet' by whom the opinion of a rural locality could be made to order, and adjusted to suit the wishes of the capital. looking at the mode of election a theorist would say that these parliaments were but "chance" collections of influential englishmen. there would be many corrections and limitations to add to that statement if it were wanted to make it accurate, but the statement itself hits exactly the principal excellence of those parliaments. if not "chance" collections of englishmen, they were "undesigned" collections; no administrations made them or could make them. they were bona-fide counsellors, whose opinion might be wise or unwise, but was anyhow of paramount importance, because their co-operation was wanted for what was in hand. legislation as a positive power was very secondary in those old parliaments. i believe no statute at all, as far as we know, was passed in the reign of richard i., and all the ante-tudor acts together would look meagre enough to a modern parliamentary agent who had to live by them. but the negative action of parliament upon the law was essential to its whole idea, and ran through every part of its use. that the king could not change what was then the almost sacred datum of the common law, without seeing whether his nation liked it or not, was an essential part of the "tentative" system. the king had to feel his way in this exceptional, singular act, as those ages deemed original legislation, as well as in lesser acts. the legislation was his at last; he enacted after consulting his lords and commons; his was the sacred mouth which gave holy firmness to the enactment; but he only dared alter the rule regulating the common life of his people after consulting those people; he would not have been obeyed if he had not, by a rude age which did not fear civil war as we fear it now. many most important enactments of that period (and the fact is most characteristic) are declaratory acts. they do not profess to enjoin by inherent authority what the law shall in future be, but to state and mark what the law is; they are declarations of immemorial custom, not precepts of new duties. even in the "great charter" the notion of new enactments was secondary, it was a great mixture of old and new; it was a sort of compact defining what was doubtful in floating custom, and was re-enacted over and over again, as boundaries are perambulated once a year, and rights and claims tending to desuetude thereby made patent and cleared of new obstructions. in truth, such great "charters" were rather treaties between different orders and factions, confirming ancient rights, or what claimed to be such, than laws in our ordinary sense. they were the "deeds of arrangement" of mediaeval society affirmed and re-affirmed from time to time, and the principal controversy was, of course, between the king and nation--the king trying to see how far the nation would let him go, and the nation murmuring and recalcitrating, and seeing how many acts of administration they could prevent, and how many of its claims they could resist. sir james mackintosh says that magna charta "converted the right of taxation into the shield of liberty," but it did nothing of the sort. the liberty existed before, and the right to be taxed was an efflorescence and instance of it, not a sub-stratum or a cause. the necessity of consulting the great council of the realm before taxation, the principle that the declaration of grievances by the parliament was to precede the grant of supplies to the sovereign, are but conspicuous instances of the primitive doctrine of the ante-tudor period, that the king must consult the great council of the realm, before he did anything, since he always wanted help. the right of self-taxation was justly inserted in the "great treaty"; but it would have been a dead letter, save for the armed force and aristocratic organisation which compelled the king to make a treaty; it was a result, not a basis--an example, not a cause. the civil wars of many years killed out the old councils (if i might so say): that is, destroyed three parts of the greater nobility, who were its most potent members, tired the small nobility and the gentry, and overthrew the aristocratic organisation on which all previous effectual resistance to the sovereign had been based. the second period of the british constitution begins with the accession of the house of tudor, and goes down to 1688; it is in substance the history of the growth, development, and gradually acquired supremacy of the new great council. i have no room and no occasion to narrate again the familiar history of the many steps by which the slavish parliament of henry viii. grew into the murmuring parliament of queen elizabeth, the mutinous parliament of james i., and the rebellious parliament of charles i. the steps were many, but the energy was one--the growth of the english middle-class, using that word in its most inclusive sense, and its animation under the influence of protestantism. no one, i think, can doubt that lord macaulay is right in saying that political causes would not alone have then provoked such a resistance to the sovereign unless propelled by religious theory. of course the english people went to and fro from catholicism to protestantism, and from protestantism to catholicism (not to mention that the protestantism was of several shades and sects), just as the first tudor kings and queens wished. but that was in the pre-puritan era. the mass of englishmen were in an undecided state, just as hooper tells us his father was--"not believing in protestantism, yet not disinclined to it". gradually, however, a strong evangelic spirit (as we should now speak) and a still stronger anti-papal spirit entered into the middle sort of englishmen, and added to that force, fibre, and substance which they have never wanted, an ideal warmth and fervour which they have almost always wanted. hence the saying that cromwell founded the english constitution. of course, in seeming, cromwell's work died with him; his dynasty was rejected, his republic cast aside; but the spirit which culminated in him never sank again, never ceased to be a potent, though often a latent and volcanic force in the country. charles ii. said that he would never go again on his travels for anything or anybody; and he well knew that though the men whom he met at worcester might be dead, still the spirit which warmed them was alive and young in others. but the cromwellian republic and the strict puritan creed were utterly hateful to most englishmen. they were, if i may venture on saying so, like the "rouge" element in france and elsewhere--the sole revolutionary force in the entire state, and were hated as such. that force could do little of itself; indeed, its bare appearance tended to frighten and alienate the moderate and dull as well as the refined and reasoning classes. alone it was impotent against the solid clay of the english apathetic nature. but give this fiery element a body of decent-looking earth; give it an excuse for breaking out on an occasion, when the decent, the cultivated, and aristocratic classes could join with it, and they would conquer by means of it, and it could be disguised in their covering. such an excuse was found in 1688. james ii., by incredible and pertinacious folly, irritated not only the classes which had fought against his father, but also those who had fought for his father. he offended the anglican classes as well as the puritan classes; all the whig nobles, and half the tory nobles, as well as the dissenting bourgeois. the rule of parliament was established by the concurrence of the usual supporters of royalty with the usual opponents of it. but the result was long weak. our revolution has been called the minimum of a revolution, because in law, at least, it only changed the dynasty, but exactly on that account it was the greatest shock to the common multitude, who see the dynasty but see nothing else. the support of the main aristocracy held together the bulk of the deferential classes, but it held them together imperfectly, uneasily, and unwillingly. huge masses of crude prejudice swayed hither and thither for many years. if an able stuart had with credible sincerity professed protestantism probably he might have overturned the house of hanover. so strong was inbred reverence for hereditary right, that until the accession of george iii. the english government was always subject to the unceasing attrition of a competitive sovereign. this was the result of what i insist on tediously, but what is most necessary to insist on, for it is a cardinal particular in the whole topic. many of the english people--the higher and more educated portion--had come to comprehend the nature of constitutional government, but the mass did not comprehend it. they looked to the sovereign as the government, and to the sovereign only. these were carried forward by the magic of the aristocracy and principally by the influence of the great whig families with their adjuncts. without that aid reason or liberty would never have held them. though the rule of parliament was definitely established in 1688, yet the mode of exercising that rule has since changed. at first parliament did not know how to exercise it; the organisation of parties and the appointment of cabinets by parties grew up in the manner macaulay has described so well. up to the latest period the sovereign was supposed, to a most mischievous extent, to interfere in the choice of the persons to be ministers. when george iii. finally became insane, in 1810, every one believed that george iv., on assuming power as prince regent, would turn out mr. perceval's government and empower lord grey or lord grenville, the whig leaders, to form another. the tory ministry was carrying on a successful war--a war of existence--against napoleon; but in the people's minds, the necessity at such an occasion for an unchanged government did not outweigh the fancy that george iv. was a whig. and a whig it is true he had been before the french revolution, when he lived an indescribable life in st. james's street with mr. fox. but lord grey and lord grenville were rigid men, and had no immoral sort of influence. what liberalism of opinion the regent ever had was frightened out of him (as of other people) by the reign of terror. he felt, according to the saying of another monarch, that "he lived by being a royalist". it soon appeared that he was most anxious to retain mr. perceval, and that he was most eager to quarrel with the whig lords. as we all know, he kept the ministry whom he found in office; but that it should have been thought he could then change them, is a significant example how exceedingly modern our notions of the despotic action of parliament in fact are. by the steps of the struggle thus rudely mentioned (and by others which i have no room to speak of, nor need i), the change which in the greek cities was effected both in appearance and in fact, has been effected in england, though in reality only, and not in outside. here, too, the appendages of a monarchy have been converted into the essence of a republic; only here, because of a more numerous heterogeneous political population, it is needful to keep the ancient show while we secretly interpolate the new reality. this long and curious history has left its trace on almost every part of our present political condition; its effects lie at the root of many of our most important controversies; and because these effects are not rightly perceived, many of these controversies are misconceived. one of the most curious peculiarities of the english people is its dislike of the executive government. we are not in this respect "un vrai peuple moderne," like the americans. the americans conceive of the executive as one of their appointed agents; when it intervenes in common life, it does so, they consider, in virtue of the mandate of the sovereign people, and there is no invasion or dereliction of freedom in that people interfering with itself. the french, the swiss, and all nations who breathe the full atmosphere of the nineteenth century, think so too. the material necessities of this age require a strong executive; a nation destitute of it cannot be clean, or healthy, or vigorous, like a nation possessing it. by definition, a nation calling itself free should have no jealousy of the executive, for freedom means that the nation, the political part of the nation, wields the executive. but our history has reversed the english feeling: our freedom is the result of centuries of resistance, more or less legal, or more or less illegal, more or less audacious, or more or less timid, to the executive government. we have, accordingly, inherited the traditions of conflict, and preserve them in the fulness of victory. we look on state action, not as our own action, but as alien action; as an imposed tyranny from without, not as the consummated result of our own organised wishes. i remember at the census of 1851 hearing a very sensible old lady say that the "liberties of england were at an end"; if government might be thus inquisitorial, if they might ask who slept in your house, or what your age was, what, she argued, might they not ask and what might they not do? the natural impulse of the english people is to resist authority. the introduction of effectual policemen was not liked; i know people, old people, i admit, who to this day consider them an infringement of freedom, and an imitation of the gendarmes of france. if the original policemen had been started with the present helmets, the result might have been dubious; there might have been a cry of military tyranny, and the inbred insubordination of the english people might have prevailed over the very modern love of perfect peace and order. the old notion that the government is an extrinsic agency still rules our imaginations, though it is no longer true, and though in calm and intellectual moments we well know it is not. nor is it merely our history which produces this effect; we might get over that; but the results of that history co-operate. our double government so acts: when we want to point the antipathy to the executive, we refer to the jealousy of the crown, so deeply embedded in the very substance of constitutional authority; so many people are loth to admit the queen, in spite of law and fact, to be the people's appointee and agent, that it is a good rhetorical emphasis to speak of her prerogative as something non-popular, and therefore to be distrusted. by the very nature of our government our executive cannot be liked and trusted as the swiss or the american is liked and trusted. out of the same history and the same results proceed our tolerance of those "local authorities" which so puzzle many foreigners. in the struggle with the crown these local centres served as props and fulcrums. in the early parliaments it was the local bodies who sent members to parliament, the counties, and the boroughs; and in that way, and because of their free life, the parliament was free too. if active real bodies had not sent the representatives, they would have been powerless. this is very much the reason why our old rights of suffrage were so various; the government let whatever people happened to be the strongest in each town choose the members. they applied to the electing bodies the test of "natural selection"; whatever set of people were locally strong enough to elect, did so. afterwards in the civil war, many of the corporations, like that of london, were important bases of resistance. the case of london is typical and remarkable. probably, if there is any body more than another which an educated englishman nowadays regards with little favour, it is the corporation of london. he connects it with hereditary abuses perfectly preserved, with large revenues imperfectly accounted for, with a system which stops the principal city government at an old archway, with the perpetuation of a hundred detestable parishes, with the maintenance of a horde of luxurious and useless bodies. for the want of all which makes paris nice and splendid we justly reproach the corporation of london; for the existence of much of what makes london mean and squalid we justly reproach it too. yet the corporation of london was for centuries a bulwark of english liberty. the conscious support of the near and organised capital gave the long parliament a vigour and vitality which they could have found nowhere else. their leading patriots took refuge in the city, and the nearest approach to an english "sitting in permanence" is the committee at guildhall, where all members "that came were to have voices". down to george iii.'s time the city was a useful centre of popular judgment. here, as elsewhere, we have built into our polity pieces of the scaffolding by which it was erected. de tocqueville indeed used to maintain that in this matter the english were not merely historically excusable but likewise politically judicious. he founded what may be called the culte of corporations. and it was natural, that in france, where there is scarcely any power of self-organisation in the people, where the prefet must be asked upon every subject, and take the initiative in every movement, a solitary thinker should be repelled from the exaggerations of which he knew the evil, to the contrary exaggeration of which he did not. but in a country like england where business is in the air, where we can organise a vigilance committee on every abuse and an executive committee for every remedy--as a matter of political instruction, which was de tocqueville's point--we need not care how much power is delegated to outlying bodies, and how much is kept for the central body. we have had the instruction municipalities could give us: we have been through all that. now we are quite grown up, and can put away childish things. the same causes account for the innumerable anomalies of our polity. i own that i do not entirely sympathise with the horror of these anomalies which haunts some of our best critics. it is natural that those who by special and admirable culture have come to look at all things upon the artistic side, should start back from these queer peculiarities. but it is natural also that persons used to analyse political institutions should look at these anomalies with a little tenderness and a little interest. they may have something to teach us. political philosophy is still more imperfect; it has been framed from observations taken upon regular specimens of politics and states; as to these its teaching is most valuable. but we must ever remember that its data are imperfect. the lessons are good where its primitive assumptions hold, but may be false where those assumptions fail. a philosophical politician regards a political anomaly as a scientific physician regards a rare disease--it is to him an "interesting case". there may still be instruction here, though we have worked out the lessons of common cases. i cannot, therefore, join in the full cry against anomalies; in my judgment it may quickly overrun the scent, and so miss what we should be glad to find. subject to this saving remark, however, i not only admit, but maintain, that our constitution is full of curious oddities, which are impeding and mischievous, and ought to be struck out. our law very often reminds one of those outskirts of cities where you cannot for a long time tell how the streets come to wind about in so capricious and serpent-like a manner. at last it strikes you that they grew up, house by house, on the devious tracks of the old green lanes; and if you follow on to the existing fields, you may often find the change half complete. just so the lines of our constitution were framed in old eras of sparse population, few wants, and simple habits; and we adhere in seeming to their shape, though civilisation has come with its dangers, complications, and enjoyments. these anomalies, in a hundred instances, mark the old boundaries of a constitutional struggle. the casual line was traced according to the strength of deceased combatants; succeeding generations fought elsewhere; and the hesitating line of a half-drawn battle was left to stand for a perpetual limit. i do not count as an anomaly the existence of our double government, with all its infinite accidents, though half the superficial peculiarities that are often complained of arise out of it. the co-existence of a queen's seeming prerogative and a downing street's real government is just suited to such a country as this, in such an age as ours.[13] [13] so well is our real government concealed, that if you tell a cabman to drive to "downing street," he most likely will never have heard of it, and will not in the least know where to take you. it is only a "disguised republic". [the end] scanned images of public domain material from the google print project.) the journal of the debates in the convention which framed the constitution of the united states may-september, 1787 as recorded by james madison edited by gaillard hunt in two volumes volume i. g. p. putnam's sons new york and london the knickerbocker press 1908 the knickerbocker press, new york [illustration] contents of volume i. page the records of the constitutional convention (introduction by the editor) vii chronology xix journal of the constitutional convention of 1787 1 [illustration] [illustration] list of fac-similes. facing page first page of madison's journal, actual size 2 charles pinckney's letter 20 the pinckney draft 22 hamilton's principal speech 154 [illustration] [illustration] the records of the constitutional convention. james madison's contemporaries generally conceded that he was the leading statesman in the convention which framed the constitution of the united states; but in addition to this he kept a record of the proceedings of the convention which outranks in importance all the other writings of the founders of the american republic. he is thus identified, as no other man is, with the making of the constitution and the correct interpretation of the intentions of the makers. his is the only continuous record of the proceedings of the convention. he took a seat immediately in front of the presiding officer, among the members, and took down every speech or motion as it was made, using abbreviations of his own and immediately afterwards transcribing his notes when he returned to his lodgings. a few motions only escaped him and of important speeches he omitted none. the proceedings were ordered to be kept secret, but his self-imposed task of reporter had the unofficial sanction of the convention. alexander hamilton corrected slightly madison's report of his great speech and handed him his plan of government to copy. the same thing was done with benjamin franklin's speeches, which were written out by franklin and read by his colleague wilson, the fatigue of delivery being too great for the aged franklin, and madison also copied the patterson plan. edmund randolph wrote out for him his opening speech from his notes two years after the convention adjourned.[1] [1] madison to randolph, april 21, 1789. in the years after the convention madison made a few alterations and additions in his journal, with the result that in parts there is much interlineation and erasure, but after patient study the meaning is always perfectly clear. three different styles of madison's own penmanship at different periods of his life appear in the journal, one being that of his old age within five years of his death. in this hand appears the following note at the end of the journal: "the few alterations and corrections made in the debates which are not in my handwriting were dictated by me and made in my presence by john c. payne."[2] the rare occasions where payne's penmanship is distinguishable are indicated in the notes to this edition. [2] mrs. madison's brother. the importance attached by madison to his record is shown by the terms of his will, dated april 15, 1835, fourteen months before his death: "i give all my personal estate ornamental as well as useful, except as herein after otherwise given, to my dear wife; and i also give to her all my manuscript papers, having entire confidence in her discreet and proper use of them, but subject to the qualification in the succeeding clause. considering the peculiarity and magnitude of the occasion which produced the convention at philadelphia in 1787, the characters who composed it, the constitution which resulted from their deliberations, its effects during a trial of so many years on the prosperity of the people living under it, and the interest it has inspired among the friends of free government, it is not an unreasonable inference that a careful and extended report of the proceedings and discussions of that body, which were with closed doors, by a member who was constant in his attendance, will be particularly gratifying to the people of the united states, and to all who take an interest in the progress of political science and the course of true liberty. it is my desire that the report as made by me should be published under her authority and direction."[3] [3] orange county, va., mss. records. this desire was never consummated, for mrs. madison's friends advised her that she could not herself profitably undertake the publication of the work, and she accordingly offered it to the government, by which it was bought for $30,000, by act of congress, approved march 3, 1837. on july 9, 1838, an act was approved authorizing the joint committee on the library to cause the papers thus purchased to be published, and the committee intrusted the superintendence of the work to henry d. gilpin, solicitor of the treasury. the duplicate copy of the journal which mrs. madison had delivered was, under authority of congress, withdrawn from the state department and placed in mr. gilpin's hands. in 1840 (washington: lantree & o'sulivan), accordingly, appeared the three volumes, _the papers of james madison purchased by order of congress_, edited by henry d. gilpin. other issues of this edition, with changes of date, came out later in new york, boston, and mobile. this issue contained not only the journal of the constitutional convention, but madison's notes of the debates in the continental congress and in the congress of the confederation from february 19 to april 25, 1787, and a report jefferson had written of the debates in 1776 on the declaration of independence, besides a number of letters of madison's. from the text of gilpin a fifth volume was added to elliot's _debates_ in 1845, and it was printed in one volume in chicago, 1893. mr. gilpin's reading of the duplicate copy of the madison journal is thus the only one that has hitherto been published.[4] his work was both painstaking and thorough, but many inaccuracies and omissions have been revealed by a second reading from the original manuscript journal written in madison's own hand, just as he himself left it; and this original manuscript has been followed with rigid accuracy in the text of the present edition. [4] volume iii of _the documentary history of the united states_ (department of state, 1894) is a presentation of a literal print of the original journal, indicating by the use of larger and smaller type and by explanatory words the portions which are interlined or stricken out. the editor has compared carefully with madison's report, as the notes will show, the incomplete and less important records of the convention, kept by others. of these, the best known is that of robert yates, a delegate in the convention from new york, who took notes from the time he entered the convention, may 25, to july 5, when he went home to oppose what he foresaw would be the result of the convention's labors. these notes were published in 1821 (albany), edited by yates's colleague in the convention, john lansing, under the title, _secret proceedings and debates of the convention assembled at philadelphia, in the year 1787, for the purpose of forming the constitution of the united states of america_. this was afterwards reprinted in several editions and in the three editions of _the debates on the federal constitution_, by jonathan elliot (washington, 1827-1836). madison pronounced yates's notes "crude and broken." "when i looked over them some years ago," he wrote to j. c. cabell, february 2, 1829, "i was struck with the number of instances in which he had totally mistaken what was said by me, or given it in scraps and terms which, taken without the developments or qualifications accompanying them, had an import essentially different from what was intended." yates's notes were colored by his prejudices, which were strong against the leaders of the convention, but, making allowance for this and for their incompleteness, they are of high value and rank next to madison's in importance. rufus king, a delegate from massachusetts, kept a number of notes, scattered and imperfect, which were not published till 1894, when they appeared in king's _life and correspondence of rufus king_ (new york: putnam's). william pierce, a delegate from georgia, made some memoranda of the proceedings of the convention, and brief and interesting sketches of all the delegates, which were first printed in _the savannah georgian_, april, 18-28, 1828, and reprinted in _the american historical review_ for january, 1898. the notes of yates, king, and pierce are the only unofficial record of the convention extant, besides madison's, and their chief value is in connection with the madison record, which in the main they support, and which occasionally they elucidate. december 30, 1818, charles pinckney wrote to john quincy adams that he had made more notes of the convention than any other member except madison, but they were never published and have been lost or destroyed.[5] [5] see p. 22, n. in 1819 (boston) was published the _journal, acts and proceedings of the convention_, etc., under the supervision of john quincy adams, secretary of state, by authority of a joint resolution of congress of march 27, 1818. this was the official journal of the convention, which the secretary, william jackson, had turned over to the president, george washington, when the convention adjourned, jackson having previously burned all other papers of the convention in his possession. march 16, 1796, washington deposited the papers jackson had given him with the secretary of state, timothy pickering. they consisted of three volumes,--the journal of the convention, the journal of the proceedings of the committee of the whole of the convention, and a list of yeas and nays, beside a printed draft of the constitution as reported august 6th, showing erasures and amendments afterwards adopted, and the virginia plan in different stages of development. in preparing the matter for publication secretary adams found that for friday, september 14, and saturday, september 15, the journal was a mere fragment, and madison was applied to and completed it from his minutes. from general b. bloomfield, executor of the estate of david brearley, a delegate in the convention from new jersey, adams obtained a few additional papers, and from charles pinckney a copy of what purported to be the plan of a constitution submitted by him to the convention. all of these papers, with some others, appeared in the edition of 1819, which was a singularly accurate publication, as comparison by the present editor of the printed page with the original papers has shown. the pinckney plan, as it appeared in this edition of the journal, was incorporated by madison into his record, as he had not secured a copy of it when the convention was sitting. but the draft furnished to secretary adams in 1818, and the plan presented by pinckney to the convention in 1787 were not identical, as madison conclusively proved in his note to his journal, in his letter to jared sparks of november 25, 1831, and in several other letters, in all of which he showed that the draft did not agree in several important respects with pinckney's own votes and motions in the convention, and that there were important discrepancies between it and pinckney's _observations on the plan of government_, a pamphlet printed shortly after the convention adjourned.[6] [6] see p. l. ford's _pamphlets on the constitution_, 419. it is, indeed, inconceivable that the convention should have incorporated into the constitution so many of the provisions of the pinckney draft, and that at the same time so little reference should have been made to it in the course of the debates; and it is equally extraordinary that the contemporaries of pinckney did not accord to him the chief paternity of the constitution, which honor would have belonged to him if the draft he sent to mr. adams in 1818 had been the one he actually offered the convention in the first week of its session. the editor has made a careful examination of the original manuscripts in the case. they consist (1) of mr. pinckney's letter to mr. adams of december 12, 1818, written from winyaw, s. c., while pinckney was temporarily absent from charleston, acknowledging mr. adams's request for the draft, (2) his letter of december 30, written from charleston, transmitting the draft, and (3) the draft. the penmanship of all three papers is contemporaneous, and the letter of december 30 and the draft were written with the same pen and ink. this may possibly admit of a difference of opinion, because the draft is in a somewhat larger chirography than the letter, having been, as befitted its importance, written more carefully. but the letter and the draft are written upon the same paper, and this paper was not made when the convention sat in 1787. there are several sheets of the draft and one of the letter, and all bear the same water-mark--"russell & co. 1797." the draft cannot, therefore, claim to be the original pinckney plan, and was palpably made for the occasion, from mr. pinckney's original notes doubtless, aided and modified by a copy of the constitution itself. thirty years had elapsed since the close of the constitutional convention when the draft was compiled, and its incorrectness is not a circumstance to occasion great wonder.[7] [7] see p. 19, n. correspondence on the subject of the convention, written while it was in session, was not extensive, but some unpublished letters throwing light upon contemporaneous opinion have been found and are quoted in the notes. the editor desires to record his obligation for assistance in preparing these volumes to his friend, montgomery blair, esq., of silver spring, md. gaillard hunt. cherry hill farm, va., september, 1902. [illustration] chronology of james madison. 1787. 1787. prepares the "virginia plan" in conjunction with the may 6-25. virginia delegates. may 14. attends the first gathering of the delegates. may 30. moves postponement of question of representation by free population. moves that congressional representation be proportioned to the importance and size of the states. makes his first speech on this subject. may 31. advocates representation in one house by popular election. opposes uniting several states into one district for representation in senate. doubts practicability of enumerating powers of national legislature. suggests the impossibility of using force to coerce individual states. june 1. moves that the powers of the executive be enumerated. june 2. objects to giving congress power to remove the president upon demand of a majority of the state legislatures. june 4. favors giving power to more than a majority of the national legislature to overrule an executive negative of a law. june 5. opposes election of judges by both branches of congress. advocates submission of constitution to conventions of the people. favors inferior judicial tribunals. june 6. speaks for popular representation in the house. seconds motion to include a portion of the judiciary with the executive in revisionary power over laws. june 7. speaks for proportional representation in both houses of congress. june 8. seconds motion to give congress power to negative state laws. suggests temporary operation of urgent laws. june 12. seconds motion to make term of representatives three years. thinks the people will follow the convention. favors a term of seven years for senators. june 13. moves defining powers of judiciary. objects to appointment of judges by whole legislature. thinks both houses should have right to originate money bills. advocates a national government and opposes the "jersey plan." june 21. speaks in favor of national supremacy. opposes annual or biennial elections of representatives. june 22. favors fixing payment of salaries by a standard. june 23. proposes to debar senators from offices created or enhanced during their term. speaks for the proposition. june 25. wishes to take up question of right of suffrage. june 26. speaks for a long term for senators. opposes their payment by the states. june 28. speaks for proportional representation. june 29. insists that too much stress is laid on state sovereignty. june 30. contends against equal state representation in the senate. speaks again on subject, but would preserve state rights. july 2. opposes submission of the question to a special committee. july 5. opposes compromise report of committee. july 6. thinks part of report need not be postponed. july 7. thinks question of representation ought to be settled before other questions. july 9. suggests free inhabitants as basis of representation in one house, and all inhabitants as basis in the other house. july 10. moves increase of representatives. july 11. favors representation based on population. july 14. urges proportional representation as necessary to protect the smaller states. july 17. advocates national power of negative over state laws. thinks the branches of government should be kept separate. thinks monarchy likely to follow instability. thinks there should be provision for interregnum between adoption and operation of constitution. moves national guarantee of states against domestic violence. july 18. seconds motion forbidding a state to form any but a republican government. journal of the constitutional convention of 1787. monday may 14^{th} 1787 was the day fixed for the meeting of the deputies in convention for revising the federal system of government. on that day a small number only had assembled. seven states were not convened till, friday 25 of may, when the following members appeared to wit: from _massachusetts_, rufus king. _n. york_, robert yates,[8] alex^r hamilton. _n. jersey_, david brearly, william churchill houston, william patterson. _pennsylvania_, robert morris, thomas fitzsimons, james wilson, governeur morris. _delaware_, george read, richard basset,[9] jacob broome. _virginia_, george washington, edmund randolph, john blair,[10] james madison, george mason, george wythe, james mcclurg. _n. carolina_, alexander martin, william richardson davie, richard dobbs spaight, hugh williamson. _s. carolina_, john rutlidge, charles cotesworth pinckney, charles pinckney, pierce butler. _georgia_, william few.[11] [8] william pierce, delegate from georgia, made an estimate of each member of the convention, the only contemporary estimate thus far brought to light. yates did not speak in the convention. "m^r yates is said to be an able judge. he is a man of great legal abilities, but not distinguished as an orator. some of his enemies say he is an anti-federal man, but i discovered no such disposition in him. he is about 45 years old, and enjoys a great share of health."--pierce's notes, _am. hist. rev._, iii., 327. for more about pierce's notes, see p. 45, n. [9] "m^r bassett is a religious enthusiast, lately turned methodist, and serves his country because it is the will of the people that he should do so. he is a man of plain sense, and has modesty enough to hold his tongue. he is gentlemanly man and is in high estimation among the methodists. mr. bassett is about 36 years old."--pierce's notes, _id._, iii., 330. he did not speak in the convention. [10] "mr. blair is one of the most respectable men in virginia, both on account of his family as well as fortune. he is one of the judges of the supreme court in virginia, and acknowledged to have a very extensive knowledge of the laws. m^r blair is however, no orator, but his good sense, and most excellent principles, compensate for other deficiencies. he is about 50 years of age."--pierce's notes, _am. hist. rev._, iii., 331. he did not speak in the convention. [11] "m^r few possesses a strong natural genius, and from application has acquired some knowledge of legal matters;--he practises at the bar of georgia, and speaks tolerably well in the legislature. he has been twice a member of congress, and served in that capacity with fidelity to his state, and honor to himself. mr. few is about 35 years of age."--pierce's notes, _id._, iii., 333. he did not speak in the convention. the credentials of connecticut and maryland required but one deputy to represent the state; of new york, south carolina, georgia, and new hampshire, two deputies; of massachusetts, new jersey, delaware, virginia, and north carolina, three; of pennsylvania, four.--_journal of the federal convention_, 16 _et seq._; _documentary history of the constitution_, i., 10 _et seq._ m^r robert morris[12] informed the members assembled that by the instruction & in behalf, of the deputation of pen^a he proposed george washington, esq^r late commander in chief for president of the convention. m^r jn^o rutlidge seconded the motion; expressing his confidence that the choice would be unanimous, and observing that the presence of gen^l washington forbade any observations on the occasion which might otherwise be proper. [12] "robert morris is a merchant of great eminence and wealth; an able financier, and a worthy patriot. he has an understanding equal to any public object, and possesses an energy of mind that few men can boast of. although he is not learned, yet he is as great as those who are. i am told that when he speaks in the assembly of pennsylvania, that he bears down all before him. what could have been his reason for not speaking in the convention i know not,--but he never once spoke on any point. this gentleman is about 50 years old."--pierce's notes, _am. hist: rev._, iii., 328. [illustration] [illustration] general washington[13] was accordingly unanimously elected by ballot, and conducted to the chair by m^r r. morris and m^r rutlidge; from which in a very emphatic manner he thanked the convention for the honor they had conferred on him, reminded them of the novelty of the scene of business in which he was to act, lamented his want of better qualifications, and claimed the indulgence of the house towards the involuntary errors which his inexperience might occasion. [13] "gen^l washington is well known as the commander in chief of the late american army. having conducted these states to independence and peace, he now appears to assist in framing a government to make the people happy. like gustavus vasa, he may be said to be the deliverer of his country;--like peter the great he appears as the politician and the states-man; and like cincinnatus he returned to his farm perfectly contented with being only a plain citizen, after enjoying the highest honor of the confederacy,--and now only seeks for the approbation of his country-men by being virtuous and useful. the general was conducted to the chair as president of the convention by the unanimous voice of its members. he is in the 52^d year of his age."--pierce's notes, _am. hist. rev._, iii., 331. (the nomination came with particular grace from pe[~nn]a, as doc^r franklin alone could have been thought of as a competitor. the doc^r was himself to have made the nomination of general washington, but the state of the weather and of his health confined him to his house.) m^r wilson[14] moved that a secretary be appointed, and nominated m^r temple franklin. [14] "mr. wilson ranks among the foremost in legal and political knowledge. he has joined to a fine genius all that can set him off and show him to advantage. he is well acquainted with man, and understands all the passions that influence him. government seems to have been his peculiar study, all the political institutions of the world he knows in detail, and can trace the causes and effects of every revolution from the earliest stages of the greecian commonwealth down to the present time. no man is more clear, copious, and comprehensive than mr. wilson, yet he is no great orator. he draws the attention not by the charm of his eloquence, but by the force of his reasoning. he is about 45 years old."--pierce's notes, _am. hist. rev._, iii., 329. col hamilton[15] nominated major jackson. [15] "col^o hamilton is deservedly celebrated for his talents. he is a practitioner of the law, and reputed to be a finished scholar. to a clear and strong judgment he unites the ornaments of fancy, and whilst he is able, convincing, and engaging in his eloquence the heart and head sympathize in approving him. yet there is something too feeble in his voice to be equal to the strains of oratory;--it is my opinion he is rather a convincing speaker, that [than] a blazing orator. col^o hamilton requires time to think,--he enquires into every part of his subject with the searchings of phylosophy, and when he comes forward he comes highly charged with interesting matter, there is no skimming over the surface of a subject with him, he must sink to the bottom to see what foundation it rests on.--his language is not always equal, sometimes didactic like bolingbroke's, at others light and tripping like stern's. his eloquence is not so defusive as to trifle with the senses, but he rambles just enough to strike and keep up the attention. he is about 33 years old, of small stature, and lean. his manners are tinctured with stiffness, and sometimes with a degree of vanity that is highly disagreable."--pierce's notes, _id._, iii., 327. on the ballot maj^r jackson had 5 votes & m^r franklin 2 votes. on reading the credentials of the deputies it was noticed that those from delaware were prohibited from changing the article in the confederation establishing an equality of votes among the states.[16] [16] "... so also and provided, that such alterations or further provisions, or any of them, do not extend to that part of the fifth article of the confederation of the said states, finally ratified on the first day march, in the year one thousand seven hundred and eighty one, which declares that 'in determining questions in the united states in congress assembled each state shall have one vote.'"--_documentary history of the constitution_ (dept. of state), i., 24. the appointment of a committee, consisting of mess^{rs} wythe, hamilton & c. pinckney, on the motion of mr. pinckney, to prepare standing rules & orders was the only remaining step taken on this day. monday may 28.---from mass^{ts} nat: gorham & caleb strong. from connecticut oliver elseworth. from delaware, gunning bedford. from maryland james m^chenry. from penn^a b. franklin, george clymer, th^s mifflin & jared ingersol, took their seats.[17] [17] "entre nous. i believe the eastern people have taken ground they will not depart from respecting the convention.--one legislature composed of a lower-house triennially elected and an _executive & senate_ for a good number of years.--i shall see gerry & johnson, as they pass & may perhaps give you a hint."--william grayson to madison, new york, may 24, 1787, _mad. mss._ m^r wythe[18] from the committee for preparing rules made a report which employed the deliberations of this day. [18] "m^r wythe is the famous professor of law at the university of william and mary. he is confessedly one of the most learned legal characters of the present age. from his close attention to the study of general learning he has acquired a compleat knowledge of the dead languages and all the sciences. he is remarked for his exemplary life, and universally esteemed for his good principles. no man it is said understands the history of government better than m^r wythe,--nor any one who understands the fluctuating condition to which all societies are liable better than he does, yet from his too favorable opinion of men, he is no great politician. he is a neat and pleasing speaker, and a most correct and able writer. mr. wythe is about 55 years of age."--pierce's notes, _am. hist. rev._, iii., 331. m^r king[19] objected to one of the rules in the report authorizing any member to call for the yeas & nays and have them entered on the minutes. he urged that as the acts of the convention were not to bind the constituents, it was unnecessary to exhibit this evidence of the votes; and improper as changes of opinion would be frequent in the course of the business & would fill the minutes with contradictions. [19] "m^r king is a man much distinguished for his eloquence and great parliamentary talents. he was educated in massachusetts, and is said to have good classical as well as legal knowledge. he has served for three years in the congress of the united states with great and deserved applause, and is at this time high in the confidence and approbation of his country-men. this gentleman is about thirty three years of age, about five feet ten inches high, well formed, an handsome face, with a strong expressive eye, and a sweet high toned voice. in his public speaking there is something peculiarly strong and rich in his expression, clear, and convincing in his arguments, rapid and irresistible at times in his eloquence but he is not always equal. his action is natural, swimming, and graceful, but there is a rudeness of manner sometimes accompanying it. but take him _tout en semble_, he may with propriety be ranked among the luminaries of the present age."--pierce's notes, _am. hist. rev._, iii., 325. col. mason[20] seconded the objection; adding that such a record of the opinions of members would be an obstacle to a change of them on conviction; and in case of its being hereafter promulged must furnish handles to the adversaries of the result of the meeting. [20] "mr. mason is a gentleman of remarkable strong powers, and possesses a clear and copious understanding. he is able and convincing in debate, steady and firm in his principles, and undoubtedly one of the best politicians in america. m^r mason is about 60 years old, with a fine strong constitution."--pierce's notes, _id._, iii., 331. the proposed rule was rejected nem. contrad certe. the standing rules[21] agreed to were as follows:[22] [21] previous to the arrival of a majority of the states, the rule by which they ought to vote in the convention had been made a subject of conversation among the members present. it was pressed by governeur morris and favored by robert morris and others from pennsylvania, that the large states should unite in firmly refusing to the small states an equal vote, as unreasonable, and as enabling the small states to negative every good system of government, which must, in the nature of things, be founded on a violation of that equality. the members from virginia, conceiving that such an attempt might beget fatal altercations between the large & small states, and that it would be easier to prevail on the latter, in the course of the deliberations, to give up their equality for the sake of an effective government, than on taking the field of discussion to disarm themselves of the right & thereby throw themselves on the mercy of the larger states, discountenanced and stifled the project.--madison's note. [22] in the ms. madison adds: "[see the journal & copy here the printed rules]," and they were copied by him from the _journal of the federal convention_ (_1819_). they have been compared with the ms. journal and found to be correct. viz. a house to do business shall consist of the deputies of not less than seven states; and all questions shall be decided by the greater number of these which shall be fully represented; but a less number than seven may adjourn from day to day. immediately after the president shall have taken the chair, and the members their seats, the minutes of the preceding day shall be read by the secretary. every member, rising to speak, shall address the president; and whilst he shall be speaking, none shall pass between them, or hold discourse with another, or read a book, pamphlet or paper, printed or manuscript--and of two members rising at the same time, the president shall name him who shall be first heard. a member shall not speak oftener than twice, without special leave, upon the same question; and not the second time, before every other, who had been silent, shall have been heard, if he choose to speak upon the subject. a motion made and seconded, shall be repeated, and if written, as it shall be when any member shall so require, read aloud by the secretary, before it shall be debated; and may be withdrawn at any time, before the vote upon it shall have been declared. orders of the day shall be read next after the minutes, and either discussed or postponed, before any other business shall be introduced. when a debate shall arise upon a question, no motion, other than to amend the question, to commit it, or to postpone the debate shall be received. [23]a question which is complicated, shall, at the request of any member, be divided, and put separately on the propositions of which it is compounded. [23] an undecided line is drawn through the page in the ms. from here to the end of the rules; but not, as it would appear, to strike them out, as they were actually adopted by the convention. the determination of a question, altho' fully debated, shall be postponed, if the deputies of any state desire it until the next day. a writing which contains any matter brought on to be considered, shall be read once throughout for information, then by paragraphs to be debated, and again, with the amendments, if any, made on the second reading; and afterwards the question shall be put on the whole, amended, or approved in its original form, as the case shall be. committees shall be appointed by ballot; and the members who have the greatest number of ballots, altho' not a majority of the votes present, shall be the committee. when two or more members have an equal number of votes, the member standing first on the list in the order of taking down the ballots, shall be preferred. a member may be called to order by any other member, as well as by the president; and may be allowed to explain his conduct or expressions supposed to be reprehensible. and all questions of order shall be decided by the president without appeal or debate. upon a question to adjourn for the day, which may be made at any time, if it be seconded, the question shall be put without a debate. when the house shall adjourn, every member shall stand in his place, until the president pass him. a letter from sundry persons of the state of rho. island addressed to the honorable the chairman of the general convention was presented to the chair by mr. gov^r morris,[24] and being read, was ordered to lie on the table for further consideration.[25] [24] "m^r governeur morris is one of those genius's in whom every species of talents combine to render him conspicuous and flourishing in public debate:--he winds through all the mazes of rhetoric, and throws around him such a glare that he charms, captivates, and leads away the senses of all who hear him. with an infinite streach of fancy he brings to view things when he is engaged in deep argumentation, that render all the labor of reasoning easy and pleasing. but with all these powers he is fickle and inconstant,--never pursuing one train of thinking,--nor ever regular. he has gone through a very extensive course of reading, and is acquainted with all the sciences. no man has more wit,--nor can any one engage the attention more than m^r morris. he was bred to the law, but i am told he disliked the profession, and turned merchant. he is engaged in some great mercantile matters with his namesake, m^r rob^t morris. this gentleman is about 38 years old, he has been unfortunate in losing one of his legs, and getting all the flesh taken off his right arm by a scald, when a youth."--pierce's notes, _am. hist. rev._, iii., 329. [25] "newport june 18th 1787 "sir- "the inclosed address, of which i presume your excellency has received a duplicate, was returned to me from new york after my arrival in this state. i flattered myself that our legislature, which convened on monday last, would have receded from the resolution therein refer'd to, and have complied with the recommendation of congress in sending deligates to the federal convention. the upper house, or governor, & council, embraced the measure, but it was negatived in the house of assembly by a large majority, notwithstanding the greatest exertions were made to support it. "being disappointed in their expectations, the minority in the administration and all the worthy citizens of this state, whose minds are well informd regreting the peculiarities of their situation place their fullest confidence in the wisdom & moderation of the national council, and indulge the warmest hopes of being favorably consider'd in their deliberations. from these deliberations they anticipate a political system which must finally be adopted & from which will result the safety, the honour, & the happiness of the united states. "permit me, sir, to observe, that the measures of our present legislature do not exhibit the real character of the state. they are equally reprobated, & abhored by gentlemen of the learned professions, by the whole mercantile body, & by most of the respectable farmers and mechanicks. the majority of the administration is composed of a licentious number of men, destitute of education, and many of them, void of principle. from anarchy and confusion they derive their temporary consequence, and this they endeavor to prolong by debauching the minds of the common people, whose attention is wholly directed to the abolition of debts both public & private. with these are associated the disaffected of every description, particularly those who were unfriendly during the war. their paper money system, founded in oppression & fraud, they are determined to support at every hazard. and rather than relinquish their favorite pursuit they trample upon the most sacred obligations. as a proof of this they refused to comply with a requisition of congress for repealing all laws repugnant to the treaty of peace with great britain, and urged as their principal reason, that it would be calling in question the propriety of their former measures. "these evils may be attributed, partly to the extreme freedom of our own constitution, and partly to the want of energy in the federal union: and it is greatly to be apprehended that they cannot speedily be removed but by uncommon and very serious exertions. it is fortunate however that the wealth and resources of this state are chiefly in possion of the well affected, & that they are intirely devoted to the public good. "i have the honor of being sir, "with the greatest veneration & esteem, "your excellencys very obedient & "most humble servant- ["j. m. varnum.] "his excellency "gen^l washington." the letter was inadvertently unsigned, but it was well known to come from general varnum. the enclosure was as follows: "providence, may 11. 1787. "gentlemen: "since the legislature of this state have finally declined sending delegates to meet you in convention for the purposes mentioned in the resolve of congress of the 21^{st} february 1787, the merchants tradesmen and others of this place, deeply affected with the evils of the present unhappy times, have thought proper to communicate in writing their approbation of your meeting, and their regret that it will fall short of a compleat representation of the federal union.- "the failure of this state was owing to the nonconcurrence of the upper house of assembly with a vote passed in the lower house, for appointing delegates to attend the said convention, at their session holden at newport on the first wednesday of the present month.- "it is the general opinion here and we believe of the well informed throughout this state, that full power for the regulation of the commerce of the united states, both foreign & domestick ought to be vested in the national council. "and that effectual arrangements should also be made for giving operation to the present powers of congress in their requisitions upon the states for national purposes.- "as the object of this letter is chiefly to prevent any impressions unfavorable to the commercial interest of this state, from taking place in our sister states from the circumstance of our being unrepresented in the present national convention, we shall not presume to enter into any detail of the objects we hope your deliberations will embrace and provide for being convinced they will be such as have a tendency to strengthen the union, promote commerce, increase the power & establish the credit of the united states. "the result of your deliberations tending to these desireable purposes we still hope may finally be approved and adopted by this state, for which we pledge our influence and best exertions.- "in behalf of the merchants, tradesmen &c. "we have the honour to be with perfect consideration & respect "your most obedient & "most humble servant's "john brown jabez bowen } tho^s lloyd halsey nicho^s brown } jos. nightingale john jenckes } levi hall welcome arnold } comtee. philip allen william russell } paul allen jeremiah olmy } william barton } "the hon^{ble} the chairman of the general convention "philadelphia" --_const. mss._ both letters are printed in the _documentary history of the constitution_, i., 277 and 275. m^r butler moved that the house provide ag^{st} interruption of business by absence of members,[26] and against licentious publications of their proceedings--to which was added by--m^r spaight[27]--a motion to provide that on the one hand the house might not be precluded by a vote upon any question, from revising the subject matter of it, when they see cause, nor, on the other hand, be led too hastily to rescind a decision, which was the result of mature discussion.--whereupon it was ordered that these motions be referred for the consideration of the committee appointed to draw up the standing rules and that the committee make report thereon. [26] "mr. butler is a character much respected for the many excellent virtues which he possesses. but as a politician or an orator, he has no pretensions to either. he is a gentleman of fortune, and takes rank among the first in south carolina. he has been appointed to congress, and is now a member of the legislature of south carolina. m^r butler is about 40 years of age; an irishman by birth."--pierce's notes, _am. hist. rev._, iii., 333. [27] "mr. spaight is a worthy man, of some abilities, and fortune. without possessing a genius to render him brilliant, he is able to discharge any public trust that his country may repose in him. he is about 31 years of age."--pierce's notes, _id._, iii., 332. adj^j till tomorrow 10. oclock. tuesday may 29. john dickenson and elbridge gerry, the former from delaware, the latter from mass^{ts} took their seats. the following rules were added, on the report of m^r wythe from the committee- that no member be absent from the house, so as to interrupt the representation of the state, without leave. that committees do not sit whilst the house shall be or ought to be, sitting. that no copy be taken of any entry on the journal during the sitting of the house without leave of the house. that members only be permitted to inspect the journal. that nothing spoken in the house be printed, or otherwise published or communicated without leave. that a motion to reconsider a matter which has been determined by a majority, may be made, with leave unanimously given, on the same day on which the vote passed; but otherwise not without one day's previous notice: in which last case, if the house agree to the reconsideration, some future day shall be assigned for that purpose. m^r c. pinkney[28] moved that a committee be appointed to superintend the minutes. [28] "mr. charles pinckney is a young gentleman of the most promising talents. he is, altho' only 24 y^s of age, in possession of a very great variety of knowledge. government, law, history, and phylosophy are his favorite studies, but he is intimately acquainted with every species of polite learning, and has a spirit of application and industry beyond most men. he speaks with great neatness and perspicuity, and treats every subject as fully, without running into prolixity, as it requires. he has been a member of congress, and served in that body with ability and eclat."--pierce's notes, _am. hist. rev._, iii., 333. m^r gov^r morris objected to it. the entry of the proceedings of the convention belonged to the secretary as their impartial officer. a committee might have an interest & bias in moulding the entry according to their opinions and wishes. the motion was negatived, 5 noes, 4 ays. mr. randolph[29] then opened the main business.[30] [29] "mr. randolph is governor of virginia,--a young gentleman in whom unite all the accomplishments of the scholar, and the statesman. he came forward with the postulata, or first principles, on which the convention acted, and he supported them with a force of eloquence and reasoning that did him great honor. he has a most harmonious voice, a fine person and striking manners. mr. randolph is about 32 years of age."--pierce's notes, _id._, iii., 332. [30] in the ms. in randolph's hand: "[here insert his speech including his resolutions]." the speech also is in randolph's hand, having been furnished by him. he expressed his regret, that it should fall to him, rather than those, who were of longer standing in life and political experience, to open the great subject of their mission. but, as the convention had originated from virginia, and his colleagues supposed that some proposition was expected from them, they had imposed this task on him. he then commented on the difficulty of the crisis, and the necessity of preventing the fulfilment of the prophecies of the american downfal. he observed that in revising the foederal system we ought to inquire 1. into the properties, which such a government ought to possess, 2. the defects of the confederation, 3. the danger of our situation & 4. the remedy. 1. the character of such a government ought to secure 1. against foreign invasion: 2. against dissensions between members of the union, or seditions in particular states: 3. to procure to the several states various blessings, of which an isolated situation was incapable: 4. to be able to defend itself against encroachment: & 5. to be paramount to the state constitutions. 2. in speaking of the defects of the confederation he professed a high respect for its authors, and considered them as having done all that patriots could do, in the then infancy of the science, of constitutions, & of confederacies,--when the inefficiency of requisitions was unknown--no commercial discord had arisen among any states--no rebellion had appeared as in mass^{ts}--foreign debts had not become urgent--the havoc of paper money had not been foreseen--treaties had not been violated--and perhaps nothing better could be obtained from the jealousy of the states with regard to their sovereignty. he then proceeded to enumerate the defects. 1. that the confederation produced no security against foreign invasion; congress not being permitted to prevent a war nor to support it by their own authority--of this he cited many examples; most of which tended to shew, that they could not cause infractions of treaties or of the law of nations to be punished: that particular states might by their conduct provoke war without controul; and that neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money. 2, that the foederal government could not check the quarrels between states, nor a rebellion in any, not having constitutional power nor means to interpose according to the exigency. 3, that there were many advantages, which the u. s. might acquire, which were not attainable under the confederation--such as a productive impost--counteraction of the commercial regulations of other nations--pushing of commerce ad libitum,--&c &c. 4, that the foederal government could not defend itself against encroachments from the states. 5, that it was not even paramount to the state constitutions, ratified as it was in many of the states. 3. he next reviewed the danger of our situation, appealed to the sense of the best friends of the u. s. the prospect of anarchy from the laxity of government every where; and to other considerations. 4. he then proceeded to the remedy; the basis of which he said must be the republican principle. he proposed as conformable to his ideas the following resolutions, which he explained one by one. 1. resolved that the articles of confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, "common defence, security of liberty, and general welfare." 2. res^d therefore that the rights of suffrage in the national legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases. 3. res^d that the national legislature ought to consist of two branches. 4. res^d that the members of the first branch of the national legislature ought to be elected by the people of the several states every ---for the term of ----; to be of the age of ---years at least, to receive liberal stipends by which they may be compensated for the devotion of their time to the public service; to be ineligible to any office established by a particular state, or under the authority of the united states, except those peculiarly belong to the functions of the first branch, during the term of service, and for the space of ---after its expiration; to be incapable of re-election for the space of ---after the expiration of their term of service, and to be subject to recall. 5. resol^d that the members of the second branch of the national legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual legislatures, to be of the age of ---years at least; to hold their offices for a term sufficient to ensure their independency; to receive liberal stipends, by which they may be compensated for the devotion of their time to the public service; and to be ineligible to any office established by a particular state, or under the authority of the united states, except those peculiarly belonging to the functions of the second branch, during the term of service; and for the space of ---after the expiration thereof. 6. resolved that each branch ought to possess the right of originating acts; that the national legislature ought to be empowered to enjoy the legislative rights vested in congress by the confederation & moreover to legislate in all cases to which the separate states are incompetent, or in which the harmony of the united states may be interrupted by the exercise of individual legislation; to negative all laws passed by the several states contravening in the opinion of the national legislature the articles of union; and to call forth the force of the union ag^{st} any member of the union failing to fulfil its duty under the articles thereof. 7. res^d that a national executive be instituted; to be chosen by the national legislature for the term of ---years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the national laws, it ought to enjoy the executive rights vested in congress by the confederation. 8. res^d that the executive and a convenient number of the national judiciary, ought to compose a council of revision with authority to examine every act of the national legislature before it shall operate, & every act of a particular legislature before a negative thereon shall be final; and that the dissent of the said council shall amount to a rejection, unless the act of the national legislature be again passed, or that of a particular legislature be again negatived by ---of the members of each branch. 9. res^d that a national judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the national legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. that the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all piracies & felonies on the high seas, captures from an enemy: cases in which foreigners or citizens of other states applying to such jurisdictions may be interested, or which respect the collection of the national revenues; impeachments of any national officers, and questions which may involve the national peace and harmony. 10. resolv^d that provision ought to be made for the admission of states lawfully arising within the limits of the united states, whether from a voluntary junction of government & territory or otherwise, with the consent of a number of voices in the national legislature less than the whole. 11. res^d that a republican government & the territory of each state, except in the instance of a voluntary junction of government & territory, ought to be guarantied by the united states to each state. 12. res^d that provision ought to be made for the continuance of congress and their authorities and privileges, until a given day after the reform of the articles of union shall be adopted, and for the completion of all their engagements. 13. res^d that provision ought to be made for the amendment of the articles of union whensoever it shall seem necessary, and that the assent of the national legislature ought not to be required thereto. 14. res^d that the legislative executive & judiciary powers within the several states ought to be bound by oath to support the articles of union. 15. res^d that the amendments which shall be offered to the confederation, by the convention ought at a proper time, or times, after the approbation of congress to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures to be expressly chosen by the people to consider & decide thereon. he concluded with an exhortation, not to suffer the present opportunity of establishing general peace, harmony, happiness and liberty in the u. s. to pass away unimproved.[31] [31] this abstract of the speech was furnished to j. m. by m^r randolph and is in his handwriting. as a report of it from him had been relied on, it was omitted by j. m.--_madison's note._ the fifteen resolutions, constituting the "virginia plan," are in madison's handwriting. it was then resolved--that the house will tomorrow resolve itself into a committee of the whole house to consider of the state of the american union--and that the propositions moved by m^r randolph be referred to the said committee. m^r charles pinkney laid before the house the draft of a federal government which he had prepared, to be agreed upon between the free and independent states of america.[32]--m^r p. plan ordered that the same be referred to the committee of the whole appointed to consider the state of the american union.[33] [32] robert yates, delegate from new york, kept notes of the proceedings of the convention, until he left july 5th, with his colleague, john lansing. they wrote a joint letter to governor clinton afterwards, giving their reasons: "we were not present at the completion of the new constitution; but before we left the convention, its principles were so well established as to convince us, that no alteration was to be expected to conform it to our ideas of expediency and safety."--_secret proceedings of the federal convention_, 10. yates's notes are quoted here, whenever they are at variance with madison's. he gives pinckney's motion as follows: "mr. c. pinckney, a member from south carolina, then added, that he had reduced his ideas of a new government to a system, which he read, and confessed that it was grounded on the same principle as of the above [the randolph] resolutions."--_id._, 97. [33] charles pinckney wrote to john quincy adams: "wingaw near georgetown december 12 1818 "sir "i have just had the honour to receive your favour--being at present absent from charleston on a visit to my planting interest in this neighbourhood i shall in consequence of your letter shorten my stay here considerably & return to town for the purpose of complying with your request as soon as possible--from an inspection of my old papers not long ago i know it was then easily in my power to have complied with your request--i still hope it is & as soon as i return to my residence in charleston will again, or as quickly as i can write you on it to prevent delay. "the draught of the constitution proposed by me was divided into a number of articles & was in complete detail--the resolutions offered by m^r randolph were merely general ones & as far as i recollect they were both referred to the same committee. "with great respect & esteem" &c. --_dept. of state mss._, miscellaneous letters. three weeks later he wrote again: "sir "on my return to this city as i promised i examined carefully all the numerous notes & papers which i had retained relating to the federal convention--among them i found several rough draughts of the constitution i proposed to the convention--although they differed in some measure from each other in the wording & arrangement of the articles--yet they were all substantially the same--they all proceeded upon the idea of throwing out of view the attempt to amend the existing confederation (then a very favorite idea of a number) & proceeding de novo--of a division of the powers of government into legislative executive & judicial & of making the government to operate directly upon the people & not upon the states. my plan was substantially adopted in the sequel except as to the senate & giving more power to the executive than i intended--the force of vote which the small & middling states had in the convention prevented our obtaining a proportional representation in more than one branch & the great powers given to the president were never intended to have been given to him while the convention continued in that patient & coolly deliberative situation in which they had been for nearly the whole of the preceding five months of their session nor was it until within the last week or ten days that almost the whole of the executive department was altered--i can assure you as a fact that for more than four months & a half out of five the power of exclusively making treaties, appointing for the ministers & judges of the supreme court was given to the senate after numerous debates & consideration of the subject both in committee of the whole & in the house--this i not only aver but can prove by printed documents in my possession to have been the case--& should i ever have the pleasure to see you & converse on the subject will state to you some things relative to this business that may be new & perhaps surprising to you--the veil of secrecy from the proceedings of the convention being removed by congress & but very few of the members alive would make disclosures now of the secrets there acted less improper than before--with the aid of the journal & the numerous notes & memorandums i have preserved should now be in my power to give a view of the almost insuperable difficulties the convention had to encounter & of the conflicting opinions of the members i believe should have attempted it had i not always understood m^r madison intended it--he alone i believe possessed & retained more numerous & particular notes of their proceedings than myself. i will thank you sir to do me the honour to send me or to get the president to direct a copy of the journal of the convention to be sent me as also of the secret journals of congress should it be considered not improper in me to make the request. "i have already informed you i have several rough draughts of the constitution i proposed & that they are all substantially the same differing only in words & the arrangement of the articles--at the distance of nearly thirty two years it is impossible for me now to say which of the 4 or 5 draughts i have was the one but enclosed i send you the one i believe was it--i repeat however that they are substantially the same differing only in form & unessentials--it may be necessary to remark that very soon after the convention met i changed & avowed candidly the change of my opinion on giving the power to congress to revise the state laws in certain cases & in giving the exclusive power to the senate to declare war thinking it safer to refuse the first altogether & to vest the latter in congress--i will thank you to acknowledge by a line the receipt of the draught & this. "with very great respect & esteem "i have the honour to be your most "obedient servant "charles pinckney. "december 30 1818 "in charleston."--_const. mss._ the plan is written upon paper of the same size as the letter, and with the same ink. it is undoubtedly contemporaneous with the letter. madison wrote the following note to accompany his journal: "the length of the document laid before the convention, and other circumstances having prevented the taking of a copy at the time, that which is here inserted was taken from the paper furnished to the secretary of state, and contained in the journal of the convention published in 1819. on comparing the paper with the constitution in its final form, or in some of its stages; and with the propositions, and speeches of m^r pinckney in the convention, it would seem that considerable errour must have crept into the paper; occasioned possibly by the loss of the document laid before the convention (neither that nor the resolutions offered by m^r patterson being among the preserved papers) and by a consequent resort for a copy to the rough draught, in which erasures and interlineations following what passed in the convention, might be confounded with the original text, and after a lapse of more than thirty years, confounded also in the memory of the author. "there is in the paper a similarity in some cases, and an identity in others, with details, expressions, and definitions, the results of critical discussions and modifications that can not be ascribed to accident or anticipation. "examples may be noticed in article viii of the paper; which is remarkable also for the circumstance, that whilst it specifies the functions of the president, no provision is contained in the paper for the election of such an officer, nor indeed for the appointment of any executive magistracy; notwithstanding the evident purpose of the author to provide an _entire_ plan of a federal government. "again, in several instances where the paper corresponds with the constitution, it is at variance with the ideas of m^r pinckney, as decidedly expressed in his propositions, and in his arguments, the former in the journal of the convention, the latter in the report of its debates: thus in art: viii of the paper, provision is made for removing the president by impeachment; when it appears that in the convention, july 20. he was opposed to any impeachability of the executive magistrate: in art: iii, it is required that all money-bills shall originate in the first branch of the legislature; which he strenuously opposed aug: 8 and again aug: 11: in art: v members of each house are made ineligible to, as well as incapable of holding, any office under the union &c. as was the case at one stage of the constitution; a disqualification highly disapproved and opposed by him aug: 14. "a still more conclusive evidence of errour in the paper is seen in art: iii, which provides, as the constitution does, that the first branch of the legislature shall be chosen by the people of the several states; whilst it appears that on the 6^{th} of june, a few days only after the draft was laid before the convention, its author opposed that mode of choice, urging & proposing in place of it, an election by the legislatures of the several states. "the remarks here made tho' not material in themselves, were due to the authenticity and accuracy aimed at, in this record of the proceedings of a publick body, so much an object, sometimes, of curious research, as at all times, of profound interest."--_mad. mss._ this note, as given in gilpin's _madison papers_ (_1840_), is freely edited. the pinckney plan is given here as pinckney sent it to adams. chief-justice charles c. nott, of the u. s. court of claims, informs the editor that correspondence with pinckney's descendants reveals the fact that none of the notes to which he alludes in his letters are extant. the letter of december 30, 1818, and plan, are printed in _the documentary history of the constitution_, i., 309 _et seq._ [illustration: charles pinckney's letter. (reduced.)] [illustration: the pinckney draft. (reduced.)] we the people of the states of new hampshire massachusetts rhode island & providence plantations connecticut new york new jersey pennsylvania delaware maryland virginia north carolina south carolina & georgia do ordain, declare & establish the following constitution for the government of ourselves & posterity. article 1: the style of this government shall be the united states of america & the government shall consist of supreme legislative executive & judicial powers. 2 the legislative power shall be vested in a congress to consist of two separate houses--one to be called the house of delegates & the other the senate who shall meet on the ------day of ---in every year. 3 the members of the house of delegates shall be chosen every ---year by the people of the several states & the qualification of the electors shall be the same as those of the electors in the several states for their legislatures--each member shall have been a citizen of the united states for ---years; and shall be of ---years of age & a resident in the state he is chosen for.----until a census of the people shall be taken in the manner herein after mentioned the house of delegates shall consist of ---to be chosen from the different states in the following proportions: for new hampshire, ----; for massachusetts, ---for rhode island, ---for connecticut, ---for new york, ---for new jersey, ---for pennsylvania, ---for delaware, ---for mary^{ld}, ---for virginia, ---for north carolina, ---for south carolina, ---for georgia, ---& the legislature shall hereafter regulate the number of delegates by the number of inhabitants according to the provisions herein after made, at the rate of one for every ---thousand.--all money bills of every kind shall originate in the house of delegates & shall not be altered by the senate. the house of delegates shall exclusively possess the power of impeachment & shall choose it's own officers & vacancies therein shall be supplied by the executive authority of the state in the representation from which they shall happen. 4 the senate shall be elected & chosen by the house of delegates which house immediately after their meeting shall choose by ballot ---senators from among the citizens & residents of new hampshire ---from among those of massachusetts ---from among those of rhode island ---from among those of connecticut ---from among those of new york ---from among those of new jersey ---from among those of pennsylvania ---from among those of delaware ---from among those of maryland ---from among those of virginia ---from among those of north carolina ---from among those of south carolina & ---from among those of georgia ---the senators chosen from new hampshire massachusetts rhode island & connecticut shall form one class--those from new york new jersey pennsylvania & delaware one class--& those from maryland virginia north carolina south carolina & georgia one class. the house of delegates shall number these classes one two & three & fix the times of their service by lot--the first class shall serve for ---years--the second for ---years & the third for ---years--as their times of service expire the house of delegates shall fill them up by elections for ---years & they shall fill all vacancies that arise from death or resignation for the time of service remaining of the members so dying or resigning. each senator shall be ---years of age at least--shall have been a citizen of the united states 4 years before his election & shall be a resident of the state he is chosen from. the senate shall choose its own officers. 5 each state shall prescribe the time & manner of holding elections by the people for the house of delegates & the house of delegates shall be the judges of the elections returns & qualifications of their members. in each house a majority shall constitute a quorum to do business--freedom of speech & debate in the legislature shall not be impeached or questioned in any place out of it & the members of both houses shall in all cases except for treason felony or breach of the peace be free from arrest during their attendance at congress & in going to & returning from it--both houses shall keep journals of their proceedings & publish them except on secret occasions & the yeas & nays may be entered thereon at the desire of one ---of the members present. neither house without the consent of the other shall adjourn for more than ---days nor to any place but where they are sitting. the members of each house shall not be eligible to or capable of holding any office under the union during the time for which they have been respectively elected nor the members of the senate for one year after. the members of each house shall be paid for their services by the states which they represent. every bill which shall have passed the legislature shall be presented to the president of the united states for his revision--if he approves it he shall sign it--but if he does not approve it he shall return it with his objections to the house it originated in which house if two thirds of the members present, notwithstanding the president's objections agree to pass it, shall send it to the other house with the president's objections, where if two thirds of the members present also agree to pass it, the same shall become a law--& all bills sent to the president & not returned by him within ---days shall be laws unless the legislature by their adjournment prevent their return in which case they shall not be laws. 6^{th} the legislature of the united states shall have the power to lay & collect taxes duties imposts & excises to regulate commerce with all nations & among the several states. to borrow money & emit bills of credit to establish post offices. to raise armies to build & equip fleets to pass laws for arming organizing & disciplining the militia of the united states to subdue a rebellion in any state on application of its legislature to coin money & regulate the value of all coins & fix the standard of weights & measures to provide such dock yards & arsenals & erect such fortifications as may be necessary for the united states & to exercise exclusive jurisdiction therein to appoint a treasurer by ballot to constitute tribunals inferior to the supreme court to establish post & military roads to establish & provide for a national university at the seat of the government of the united states to establish uniform rules of naturalization to provide for the establishment of a seat of government for the united states not exceeding ---miles square in which they shall have exclusive jurisdiction to make rules concerning captures from an enemy to declare the law & punishment of piracies & felonies at sea & of counterfeiting coin & of all offences against the laws of nations to call forth the aid of the militia to execute the laws of the union enforce treaties suppress insurrections and repel invasions and to make all laws for carrying the foregoing powers into execution. the legislature of the united states shall have the power to declare the punishment of treason which shall consist only in levying war against the united states or any of them or in adhering to their enemies. no person shall be convicted of treason but by the testimony of two witnesses. the proportion of direct taxation shall be regulated by the whole number of inhabitants of every description which number shall within ---years after the first meeting of the legislature & within the term of every ---year after be taken in the manner to be prescribed by the legislature no tax shall be laid on articles exported from the states--nor capitation tax but in proportion to the census before directed all laws regulating commerce shall require the assent of two thirds of the members present in each house--the united states shall not grant any title of nobility--the legislature of the united states shall pass no law on the subject of religion, nor touching or abridging the liberty of the press nor shall the privilege of the writ of habeas corpus ever be suspended except in case of rebellion or invasion. all acts made by the legislature of the united states pursuant to this constitution & all treaties made under the authority of the united states shall be the supreme law of the land & all judges shall be bound to consider them as such in their decisions. 7 the senate shall have the sole & exclusive power to declare war & to make treaties & to appoint ambassadors & other ministers to foreign nations & judges of the supreme court. they shall have the exclusive power to regulate the manner of deciding all disputes & controversies now subsisting or which may arise between the states respecting jurisdiction or territory. 8 the executive power of the united states shall be vested in a president of the united states of america which shall be his style & his title shall be his excellency. he shall be elected for ---years & shall be reeligible. he shall from time to time give information to the legislature of the state of the union & recommend to their consideration the measures he may think necessary--he shall take care that the laws of the united states be duly executed: he shall commission all the officers of the united states & except as to ambassadors other ministers and judges of the supreme court he shall nominate & with the consent of the senate appoint all other officers of the united states. he shall receive public ministers from foreign nations & may correspond with the executives of the different states. he shall have power to grant pardons & reprieves except in impeachments--he shall be commander in chief of the army & navy of the united states & of the militia of the several states & shall receive a compensation which shall not be increased or diminished during his continuance in office. at entering on the duties of his office he shall take an oath faithfully to execute the duties of a president of the united states.--he shall be removed from his office on impeachment by the house of delegates & conviction in the supreme court of treason bribery or corruption--in case of his removal death resignation or disability the president of the senate shall exercise the duties of his office until another president be chosen--& in case of the death of the president of the senate the speaker of the house of delegates shall do so. 9 the legislature of the united states shall have the power and it shall be their duty to establish such courts of law equity & admiralty as shall be necessary--the judges of the courts shall hold their offices during good behaviour & receive a compensation, which shall not be increased or diminished during their continuance in office--one of these courts shall be termed the supreme court whose jurisdiction shall extend to all cases arising under the laws of the united states or affecting ambassadors other public ministers & consuls--to the trial of impeachment of officers of the united states--to all cases of admiralty & maritime jurisdiction--in cases of impeachment affecting ambassadors and other public ministers this jurisdiction shall be original & in all other cases appellate---all criminal offences (except in cases of impeachment) shall be tried in the state where they shall be committed--the trials shall be open & public & shall be by jury. 10 immediately after the first census of the people of the united states the house of delegates shall apportion the senate by electing for each state out of the citizens resident therein one senator for every ---members each state shall have in the house of delegates--each state shall be entitled to have at least one member in the senate. 11 no state shall grant letters of marque & reprisal or enter into treaty or alliance or confederation nor grant any title of nobility nor without the consent of the legislature of the united states lay any impost on imports--nor keep troops or ships of war in time of peace--nor enter into compacts with other states or foreign powers or emit bills of credit or make any thing but gold silver or copper a tender in payment of debts nor engage in war except for self defence when actually invaded or the danger of invasion be so great as not to admit of a delay until the government of the united states can be informed thereof--& to render these prohibitions effectual the legislature of the united states shall have the power to revise the laws of the several states that may be supposed to infringe the powers exclusively delegated by this constitution to congress & to negative & annul such as do. 12 the citizens of each state shall be entitled to all privileges & immunities of citizens in the several states--any person charged with crimes in any state fleeing from justice to another shall on demand of the executive of the state from which he fled be delivered up & removed to the state having jurisdiction of the offence. 13 full faith shall be given in each state to the acts of the legislature & to the records & judicial proceedings of the courts & magistrates of every state. 14 the legislature shall have power to admit new states into the union on the same terms with the original states provided two thirds of the members present in both houses agree. 15 on the application of the legislature of a state the united states shall protect it against domestic insurrection. 16 if two thirds of the legislatures of the states apply for the same the legislature of the united states shall call a convention for the purpose of amending the constitution--or should congress, with the consent of two thirds of each house, propose to the states amendments to the same--the agreement of two thirds of the legislatures of the states shall be sufficient to make the said amendments parts of the constitution. the ratification of the conventions of ---states shall be sufficient for organizing this constitution.[34] [34] "... what will be the result of their meeting i cannot with any certainty determine, but i hardly think much good can come of it; the people of america don't appear to me to be ripe for any great innovations & it seems they are ultimately to ratify or reject: the weight of gen^l washington as you justly observe is very great in america, but i hardly think it is sufficient to induce the people to pay money or part with power. "the delegates from the eastw^d are for a very strong government, & wish to prostrate all y^e state legislatures, & form a general system out of y^e whole; but i don't learn that the people are with them, on y^e contrary in massachusetts they think that government too strong, & are about rebelling again, for the purpose of making it more democratical: in connecticut they have rejected the requisition for y^e present year decidedly, & no man there would be elected to the office of a constable if he was to declare that he meant to pay a copper towards the domestic debt:--r. island has refused to send members--the cry there is for a good government after they have paid their debts in depreciated paper:--first demolish the philistines (i. e. their creditors) then for _propiety_. "n. hampshire has not paid a shilling, since peace, & does not ever mean to pay on to all eternity:--if it was attempted to tax the people for y^e domestic debt 500 shays would arise in a fortnight.--in n. york they pay well because they can do it by plundering n. jersey & connecticut.--jersey will go great lengths from motives of revenge and interest: pensylvany will join provided you let the sessions of the executive of america be fixed in philad^a & give her other advantages in trade to compensate for the loss of state power. i shall make no observations on the southern states, but i think they will be (perhaps from different motives) as little disposed to part with efficient power as any in the union...."--william grayson to james monroe, new york, may 29, 1787. _monroe mss._ adjourned. wednesday may 30. roger sherman (from connecticut) took his seat. the house went into committee of the whole on the state of the union. m^r gorham was elected to the chair by ballot. the propositions of m^r randolph which had been referred to the co[~m]ittee being taken up. he moved on the suggestion of m^r g. morris, that the first of his propositions to wit "resolved that the articles of confederation ought to be so corrected & enlarged, as to accomplish the objects proposed by their institution; namely, common defence, security of liberty, and general welfare,--should be postponed, in order to consider the 3 following: 1. that a union of the states merely federal will not accomplish the objects proposed by the articles of confederation, namely common defence, security of liberty, & gen^l welfare. 2. that no treaty or treaties among the whole or part of the states, as individual sovereignties, would be sufficient. 3. that a _national_ government ought to be established consisting of a _supreme_ legislative, executive & judiciary. the motion for postponing was seconded by m^r gov^r morris and unanimously agreed to. some verbal criticisms were raised ag^{st} the first proposition, and it was agreed on motion of m^r butler seconded by m^r randolph, to pass on to the third, which underwent a discussion, less however on its general merits than on the force and extent of the particular terms _national & supreme_. m^r charles pinkney wished to know of m^r randolph, whether he meant to abolish the state govern^{ts} altogether. m^r r. replied that he meant by these general propositions merely to introduce the particular ones which explained the outlines of the system he had in view. m^r butler said he had not made up his mind on the subject, and was open to the light which discussion might throw on it. after some general observations he concluded with saying that he had opposed the grant of powers to cong^s heretofore, because the whole power was vested in one body. the proposed distribution of the powers into different bodies changed the case, and would induce him to go great lengths. gen^l pinkney[35] expressed a doubt whether the act of cong^s reco[~m]ending the convention, or the commissions of the deputies to it, could authorize a discussion of a system founded on different principles from the federal constitution. [35] "m^r ch^s cotesworth pinckney is a gentleman of family and fortune in his own state. he has received the advantage of a liberal education, and possesses a very extensive degree of legal knowledge. when warm in a debate he sometimes speaks well,--but he is generally considered an indifferent orator. mr. pinckney was an officer of high rank in the american army, and served with great reputation through the war. he is now about 40 years of age."--pierce's notes, _am. hist. rev._, iii., 333. m^r gerry[36] seemed to entertain the same doubt. [36] "m. gerry's character is marked for integrity and perseverance. he is a hesitating and laborious speaker;--possesses a great degree of confidence and goes extensively into all subjects that he speaks on, without respect to elegance or flower of diction. he is connected and sometimes clear in his arguments, conceives well, and cherishes as his first virtue, a love for his country. mr. gerry is very much of a gentleman in his principles and manners;--he has been engaged in the mercantile line and is a man of property. he is about 37 years of age."--pierce's notes, _am. hist. rev._, iii., 325. m^r gov^r morris explained the distinction between a _federal_ and _national_, _supreme_, gov^t; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and _compulsive_ operation. he contended that in all communities there must be one supreme power, and one only. m^r mason observed that the present confederation was not only deficient in not providing for coercion & punishment ag^{st} delinquent states; but argued very cogently that punishment could not in the nature of things be executed on the states collectively, and therefore that such a gov^t was necessary as could directly operate on individuals, and would punish those only whose guilt required it. m^r sherman[37] who took his seat today, admitted that the confederation had not given sufficient power to cong^s and that additional powers were necessary; particularly that of raising money which he said would involve many other powers. he admitted also that the general & particular jurisdictions ought in no case to be concurrent. he seemed however not to be disposed to make too great inroads on the existing system; intimating as one reason, that it would be wrong to lose every amendment, by inserting such as would not be agreed to by the states. [37] "m^r sherman exhibits the oddest shaped character i ever remember to have met with. he is awkward, un-meaning, and unaccountably strange in his manner. but in his train of thinking there is something regular, deep, and comprehensive; yet the oddity of his address, the vulgarisms that accompany his public speaking, and that strange new england cant which runs through his public as well as his private speaking make everything that is connected with him grotesque and laughable;--and yet he deserves infinite praise,--no man has a better heart or a clearer head. if he cannot embellish he can furnish thoughts that are wise and useful. he is an able politician and extremely artful in accomplishing any particular object;--it is remarked that he seldom fails. i am told he sits on the bench in connecticut, and is very correct in the discharge of his judicial functions. in the early part of his life he was a shoe-maker;--but despising the lowness of his condition, he turned almanack maker, and so progressed upwards to a judge. he has been several years a member of congress, and discharged the duties of his office with honor and credit to himself, and advantage to the state he represented. he is about 60."--pierce's notes, _am. hist. rev._, iii., 326. it was moved by m^r read,[38] 2^{ded} by m^r ch^s cotesworth pinkney, to postpone the 3^d proposition last offered by m^r randolph viz that a national government ought to be established consisting of a supreme legislative executive and judiciary, in order to take up the following,--viz. "resolved that in order to carry into execution the design of the states in forming this convention, and to accomplish the objects proposed by the confederation a more effective government consisting of a legislative, executive and judiciary, ought to be established." the motion to postpone for this purpose was lost: yeas. massachusetts, connecticut, delaware, s. carolina--4. nays. n. y. pennsylvania, virginia, north carolina--4. [38] "m^r read is a lawyer and a judge;--his legal abilities are said to be very great, but his powers of oratory are fatiguing and tiresome to the last degree;--his voice is feeble and his articulation so bad that few can have patience to attend to him. he is a very good man, and bears an amiable character with those who know him. mr. read is about 50, of a low stature, and a weak constitution."--pierce's notes, _id._, iii., 330. on the question as moved by m^r butler, on the third proposition it was resolved in committee of whole that a national govern^t ought to be established consisting of a supreme legislative executive & judiciary,--mass^{ts} being ay.--connect.--no. n. york divided (col. hamilton ay. m^r yates no.) pen^a ay. delaware ay. virg^a ay. n. c. ay. s. c. ay. the following resolution, being the 2^d of those proposed by m^r randolph was taken up, viz.--"that the rights of suffrage in the national legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases." m^r madison[39] observing that the words, "_or to the number of free inhabitants_," might occasion debates which would divert the committee from the general question whether the principle of representation should be changed, moved that they might be struck out. [39] "mr. madison is a character who has long been in public life; and what is very remarkable every person seems to acknowledge his greatness. he blends together the profound politician, with the scholar. in the management of every great question he evidently took the lead in the convention, and tho' he cannot be called an orator, he is a most agreeable, eloquent, and convincing speaker. from a spirit of industry and application which he possesses in a most eminent degree, he always comes forward the best informed man of any point in debate. the affairs of the united states, he perhaps, has the most correct knowledge of, of any man in the union. he has been twice a member of congress, and was always thought one of the ablest members that ever sat in that council. mr. maddison is about 37 years of age, a gentleman of great modesty,--with a remarkable sweet temper. he is easy and unreserved among his acquaintance, and has a most agreeable style of conversation."--pierce's notes, _am. hist. rev._, iii., 331. m^r king observed that the quotas of contribution which would alone remain as the measure of representation, would not answer, because waving every other view of the matter, the revenue might hereafter be so collected by the general gov^t that the sums respectively drawn from the states would not appear, and would besides be continually varying. m^r madison admitted the propriety of the observation, and that some better rule ought to be found. col. hamilton moved to alter the resolution so as to read "that the rights of suffrage in the national legislature ought to be proportioned to the number of free inhabitiants." m^r spaight 2^{ded} the motion. it was then moved that the resolution be postponed, which was agreed to. m^r randolph and m^r madison then moved the following resolution--"that the rights of suffrage in the national legislature ought to be proportioned." it was moved and 2^{ded} to amend it by adding "and not according to the present system"--which was agreed to. it was then moved & 2^{ded} to alter the resolution so as to read "that the rights of suffrage in the national legislature ought not to be according to the present system." it was then moved & 2^{ded} to postpone the resolution moved by m^r randolph & m^r madison, which being agreed to: m^r madison, moved, in order to get over the difficulties, the following resolution--"that the equality of suffrage established by the articles of confederation ought not to prevail in the national legislature, and "that an equitable ratio of representation ought to be substituted." this was 2^{ded} by m^r gov^r morris, and being generally relished, would have been agreed to; when, m^r reed moved that the whole clause relating to the point of representation be postponed; reminding the com^e that the deputies from delaware were restrained by their co[~m]ission from assenting to any change of the rule of suffrage, and in case such a change should be fixed on, it might become their duty to retire from the convention. m^r gov^r morris observed that the valuable assistance of those members could not be lost without real concern, and that so early a proof of discord in the convention as the secession of a state, would add much to the regret; that the change proposed was however so fundamental an article in a national gov^t, that it could not be dispensed with. m^r madison observed that whatever reason might have existed for the equality of suffrage when the union was a federal one among sovereign states, it must cease when a national governm^t should be put into the place. in the former case, the acts of cong^s depended so much for their efficacy on the cooperation of the states, that these had a weight both within & without congress, nearly in proportion to their extent and importance. in the latter case, as the acts of the gen^l gov^t would take effect without the intervention of the state legislatures, a vote from a small state w^d have the same efficacy & importance as a vote from a large one, and there was the same reason for different numbers of representatives from different states, as from counties of different extents within particular states. he suggested as an expedient for at once taking the sense of the members on this point and saving the delaware deputies from embarrassment, that the question should be taken in committee, and the clause on report to the house, be postponed without a question there. this however did not appear to satisfy mr. read. by several it was observed that no just construction of the act of delaware, could require or justify a secession of her deputies, even if the resolution were to be carried thro' the house as well as the committee. it was finally agreed however that the clause should be postponed: it being understood that in the event the proposed change of representation would certainly be agreed to, no objection or difficulty being started from any other quarter than from delaware. the motion of mr. read to postpone being agreed to, the committee then rose. the chairman reported progress, and the house having resolved to resume the subject in committee to-morrow, adjourned to 10 o clock. thursday may 31[40] [40] "this day the state of new jersey was represented, so that there were now ten states in convention."--yates, _secret proceedings_, etc., 99. but in the _journal of the federal convention (1819)_, as in madison's account, new jersey is entered as present may 25th. on may 30 two votes are recorded by madison and in the _journal_ without new jersey. it is probable that an error was made in the _journal_ and that madison followed it. william pierce, from georgia took his seat.[41] [41] rufus king kept a few notes of the proceedings of the convention from may 31st to august 8th. they are meagre, but corroborate madison's report. see king's _life and correspondence of rufus king_, i., 587. pierce also kept a few rough notes of the proceedings which were printed in the _savannah georgian_, april 19, 21, 22, 23, 24, 25, 26, and 28, 1828, and reprinted in _the american historical review_, iii., 317 _et seq._ they throw little additional light on the debates, but wherever they do are quoted here, as are king's. in committee of the whole on mr. randolph's propositions. the 3^d resolution "that the national legislature ought to consist of two branches" was agreed to without debate or dissent, except that of pennsylvania, given probably from complaisance to doc^r franklin who was understood to be partial to a single house of legislation. resol: 4. first clause, "that the members of the first branch of the national legislature ought to be elected by the people of the several states," being taken up, m^r sherman opposed the election by the people, insisting that it ought to be by the state legislatures. the people he said, immediately should have as little to do as may be about the government. they want information and are constantly liable to be misled. m^r gerry. the evils we experience flow from the excess of democracy. the people do not want virtue, but are the dupes of pretended patriots. in mass^{ts} it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute. one principal evil arises from the want of due provision for those employed in the administration of governm^t. it would seem to be a maxim of democracy to starve the public servants. he mentioned the popular clamour in mass^{ts} for the reduction of salaries and the attack made on that of the gov^r though secured by the spirit of the constitution itself. he had he said been too republican heretofore: he was still however republican, but had been taught by experience the danger of the levelling spirit. m^r mason argued strongly for an election of the larger branch by the people. it was to be the grand depository of the democratic principle of the gov^t. it was, so to speak, to be our house of commons--it ought to know & sympathize with every part of the community; and ought therefore to be taken not only from different parts of the whole republic, but also from different districts of the larger members of it, which had in several instances particularly in virg^a, different interests and views arising from difference of produce, of habits &c &c. he admitted that we had been too democratic but was afraid we s^d incautiously run into the opposite extreme. we ought to attend to the rights of every class of the people. he had often wondered at the indifference of the superior classes of society to this dictate of humanity & policy, considering that however affluent their circumstances, or elevated their situations, might be, the course of a few years, not only might but certainly would, distribute their posterity throughout the lowest classes of society. every selfish motive therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of citizens. m^r wilson contended strenuously for drawing the most numerous branch of the legislature immediately from the people. he was for raising the federal pyramid to a considerable altitude, and for that reason wished to give it as broad a basis as possible. no government could long subsist without the confidence of the people. in a republican government this confidence was peculiarly essential. he also thought it wrong to increase the weight of the state legislatures by making them the electors of the national legislature. all interference between the general and local governm^{ts} should be obviated as much as possible. on examination it would be found that the opposition of states to federal measures had proceeded much more from the officers of the states, than from the people at large. m^r madison considered the popular election of one branch of the national legislature as essential to every plan of free government. he observed that in some of the states one branch of the legislature was composed of men already removed from the people by an intervening body of electors. that if the first branch of the general legislature should be elected by the state legislatures, the second branch elected by the first--the executive by the second together with the first; and other appointments again made for subordinate purposes by the executive, the people would be lost sight of altogether; and the necessary sympathy between them and their rulers and officers, too little felt. he was an advocate for the policy of refining the popular appointments by successive filtrations, but thought it might be pushed too far. he wished the expedient to be resorted to only in the appointment of the second branch of the legislature, and in the executive & judiciary branches of the government. he thought too that the great fabric to be raised would be more stable and durable, if it should rest on the solid foundation of the people themselves, than if it should stand merely on the pillars of the legislatures. m^r gerry did not like the election by the people. the maxims taken from the british constitution were often fallacious when applied to our situation which was extremely different. experience he said had shewn that the state legislatures drawn immediately from the people did not always possess their confidence. he had no objection however to an election by the people if it were so qualified that men of honor & character might not be unwilling to be joined in the appointments. he seemed to think the people might nominate a certain number out of which the state legislatures should be bound to choose.[42] [42] "mr. strong would agree to the principle, provided it would undergo a certain modification, but pointed out nothing."--pierce's notes, _am. hist. rev._, iii., 318. m^r butler thought an election by the people an impracticable mode. on the question for an election of the first branch of the national legislature, by the people, mass^{ts} ay. connec^t div^d. n. york ay. n. jersey no. pen^a ay. delaw^r div^d. v^a ay. n. c. ay. s. c. no. georg^a ay. the remaiã±g clauses of resolution 4^{th} relating to the qualifications of members of the national legislature, being posp^d nem. con., as entering too much into detail for general propositions. the committee proceeded to resolution 5. "that the second, (or senatorial) branch of the national legislature ought to be chosen by the first branch out of persons nominated by the state legislatures." m^r spaight contended that the 2^d branch ought to be chosen by the state legislatures and moved an amendment to that effect.[43] [43] "m^r king observed that the question called for was premature, and out of order,--that unless we go on regularly from one principle to the other we shall draw out our proceedings to an endless length."--pierce's notes, _am. hist. rev._, iii., 318. m^r butler apprehended that the taking so many powers out of the hands of the states as was proposed, tended to destroy all that balance and security of interests among the states which it was necessary to preserve; and called on m^r randolph the mover of the propositions, to explain the extent of his ideas, and particularly the number of members he meant to assign to this second branch. m^r rand^f observed that he had at the time of offering his propositions stated his ideas as far as the nature of general propositions required; that details made no part of the plan, and could not perhaps with propriety have been introduced. if he was to give an opinion as to the number of the second branch, he should say that it ought to be much smaller than that of the first; so small as to be exempt from the passionate proceedings to which numerous assemblies are liable. he observed that the general object was to provide a cure for the evils under which the u. s. laboured; that in tracing these evils to their origin every man had found it in the turbulance and follies of democracy: that some check therefore was to be sought for ag^{st} this tendency of our governments: and that a good senate seemed most likely to answer the purpose.[44] [44] "butler said that until the number of the senate could be known it would be impossible for him to give a vote on it."--pierce's notes, _am. hist. rev._, iii., 318. m^r king reminded the committee that the choice of the second branch as proposed (by m^r spaight) viz. by the state legislatures would be impracticable, unless it was to be very numerous, or _the idea of proportion_ among the states was to be disregarded. according to this _idea_, there must be 80 or 100 members to entitle delaware to the choice of one of them.--m^r spaight withdrew his motion. m^r wilson opposed both a nomination by the state legislatures, and an election by the first branch of the national legislature, because the second branch of the latter, ought to be independent of both. he thought both branches of the national legislature ought to be chosen by the people, but was not prepared with a specific proposition. he suggested the mode of chusing the senate of n. york to wit of uniting several election districts for one branch, in chusing members for the other branch, as a good model. m^r madison observed that such a mode would destroy the influence of the smaller states associated with larger ones in the same district; as the latter would chuse from within themselves, altho' better men might be found in the former. the election of senators in virg^a where large & small counties were often formed into one district for the purpose, had illustrated this consequence. local partiality, would often prefer a resident within the county or state, to a candidate of superior merit residing out of it. less merit also in a resident would be more known throughout his own state.[45] [45] "m^r butler moved to have the proposition relating to the first branch postponed, in order to take up another,--which was that the second branch of the legislature consist of blank. "m^r king objected to the postponement for the reasons which he had offered before."--pierce's notes, _id._, iii., 319. m^r sherman favored an election of one member by each of the state legislatures.[46] [46] according to pierce, mason spoke after sherman, and pinckney's motion is given more fully by pierce than by madison. "m^r mason was of opinion that it would be highly improper to draw the senate out of the first branch; that it would occasion vacancies which would cost much time, trouble, and expense to have filled up,--besides which it would make the members too dependent on the first branch. "m^r ch^s pinckney said he meant to propose to divide the continent into four divisions, out of which a certain number of persons sh^d be nominated, and out of that nomination to appoint a senate."--pierce's notes, _amer. hist. rev._, iii., 319. m^r pinkney moved to strike out the "nomination by the state legislatures;" on this question. [47]mass^{ts} no. con^t no. n. y. no. n. j. no. pen^a no. del. div^d v^a no. n. c. no. s. c. no. georg no. [47] this question is omitted in the printed journal, & the votes applied to the succeeding one, instead of the votes as here stated.--madison's note. on the whole question for electing by the first branch out of nominations by the state legislatures, mass. ay. con^t no. n. y. no. n. jersey, no. pen^a no. del. no. virg^a ay. n. c. no. s. c. ay. g^a no. so the clause was disagreed to & a chasm left in this part of the plan. the sixth resolution stating the cases in which the national legislature ought to legislate was next taken into discussion: on the question whether each branch sh^d originate laws, there was an unanimous affirmative without debate. on the question for transferring all the legislative power of the existing cong^s to this assembly, there was also a silent affirmative nem. con. on the proposition for giving "legislative power in all cases to which the state legislatures were individually incompetent," m^r pinkney & m^r rutledge[48] objected to the vagueness of the term _incompetent_, and said they could not well decide how to vote until they should see an exact enumeration of the powers comprehended by this definition.[49] [48] "mr. rutledge is one of those characters who was highly mounted at the commencement of the late revolution;--his reputation in the first congress gave him a distinguished rank among the american worthies. he was bred to the law, and now acts as one of the chancellors of south carolina. this gentleman is much famed in his own state as an orator, but in my opinion he is too rapid in his public speaking to be denominated an agreeable orator. he is undobotedly a man of abilities, and a gentleman of distinction and fortune. mr. rutledge was once governor of south carolina. he is about 48 years of age."--pierce's notes, _amer. hist. rev._, iii., 333. [49] according to pierce: "m^r sherman was of opinion that it would be too indefinitely expressed,--and yet it would be hard to define all the powers by detail. it appeared to him that it would be improper for the national legislature to negative all the laws that were connected with the states themselves. "m^r madison said it was necessary to adopt some general principles on which we should act,--that we were wandering from one thing to another without seeming to be settled in any one principle. "m^r wythe observed that it would be right to establish general principles before we go into detail, or very shortly gentlemen would find themselves in confusion, and would be obliged to have recurrence to the point from whence they sat out. "m^r king was of opinion that the principles ought first to be established before we proceed to the framing of the act. he apprehends that the principles only go so far as to embrace all the power that is given up by the people to the legislature, and to the federal government, but no farther. "m^r randolph was of opinion that it would be impossible to define the powers and the length to which the federal legislature ought to extend just at this time. "m^r wilson observed that it would be impossible to enumerate the powers which the federal legislature ought to have."--pierce's notes, _id._, iii., 319, 320. m^r butler repeated his fears that we were running into an extreme in taking away the powers of the states, and called on mr. randolph for the extent of his meaning. m^r randolph disclaimed any intention to give indefinite powers to the national legislature, declaring that he was entirely opposed to such an inroad on the state jurisdictions, and that he did not think any considerations whatever could ever change his determination. his opinion was fixed on this point. m^r madison said that he had brought with him into the convention a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the national legislature; but had also brought doubts concerning its practicability. his wishes remained unaltered; but his doubts had become stronger. what his opinion might ultimately be he could not yet tell. but he should shrink from nothing which should be found essential to such a form of gov^t as would provide for the safety, liberty and happiness of the community. this being the end of all our deliberations, all the necessary means for attaining it must, however reluctantly, be submitted to. on the question for giving powers, in cases to which the states are not competent--mass^{ts} ay. con^t div^d. (sherman no. elseworth ay.) n. y. ay. n. j. ay. p^a ay. del. ay. v^a ay. n. c. ay. s. carolina ay. georg^a ay. the other clauses giving powers necessary to preserve harmony among the states to negative all state laws contravening in the opinion of the nat. leg. the articles of union, down to the last clause, (the words "or any treaties subsisting under the authority of the union," being added after the words "contravening &c. the articles of the union," on motion of d^r franklin) were agreed to with^t debate or dissent. the last clause of resolution 6, authorizing an exertion of the force of the whole ag^{st} a delinquent state came next into consideration. m^r madison, observed that the more he reflected on the use of force, the more he doubted, the practicability, the justice and the efficacy of it when applied to people collectively and not individually.--a union of the states containing such an ingredient seemed to provide for its own destruction. the use of force ag^{st} a state, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. he hoped that such a system would be framed as might render this resource unnecessary, and moved that the clause be postponed. this motion was agreed to, nem. con. the committee then rose & the house adjourned.[50] [50] "when the convention first opened at philadelphia, there were a number of propositions brought forward as great leading principles for the new government to be established for the united states. a copy of these propositions was given to each member with an injunction to keep everything a profound secret. one morning, by accident, one of the members dropt his copy of the propositions, which being luckily picked up by general mifflin was presented to general washington, our president, who put it in his pocket. after the debates of the day were over, and the question for adjournment was called for, the general arose from his seat, and previous to his putting the question addressed the convention in the following manner,- "'gentlemen "'i am sorry to find that some one member of this body, has been so neglectful of the secrets of the convention as to drop in the state house, a copy of their proceedings, which by accident was picked up and delivered to me this morning. i must entreat gentlemen to be more careful, lest our transactions get into the news papers, and disturb the public repose by premature speculations. i know not whose paper it is, but there it is [throwing it down on the table,] let him who owns it take it.' at the same time he bowed, picked up his hat, and quitted the room with a dignity so severe that every person seemed alarmed; for my part i was extremely so, for putting my hand in my pocket i missed my copy of the same paper, but advancing up to the table my fears soon dissipated; i found it to be in the hand writing of another person. when i went to my lodgings at the indian queen, i found my copy in a coat pocket which i had pulled off that morning. it is something remarkable that no person ever owned the paper."--pierce's notes, _am. hist. rev._, iii., 324. friday june 1^{st} 1787 william houston from georgia took his seat. the committee of the whole proceeded to resolution 7. "that a national executive be instituted, to be chosen by the national legislature for the term of ---years &c. to be ineligible thereafter, to possess the executive powers of congress &c." m^r pinkney was for a vigorous executive but was afraid the executive powers of the existing congress might extend to peace & war &c. which would render the executive a monarchy, of the worst kind, to wit an elective one. m^r wilson moved that the executive consist of a single person. m^r c. pinkney seconded the motion, so as to read "that a national ex. to consist of a single person, be instituted." a considerable pause ensuing and the chairman asking if he should put the question, doc^r franklin[51] observed that it was a point of great importance and wished that the gentlemen would deliver their sentiments on it before the question was put. [51] "d^r franklin is well known to be the greatest phylosopher of the present age;--all the operations of nature he seems to understand,--the very heavens obey him, and the clouds yield up their lightning to be imprisoned in his rod. but what claim he has to the politician, posterity must determine. it is certain that he does not shine much in public council,--he is no speaker, nor does he seem to let politics engage his attention. he is, however, a most extraordinary man, and he tells a story in a style more engaging than anything i ever heard. let his biographer finish his character. he is 82 years old, and possesses an activity of mind equal to a youth of 25 years of age."--pierce's notes, _amer. hist. rev._, iii., 328. m^r rutlidge animadverted on the shyness of gentlemen on this and other subjects. he said it looked as if they supposed themselves precluded by having frankly disclosed their opinions from afterwards changing them, which he did not take to be at all the case. he said he was for vesting the executive power in a single person, tho' he was not for giving him the power of war and peace. a single man would feel the greatest responsibility and administer the public affairs best. m^r sherman said he considered the executive magistracy as nothing more than an institution for carrying the will of the legislature into effect, that the person or persons ought to be appointed by and accountable to the legislature only, which was the depository of the supreme will of the society. as they were the best judges of the business which ought to be done by the executive department, and consequently of the number necessary from time to time for doing it, he wished the number might not be fixed, but that the legislature should be at liberty to appoint one or more as experience might dictate. m^r wilson preferred a single magistrate, as giving most energy dispatch and responsibility to the office. he did not consider the prerogatives of the british monarch as a proper guide in defining the executive powers. some of these prerogatives were of a legislative nature. among others that of war & peace &c. the only powers he considered strictly executive were those of executing the laws, and appointing officers, not appertaining to and appointed by the legislature.[52] [52] according to king, madison followed wilson: "madison agreed with wilson in the definition of executive power. _ex vi termini._ executive power does not include the power of war and peace. executive power shd. be limited and defined. if large, we shall have the evils of elective monarchies. perhaps the best plan will be a single executive of long duration, with a council and with liberty to dissent on his personal responsibility."--king's _life and correspondence of rufus king_, i., 588. according to pierce: "m^r madison was of opinion that an executive formed of one man would answer the purpose when aided by a council, who should have the right to advise and record their proceedings, but not to control his authority."--pierce's notes, _am. hist. rev._, iii., 320. m^r gerry favored the policy of annexing a council to the executive in order to give weight & inspire confidence.[53] [53] king gives gerry's remarks: "_gerry._ i am in favor of a council to advise the executive: they will be organs of information respecting persons qualified for various offices. their opinions may be recorded, so as to be liable to be called to account & impeached--in this way, their responsibility will be certain, and for misconduct their punishment sure." dickinson followed gerry: "_dickinson._ a limited yet vigorous executive is not republican, but peculiar to monarchy--the royal executive has vigour, not only by power, but by popular attachment & report--an equivalent to popular attachment may be derived from the veto on the legislative acts. we cannot have a limited monarchy--our condition does not permit it. republics are in the beginning and for a time industrious, but they finally destroy themselves because they are badly constituted. i dread the consolidation of the states, & hope for a good national govt. from the present division of the states with a feeble executive. "we are to have a legislature of two branches, or two legislatures, as the sovereign of the nation--this will work a change unless you provide that the judiciary shall aid and correct the executive. the first branch of the legislature, the h. of representatives, must be on another plan. the second branch or senate may be on the present scheme of representing _the states_--the representatives to be apportioned according to the quotas of the states paid into the general treasury. the executive to be removed from office by the national legislature, on the petition of seven states."--king's _life and correspondence of rufus king_, i., 588 _et seq._ m^r randolph strenuously opposed a unity in the executive magistracy. he regarded it as the foetus of monarchy. we had he said no motive to be governed by the british govenm^t as our prototype. he did not mean however to throw censure on that excellent fabric. if we were in a situation to copy it he did not know that he should be opposed to it; but the fixt genius of the people of america required a different form of government. he could not see why the great requisites for the executive department, vigor, dispatch & responsibility could not be found in three men, as well as in one man. the executive ought to be independent. it ought therefore in order to support its independence to consist of more than one. m^r wilson said that unity in the executive instead of being the fetus of monarchy would be the best safeguard against tyranny. he repeated that he was not governed by the british model which was inapplicable to the situation of this country; the extent of which was so great, and the manners so republican, that nothing but a great confederated republic would do for it. m^r wilson's motion for a single magistrate was postponed by common consent, the committee seeming unprepared for any decision on it; and the first part of the clause agreed to, viz--"that a national executive be instituted."[54] [54] williamson followed wilson, according to king: "_williamson_--there is no true difference between an executive composed of a single person, with a council, and an executive composed of three or more persons."--king's _life and correspondence of rufus king_, i., 590. m^r madison thought it would be proper, before a choice sh^d be made between a unity and a plurality in the executive, to fix the extent of the executive authority; that as certain powers were in their nature executive, and must be given to that departm^t whether administered by one or more persons, a definition of their extent would assist the judgment in determining how far they might be safely entrusted to a single officer. he accordingly moved that so much of the clause before the committee as related to the powers of the executive sh^d be struck out & that after the words "that a national executive ought to be instituted" there be inserted the words following viz. "with power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers "not legislative nor judiciary in their nature," as may from time to time be delegated by the national legislature." the words "not legislative nor judiciary in their nature" were added to the proposed amendment, in consequence of a suggestion by gen^l pinkney that improper powers might otherwise be delegated. m^r wilson seconded this motion. m^r pinkney moved to amend the amendment by striking out the last member of it; viz: "and to execute such other powers not legislative nor judiciary in their nature as may from time to time be delegated." he said they were unnecessary, the object of them being included in the "power to carry into effect the national laws." m^r randolph seconded the motion. m^r madison did not know that the words were absolutely necessary, or even the preceding words, "to appoint to offices &c. the whole being perhaps included in the first member of the proposition. he did not however see any inconveniency in retaining them, and cases might happen in which they might serve to prevent doubts and misconstructions. in consequence of the motion of m^r pinkney, the question on m^r madison's motion was divided; and the words objected to by m^r pinkney struck out; by the votes of connecticut, n. y., n. j., pen^a, del., n. c., & geo. ag^{st} mass., virg^a & s. carolina the preceding part of the motion being first agreed to; connecticut divided all the other states in the affirmative. the next clause in resolution 7, relating to the mode of appointing, & the duration of, the executive being under consideration, m^r wilson said he was almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical. he would say however at least that in theory he was for an election by the people. experience, particularly in n. york & mass^{ts}, shewed that an election of the first magistrate by the people at large, was both a convenient & successful mode. the objects of choice in such cases must be persons whose merits have general notoriety. m^r sherman was for the appointment by the legislature, and for making him absolutely dependent on that body, as it was the will of that which was to be executed. an independence of the executive on the supreme legislature, was in his opinion the very essence of tyranny if there was any such thing. m^r wilson moves that the blank for the term of duration should be filled with three years, observing at the same time that he preferred this short period, on the supposition that a re-eligibility would be provided for. m^r pinkney moves for seven years. m^r sherman was for three years, and ag^{st} the doctrine of rotation as throwing out of office the men best qualified to execute its duties. m^r mason was for seven years at least, and for prohibiting a re-eligibility as the best expedient both for preventing the effect of a false complaisance on the side of the legislature towards unfit characters; and a temptation on the side of the executive to intrigue with the legislature for a re-appointment. m^r bedford[55] was strongly opposed to so long a term as seven years. he begged the committee to consider what the situation of the country would be, in case the first magistrate should be saddled on it for such a period and it should be found on trial that he did not possess the qualifications ascribed to him, or should lose them after his appointment. an impeachment he said would be no cure for this evil, as an impeachment would reach misfeasance only, not incapacity. he was for a triennial election, and for an ineligibility after a period of nine years. [55] "mr. bedford was educated for the bar, and in his profession i am told, has merit. he is a bold and nervous speaker, and has a very commanding and striking manner;--but he is warm and impetuous in his temper, and precipitate in his judgment. mr. bedford is about 32 years old, and very corpulent."--pierce's notes, _am. hist. rev._, iii., 330. on the question for seven years, mass^{ts} divid^{d.} con^t no. n. y. ay. n. j. ay. pen^a ay. del. ay. virg^a ay. n. c. no. s. c. no. geor. no. there being 5 ays, 4 noes, & 1 div^d, a question was asked whether a majority had voted in the affirmative? the president decided that it was an affirmative vote. the _mode of appointing_ the executive was the next question. m^r wilson renewed his declarations in favor of an appointment by the people. he wished to derive not only both branches of the legislature from the people, without the intervention of the state legislatures but the executive also; in order to make them as independent as possible of each other, as well as of the states; col. mason favors the idea, but thinks it impracticable. he wishes however that m^r wilson might have time to digest it into his own form.--the clause, "to be chosen by the national legislature"--was accordingly postponed.-m^r rutlidge suggests an election of the executive by the second branch only of the national legislature. the committee then rose and the house adjourned. saturday june 2^d in committee of whole william sam^l johnson from connecticut, daniel of st. thomas jenifer, from mary^d, & john lansing j^r from n. york, took their seats. it was mov^d & 2^{ded} to postpone ye resol: of m^r randolph respecting the executive, in order to take up the 2^d branch of the legislature; which being negatived by mas: con: del: virg: n. c. s. c. geo: ag^{st} n. y. pen^a mary^d. the mode of appointing the executive was resumed. m^r wilson made the following motion, to be substituted for the mode proposed by mr. randolph's resolution, "that the executive magistracy shall be elected in the following manner: that the states be divided into ---districts: & that the persons qualified to vote in each district for members of the first branch of the national legislature elect ---members for their respective districts to be electors of the executive magistracy, that the said electors of the executive magistracy meet at ---and they or any ---of them so met shall proceed to elect by ballot, but not out of their own body ---person-in whom the executive authority of the national government shall be vested." m^r wilson repeated his arguments in favor of an election without the intervention of the states. he supposed too that this mode would produce more confidence among the people in the first magistrate, than an election by the national legislature. m^r gerry, opposed the election by the national legislature. there would be a constant intrigue kept up for the appointment. the legislature & the candidates w^d bargain & play into one another's hands, votes would be given by the former under promises or expectations from the latter, of recompensing them by services to members of the legislature or to their friends. he liked the principle of m^r wilson's motion, but fears it would alarm & give a handle to the state partizans, as tending to supersede altogether the state authorities. he thought the community not yet ripe for stripping the states of their powers, even such as might not be requisite for local purposes. he was for waiting till the people should feel more the necessity of it. he seemed to prefer the taking the suffrages of the states, instead of electors, or letting the legislatures nominate, and the electors appoint. he was not clear that the people ought to act directly even in the choice of electors, being too little informed of personal characters in large districts, and liable to deceptions. m^r williamson[56] could see no advantage in the introduction of electors chosen by the people who would stand in the same relation to them as the state legislatures, whilst the expedient would be attended with great trouble and expence. [56] "mr. williamson is a gentleman of education and talents. he enters freely into public debate from his close attention to most subjects, but he is no orator. there is a great degree of good humour and pleasantry in his character; and in his manners there is a strong trait of the gentleman. he is about 48 years of age."--pierce's notes, _amer. hist. rev._, iii., 332. on the question for agreeing to m^r wilson's substitute, it was negatived: mass^{ts} no. con^t no. n. y.[57] no. p^a ay. del. no. mar^d ay. virg^a no. n. c. no. s. c. no. geo^a no. [57] new york, in the printed journal, divided.--madison's note. on the question for electing the executive by the national legislature for the term of seven years, it was agreed to, mass^{ts} ay. con^t ay. n. y. ay. pen^a no. del. ay. mary^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. doc^r franklin moved that what related to the compensation for the services of the executive be postponed, in order to substitute--"whose necessary expences shall be defrayed, but who shall receive no salary, stipend fee or reward whatsoever for their services." he said that being very sensible of the effect of age on his memory, he had been unwilling to trust to that for the observations which seemed to support his motion and had reduced them to writing, that he might with the permission of the committee read instead of speaking them. m^r wilson made an offer to read the paper, which was accepted. the following is a literal copy of the paper: sir, it is with reluctance that i rise to express a disapprobation of any one article of the plan for which we are so much obliged to the honorable gentleman who laid it before us. from its first reading i have borne a good will to it, and in general wished it success. in this particular of salaries to the executive branch i happen to differ; and as my opinion may appear new and chimerical, it is only from a persuasion that it is right, and from a sense of duty that i hazard it. the committee will judge of my reasons when they have heard them, and their judgment may possibly change mine.--i think i see inconveniences in the appointment of salaries; i see none in refusing them, but on the contrary, great advantages. sir, there are two passions which have a powerful influence on the affairs of men. these are ambition and avarice; the love of power, and the love of money. separately each of these has great force in prompting men to action; but when united in view of the same object, they have in many minds the most violent effects. place before the eyes of such men, a post of _honour_ that shall be at the same time a place of _profit_, and they will move heaven and earth to obtain it. the vast number of such places it is that renders the british government so tempestuous. the struggles for them are the true sources of all those factions which are perpetually dividing the nation, distracting its councils, hurrying sometimes into fruitless & mischievous wars, and often compelling a submission to dishonorable terms of peace. and of what kind are the men that will strive for this profitable pre-eminence, through all the bustle of cabal, the heat of contention, the infinite mutual abuse of parties, tearing to pieces the best of characters? it will not be the wise and moderate, the lovers of peace and good order, the men fittest for the trust. it will be the bold and the violent, the men of strong passions and indefatigable activity in their selfish pursuits. these will thrust themselves into your government and be your rulers.--and these too will be mistaken in the expected happiness of their situation: for their vanquished competitors of the same spirit, and from the same motives will perpetually be endeavouring to distress their administration, thwart their measures, and render them odious to the people. besides these evils, sir, tho' we may set out in the beginning with moderate salaries, we shall find that such will not be of long continuance. reasons will never be wanting for proposed augmentations. and there will always be a party for giving more to the rulers, that the rulers may be able in return to give more to them. hence as all history informs us, there has been in every state & kingdom a constant kind of warfare between the governing & governed; the one striving to obtain more for its support, and the other to pay less. and this has alone occasioned great convulsions, actual civil wars, ending either in dethroning of the princes, or enslaving of the people. generally indeed the ruling power carries its point, the revenues of princes constantly increasing, and we see that they are never satisfied, but always in want of more. the more the people are discontented with the oppression of taxes; the greater need the prince has of money to distribute among his partizans and pay the troops that are to suppress all resistance, and enable him to plunder at pleasure. there is scarce a king in an hundred who would not, if he could, follow the example of pharoah, get first all the people's money, then all their lands, and then make them and their children servants for ever. it will be said, that we don't propose to establish kings. i know it. but there is a natural inclination in mankind to kingly government. it sometimes relieves them from aristocratic domination. they had rather have one tyrant than five hundred. it gives more of the appearance of equality among citizens, and that they like. i am apprehensive therefore, perhaps too apprehensive, that the government of these states, may in future times, end in a monarchy. but this catastrophe i think may be long delayed, if in our proposed system we do not sow the seeds of contention, faction & tumult, by making our posts of honor, places of profit. if we do, i fear that tho' we do employ at first a number, and not a single person, the number will in time be set aside, it will only nourish the foetus of a king, as the honorable gentleman from virginia very aptly expressed it, and a king will the sooner be set over us. it may be imagined by some that this is an utopian idea, and that we can never find men to serve us in the executive department, without paying them well for their services. i conceive this to be a mistake. some existing facts present themselves to me, which incline me to a contrary opinion. the high sheriff of a county in england is an honorable office, but it is not a profitable one. it is rather expensive and therefore not sought for. but yet, it is executed and well executed, and usually by some of the principal gentlemen of the county. in france, the office of counsellor, or member of their judiciary parliaments is more honorable. it is therefore purchased at a high price: there are indeed fees on the law proceedings, which are divided among them, but these fees do not amount to more than three per cent on the sum paid for the place. therefore as legal interest is there at five perc^t they in fact pay two perc^t for being allowed to do the judiciary business of the nation, which is at the same time entirely exempt from the burden of paying them any salaries for their services. i do not however mean to recommend this as an eligible mode for our judiciary department. i only bring the instance to shew that the pleasure of doing good & serving their country and the respect such conduct entitles them to, are sufficient motives with some minds to give up a great portion of their time to the public, without the mean inducement of pecuniary satisfaction. another instance is that of a respectable society who have made the experiment, and practised it with success more than one hundred years. i mean the quakers. it is an established rule with them, that they are not to go to law; but in their controversies they must apply to their monthly, quarterly and yearly meetings. committees of these sit with patience to hear the parties, and spend much time in composing their differences. in doing this, they are supported by a sense of duty, and the respect paid to usefulness. it is honorable to be so employed, but it is never made profitable by salaries, fees or perquisites. and indeed in all cases of public service the less the profit the greater the honor. to bring the matter nearer home, have we not seen, the great and most important of our offices, that of general of our armies executed for eight years together without the smallest salary, by a patriot whom i will not now offend by any other praise; and this through fatigues and distresses in common with the other brave men his military friends & companions, and the constant anxieties peculiar to his station? and shall we doubt finding three or four men in all the u. states, with public spirit enough to bear sitting in peaceful council for perhaps an equal term, merely to preside over our civil concerns, and see that our laws are duly executed. sir, i have a better opinion of our country. i think we shall never be without a sufficient number of wise and good men to undertake and execute well and faithfully the office in question. sir. the saving of the salaries that may at first be proposed is not an object with me. the subsequent mischiefs of proposing them are what i apprehend. and therefore it is, that i move the amendment. if it is not seconded or accepted i must be contented with the satisfaction of having delivered my opinion frankly and done my duty. the motion was seconded by col. hamilton, with the view he said merely of bringing so respectable a proposition before the committee, and which was besides enforced by arguments that had a certain degree of weight. no debate ensued, and the proposition was postponed for the consideration of the members. it was treated with great respect, but rather for the author of it, than from any apparent conviction of its expediency or practicability. m^r dickinson moved,[58] "that the executive be made removable by the national legislature on the request of a majority of the legislatures of individual states." it was necessary he said to place the power of removing somewhere. he did not like the plan of impeaching the great officers of state. he did not know how provision could be made for removal of them in a better mode than that which he had proposed. he had no idea of abolishing the state governments as some gentlemen seemed inclined to do. the happiness of this country in his opinion required considerable powers to be left in the hands of the states. [58] "mr. dickinson has been famed through all america for his farmers letters; he is a scholar, and said to be a man of very extensive information. when i saw him in the convention i was induced to pay the greatest attention to him whenever he spoke. i had often heard that he was a great orator, but i found him an indifferent speaker. with an affected air of wisdom he labors to produce a trifle,--his language is irregular and incorrect,--his flourishes, (for he sometimes attempts them,) are like expiring flames, they just shew themselves and go out;--no traces of them are left on the mind to chear or animate it. he is, however, a good writer and will be ever considered one of the most important characters in the united states. he is about 55 years old, and was bred a quaker."--pierce's notes, _am. hist. rev._, iii., 329. m^r bedford seconded the motion. m^r sherman contended that the national legislature should have power to remove the executive at pleasure. m^r mason. some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen. he opposed decidedly the making the executive the mere creature of the legislature as a violation of the fundamental principle of good government. m^r madison & m^r wilson observed that it would leave an equality of agency in the small with the great states; that it would enable a minority of the people to prevent y^e removal of an officer who had rendered himself justly criminal in the eyes of a majority; that it would open a door for intrigues ag^{st} him in states where his administration tho' just might be unpopular, and might tempt him to pay court to particular states whose leading partizans he might fear, or wish to engage as his partizans. they both thought it bad policy to introduce such a mixture of the state authorities, where their agency could be otherwise supplied. m^r dickinson considered the business as so important that no man ought to be silent or reserved. he went into a discourse of some length, the sum of which was, that the legislative, executive, & judiciary departments ought to be made as independ^t as possible; but that such an executive as some seemed to have in contemplation was not consistent with a republic: that a firm executive could only exist in a limited monarchy. in the british gov^t itself the weight of the executive arises from the attachments which the crown draws to itself, & not merely from the force of its prerogatives. in place of these attachments we must look out for something else. one source of stability is the double branch of the legislature. the division of the country into distinct states formed the other principal source of stability. this division ought therefore to be maintained, and considerable powers to be left with the states. this was the ground of his consolation for the future fate of his country. without this, and in case of a consolidation of the states into one great republic, we might read its fate in the history of smaller ones. a limited monarchy he considered as _one_ of the best governments in the world. it was not _certain_ that the same blessings were derivable from any other form. it was certain that equal blessings had never yet been derived from any of the republican form. a limited monarchy however was out of the question. the spirit of the times--the state of our affairs forbade the experiment, if it were desireable. was it possible moreover in the nature of things to introduce it even if these obstacles were less insuperable. a house of nobles was essential to such a gov^t could these be created by a breath, or by a stroke of the pen? no. they were the growth of ages, and could only arise under a complication of circumstances none of which existed in this country. but though a form the most perfect _perhaps_ in itself be unattainable, we must not despair. if antient republics have been found to flourish for a moment only & then vanish for ever, it only proves that they were badly constituted; and that we ought to seek for every remedy for their diseases. one of these remedies he conceived to be the accidental lucky division of this country into distinct states; a division which some seemed desirous to abolish altogether. as to the point of representation in the national legislature as it might affect states of different sizes, he said it must probably end in mutual concession. he hoped that each state would retain an equal voice at least in one branch of the national legislature, and supposed the sums paid within each state would form a better ratio for the other branch than either the number of inhabitants or the quantum of property.[59] [59] according to pierce: "m^r madison said it was far from being his wish that every executive officer should remain in office, without being amenable to some body for his conduct."--pierce's notes, _am. hist. rev._, iii., 321. a motion being made to strike out, "on request by a majority of the legislatures of the individual states," and rejected, connecticut, s. carol: & geo. being ay, the rest no: the question on m^r dickinson's motion for making executive removable by nat^l legislature at request of majority of state legislatures was also rejected all the states being in the negative except delaware which gave an affirmative vote. the question for making y^e executive ineligible after seven years, was next taken and agreed to: mass^{ts} ay. con^t no. n. y. ay. p^a div^d. del. ay. mary^d ay. v^a ay. n. c. ay. s. c. ay. geo. no.[60] [60] in printed journal geo. ay.--madison's note. m^r williamson 2^{ded} by m^r davie[61] moved to add to the last clause, the words--"and to be removable on impeachment & conviction of mal-practice or neglect of duty"--which was agreed to. [61] "mr. davey is a lawyer of some eminence in his state. he is said to have a good classical education, and is a gentleman of considerable literary talents. he was silent in the convention, but his opinion was always respected. mr. davy is about 30 years of age."--pierce's notes, _am. hist. rev._, iii., 332. m^r rutlidge & m^r c. pinkney moved that the blank for the n^o of persons in the executive be filled with the words "one person." he supposed the reasons to be so obvious & conclusive in favor of one that no member would oppose the motion. m^r randolph opposed it with great earnestness, declaring that he should not do justice to the country which sent him if he were silently to suffer the establishm^t of a unity in the executive department. he felt an opposition to it which he believed he should continue to feel as long as he lived. he urged 1. that the permanent temper of the people was adverse to the very semblance of monarchy. 2. that a unity was unnecessary a plurality being equally competent to all the objects of the department. 3. that the necessary confidence would never be reposed in a single magistrate. 4. that the appointments would generally be in favor of some inhabitant near the center of the community, and consequently the remote parts would not be on an equal footing. he was in favor of three members of the executive to be drawn from different portions of the country. m^r butler contended strongly for a single magistrate as most likely to answer the purpose of the remote parts. if one man should be appointed he would be responsible to the whole, and would be impartial to its interests. if three or more should be taken from as many districts, there would be a constant struggle for local advantages. in military matters this would be particularly mischievous. he said his opinion on this point had been formed under the opportunity he had had of seeing the manner in which a plurality of military heads distracted holland when threatened with invasion by the imperial troops. one man was for directing the force to the defence of this part, another to that part of the country, just as he happened to be swayed by prejudice or interest. the motion was then postp^d, the committee rose & the house adj^d. monday june 4. in committee of the whole the question was resumed on motion of m^r pinkney, 2^{ded} by m^r wilson, "shall the blank for the number of the executive be filled with a single person?" m^r wilson was in favor of the motion. it had been opposed by the gentleman from virg^a (mr. randolph) but the arguments used had not convinced him. he observed that the objections of m^r r. were levelled not so much ag^st the measure itself, as ag^{st} its unpopularity. if he could suppose that it would occasion a rejection of the plan of which it should form a part, though the part were an important one, yet he would give it up rather than lose the whole. on examination he could see no evidence of the alledged antipathy of the people. on the contrary he was persuaded that it does not exist. all know that a single magistrate is not a king. one fact has great weight with him. all the 13 states tho agreeing in scarce any other instance, agree in placing a single magistrate at the head of the govern^t. the idea of three heads has taken place in none. the degree of power is indeed different; but there are no co-ordinate heads. in addition to his former reasons for preferring a unity, he would mention another. the _tranquillity_ not less than the vigor of the gov^t he thought would be favored by it. among three equal members, he foresaw nothing but uncontrouled, continued, & violent animosities; which would not only interrupt the public administration; but diffuse their poison thro' the other branches of gov^t, thro' the states, and at length thro' the people at large. if the members were to be unequal in power the principle of opposition to the unity was given up. if equal, the making them an odd number would not be a remedy. in courts of justice there are two sides only to a question. in the legislative & executive departm^{ts} questions have commonly many sides. each member therefore might espouse a separate one & no two agree.[62] [62] according to pierce, king followed wilson: "mr. king was of opinion that the judicial ought not to join in the negative of a law, because the judges will have the expounding of those laws when they come before them; and they will no doubt stop the operation of such as shall appear repugnant to the constitution."--pierce's notes, _am. hist. rev._, iii., 322. m^r sherman. this matter is of great importance and ought to be well considered before it is determined. m^r wilson he said had observed that in each state a single magistrate was placed at the head of the gov^t. it was so he admitted, and properly so, and he wished the same policy to prevail in the federal gov^t. but then it should be also remarked that in all the states there was a council of advice, without which the first magistrate could not act. a council he thought necessary to make the establishment acceptable to the people. even in g. b. the king has a council; and though he appoints it himself, its advice has its weight with him, and attracts the confidence of the people. m^r williamson asks m^r wilson whether he means to annex a council. m^r wilson means to have no council, which oftener serves to cover, than prevent malpractices. m^r gerry was at a loss to discover the policy of three members for the executive. it w^d be extremely inconvenient in many instances, particularly in military matters, whether relating to the militia, an army, or a navy. it would be a general with three heads. on the question for a single executive it was agreed to mass^{ts} ay. con^t ay. n. y. no. pen^a ay. del. no. mary^d no. virg^a ay. (m^r r. & m^r blair no--doc^r mcc^g m^r m. & gen. w. ay. col. mason being no, but not in the house, m^r wythe ay. but gone home). n. c. ay. s. c. ay. georg^a ay. first clause of proposition 8^{th} relating _to a council of revision_ taken into consideration. m^r gerry doubts whether the judiciary ought to form a part of it, as they will have a sufficient check ag^{st} encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality. in some states the judges had actually set aside laws as being ag^{st} the constitution. this was done too with general approbation. it was quite foreign from the nature of y^e office to make them judges of the policy of public measures. he moves to postpone the clause in order to propose "that the national executive shall have a right to negative any legislative act which shall not be afterwards passed by ---parts of each branch of the national legislature." m^r king seconds the motion, observing that the judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation. m^r wilson thinks neither the original proposition nor the amendment goes far enough. if the legislative exetv & judiciary ought to be distinct & independent, the executive ought to have an absolute negative. without such a self-defence the legislature can at any moment sink it into non-existence. he was for varying the proposition in such a manner as to give the executive & judiciary jointly an absolute negative. on the question to postpone in order to take m^r gerry's proposition into consideration it was agreed to, mass^s ay. con^t no. n. y. ay. p^a ay. del. no. mary^d no. virg^a no. n. c ay. s. c. ay. g^a ay. mr. gerry's proposition being now before committee, m^r wilson & m^r hamilton move that the last part of it (viz. "w^{ch} s^l not be afterw^{ds} passed "unless by ---parts of each branch of the national legislature") be struck out, so as to give the executive an absolute negative on the laws. there was no danger they thought of such a power being too much exercised. it was mentioned by col: hamilton that the king of g. b. had not exerted his negative since the revolution. m^r gerry sees no necessity for so great a controul over the legislature as the best men in the community would be comprised in the two branches of it. doc^r franklin, said he was sorry to differ from his colleague for whom he had a very great respect, on any occasion, but he could not help it on this. he had had some experience of this check in the executive on the legislature, under the proprietary government of pen^a. the negative of the governor was constantly made use of to extort money. no good law whatever could be passed without a private bargain with him. an increase of his salary, or some donation, was always made a condition; till at last it became the regular practice, to have orders in his favor on the treasury, presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter. when the indians were scalping the western people, and notice of it arrived, the concurrence of the governor in the means of self-defence could not be got, till it was agreed that his estate should be exempted from taxation: so that the people were to fight for the security of his property, whilst he was to bear no share of the burden. this was a mischevous sort of check. if the executive was to have a council, such a power would be less objectionable. it was true, the king of g. b. had not, as was said, exerted his negative since the revolution; but that matter was easily explained. the bribes and emoluments now given to the members of parliament rendered it unnecessary, every thing being done according to the will of the ministers. he was afraid, if a negative should be given as proposed, that more power and money would be demanded, till at last eno' would be gotten to influence & bribe the legislature into a compleat subjection to the will of the executive. m^r sherman was ag^{st} enabling any one man to stop the will of the whole. no one man could be found so far above all the rest in wisdom. he thought we ought to avail ourselves of his wisdom in revising the laws, but not permit him to overrule the decided and cool opinions of the legislature. m^r madison supposed that if a proper proportion of each branch should be required to overrule the objections of the executive, it would answer the same purpose as an absolute negative. it would rarely if ever happen that the executive constituted as ours is proposed to be, would have firmness eno' to resist the legislature, unless backed by a certain part of the body itself. the king of g. b. with all his splendid attributes would not be able to withstand y^e unanimous and eager wishes of both houses of parliament. to give such a prerogative would certainly be obnoxious to the temper of this country; its present temper at least. m^r wilson believed as others did that this power would seldom be used. the legislature would know that such a power existed, and would refrain from such laws, as it would be sure to defeat. its silent operation would therefore preserve harmony and prevent mischief. the case of pen^a formerly was very different from its present case. the executive was not then as now to be appointed by the people. it will not in this case as in the one cited be supported by the head of a great empire, actuated by a different & sometimes opposite interest. the salary too is now proposed to be fixed by the constitution, or if d^r f.'s idea should be adopted all salary whatever interdicted. the requiring a large proportion of each house to overrule the executive check might do in peaceable times; but there might be tempestuous moments in which animosities may run high between the executive and legislative branches, and in which the former ought to be able to defend itself. m^r butler had been in favor of a single executive magistrate; but could he have entertained an idea that a compleat negative on the laws was to be given him he certainly should have acted very differently. it had been observed that in all countries the executive power is in a constant course of increase. this was certainly the case in g. b. gentlemen seemed to think that we had nothing to apprehend from an abuse of the executive power. but why might not a cataline or a cromwell arise in this country as well as in others. m^r bedford was opposed to every check on the legislature, even the council of revision first proposed. he thought it would be sufficient to mark out in the constitution the boundaries to the legislative authority, which would give all the requisite security to the rights of the other departments. the representatives of the people were the best judges of what was for their interest, and ought to be under no external controul whatever. the two branches would produce a sufficient controul within the legislature itself. col. mason observed that a vote had already passed he found [he was out at the time] for vesting the executive powers in a single person. among these powers was that of appointing to offices in certain cases. the probable abuses of a negative had been well explained by d^r f. as proved by experience, the best of all tests. will not the same door be opened here. the executive may refuse its assent to necessary measures till new appointments shall be referred to him; and having by degrees engrossed these into all his own hands, the american executive, like the british, will by bribery & influence, save himself the trouble & odium of exerting his negative afterwards. we are m^r chairman going very far in this business. we are not indeed constituting a british government, but a more dangerous monarchy, an elective one. we are introducing a new principle into our system, and not necessary as in the british gov^t where the executive has greater rights to defend. do gentlemen mean to pave the way to hereditary monarchy? do they flatter themselves that the people will ever consent to such an innovation? if they do i venture to tell them, they are mistaken. the people never will consent. and do gentlemen consider the danger of delay, and the still greater danger of a rejection, not for a moment but forever, of the plan which shall be proposed to them. notwithstanding the oppression & injustice experienced among us from democracy; the genius of the people is in favor of it, and the genius of the people must be consulted. he could not but consider the federal system as in effect dissolved by the appointment of this convention to devise a better one. and do gentlemen look forward to the dangerous interval between extinction of an old, and the establishment of a new governm^t and to the scenes of confusion which may ensue. he hoped that nothing like a monarchy would ever be attempted in this country. a hatred to its oppressions had carried the people through the late revolution. will it not be eno' to enable the executive to suspend offensive laws, till they shall be coolly revised, and the objections to them overruled by a greater majority than was required in the first instance. he never could agree to give up all the rights of the people to a single magistrate: if more than one had been fixed on, greater powers might have been entrusted to the executive. he hoped this attempt to give such powers would have its weight hereafter as an argument for increasing the number of the executive. doc^r franklin. a gentleman from s. c., (m^r butler) a day or two ago called our attention to the case of the u. netherlands. he wished the gentleman had been a little fuller, and had gone back to the original of that gov^t. the people being under great obligations to the prince of orange whose wisdom and bravery had saved them, chose him for the stadtholder. he did very well. inconveniences however were felt from his powers; which growing more & more oppressive, they were at length set aside. still however there was a party for the p. of orange, which descended to his son who excited insurrections, spilt a great deal of blood, murdered the de witts, and got the powers revested in the stadtholder. afterwards another prince had power to excite insurrections & make the stadtholdership hereditary. and the present stadth^{der} is ready to wade thro' a bloody civil war to the establishment of a monarchy. col. mason had mentioned the circumstance of appointing officers. he knew how that point would be managed. no new appointment would be suffered as heretofore in pens^a unless it be referred to the executive; so that all profitable offices will be at his disposal. the first man put at the helm will be a good one. no body knows what sort may come afterwards. the executive will be always increasing here, as elsewhere, till it ends in a monarchy. on the question for striking out so as to give executive an absolute negative,--mass^{ts} no. con^t no. n. y. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. georg^a no. m^r butler moved that the resol^n be altered so as to read--"resolved that the national executive have a power to suspend any legislative act for the term of ----." doct^r franklin seconds the motion. m^r gerry observed that a power of suspending might do all the mischief dreaded from the negative of useful laws; without answering the salutary purpose of checking unjust or unwise ones. on question "for giving this suspending power" all the states, to wit mass^{ts} con^t n. y. p^a del. mary^d virg^a n. c. s. c. georgia, were _no_. on a question for enabling _two thirds_ of each branch of the legislature to overrule the revisionary check, it passed in the affirmative sub silentio; and was inserted in the blank of m^r gerry's motion. on the question on m^r gerry's motion which gave the executive alone without the judiciary the revisionary controul on the laws unless overruled by 2/3 of each branch; mass^{ts} ay. con^t no. n. y. ay. p^a ay. del. ay. mary^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. it was moved by m^r wilson 2^{ded} by m^r madison--that the following amendment be made to the last resolution--after the words "national ex." to add "& a convenient number of the national judiciary."[63] [63] before the motion, according to king's notes: "_madison_--the judiciary ought to be introduced in the business of legislation--they will protect their department, and united with the executive make its negatives more strong. there is weight in the objections to this measure--but a check on the legislature is necessary, experience proves it to be so, and teaches us that what has been thought a calumny on a republican govt. is nevertheless true--in all countries are diversity of interests, the rich & the poor, the dr. & cr., the followers of different demagogues, the diversity of religious sects--the effects of these divisions in ancient govts. are well known, and the like causes will now produce like effects. we must therefore introduce in our system provisions against the measures of an interested majority--a check is not only necessary to protect the executive power, but the minority in the legislature. the independence of the executive, having the eyes of all upon him will make him an impartial judge--add the judiciary, and you greatly increase his respectability." after the motion: "dickinson opposed--you shd. separate the departments--you have given the executive a share in legislation; and it is asked why not give a share to the judicial power. because the judges are to interpret the laws, and therefore shd. have no share in making them--not so with the executive whose causing the laws to be executed is a ministerial office only. besides we have experienced in the br. constitution which confers the power of a negative on the executive."--king's _life and correspondence of rufus king_, i., 592. an objection of order being taken by m^r hamilton to the introduction of the last amendment at this time, notice was given by m^r w. & m^r m., that the same w^d be moved to-morrow,--whereupon wednesday (the day after) was assigned to reconsider the amendment of m^r gerry. it was then moved & 2^{ded} to proceed to the consideration of the 9^{th} resolution submitted by m^r randolph--when on motion to agree to the first clause namely "resolved, that a national judiciary be established," it passed in the affirmative nem. con. it was then moved & 2^{ded} to add these words to the first clause of the ninth resolution namely--"to consist of one supreme tribunal, and of one or more inferior tribunals," which passed in the affirmative. the comm^e then rose and the house adjourned. tuesday june 5. in committee of the whole governor livingston from new jersey, took his seat. the words, "one or more" were struck out before "inferior tribunals" as an amendment to the last clause of resol^n 9^{th}. the clause--"that the national judiciary be chosen by the national legislature," being under consideration. m^r wilson opposed the appointm^t of judges by the national legisl: experience shewed the impropriety of such appointm^{ts} by numerous bodies. intrigue, partiality, and concealment were the necessary consequences. a principal reason for unity in the executive was that officers might be appointed by a single, responsible person. m^r rutlidge was by no means disposed to grant so great a power to any single person. the people will think we are leaning too much towards monarchy. he was against establishing any national tribunal except a single supreme one. the state tribunals are most proper to decide in all cases in the first instance. doc^r franklin observed that two modes of chusing the judges had been mentioned, to wit, by the legislature and by the executive. he wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. he would mention one which he had understood was practised in scotland. he then in a brief and entertaining manner related a scotch mode, in which the nomination proceeded from the lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves. it was here he said the interest of the electors to make the best choice, which should always be made the case if possible. mr. madison disliked the election of the judges by the legislature or any numerous body. besides the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications. the legislative talents which were very different from those of a judge, commonly recommended men to the favor of legislative assemblies. it was known too that the accidental circumstances of presence and absence, of being a member or not a member, had a very undue influence on the appointment. on the other hand he was not satisfied with referring the appointment to the executive, he rather inclined to give it to the senatorial branch, as numerous eno' to be confided in--as not so numerous as to be governed by the motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments. he hinted this only and moved that the _appointment by the legislature_ might be struck out, & a blank left to be hereafter filled on maturer reflection. m^r wilson second it. on the question for striking out, mass^{ts} ay. con^t no. n. y. ay. n. j. ay. pen^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. mr. wilson gave notice that he should at a future day move for a reconsideration of that clause which respects "inferior tribunals." m^r pinkney gave notice that when the clause respecting the appointment of the judiciary should again come before the committee he should move to restore the "appointment by the national legislature." the following clauses of resol: 9. were agreed to viz "to hold their offices during good behaviour, and to receive punctually at stated times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution." the remaining clause of resolution 9. was postponed. resolution 10 was agreed to,--viz--that provision ought to be made for the admission of states lawfully arising within the limits of the u. states, whether from a voluntary junction of government & territory, or otherwise with the consent of a number of voices in the national legislature less than the whole. the 11. propos: "_for guaranteeing to states republican gov^t & territory_" &c. being read m^r patterson[64] wished the point of representation could be decided before this clause should be considered, and moved to postpone it, which was not opposed, and agreed to,--connecticut & s. carolina only voting ag^{st} it. [64] "m^r patterson is one of those kind of men whose powers break in upon you, and create wonder and astonishment. he is a man of great modesty, with looks that bespeak talents of no great extent,--but he is a classic, a lawyer, and an orator;--and of a disposition so favorable to his advancement that every one seemed ready to exalt him with their praises. he is very happy in the choice of time and manner of engaging in a debate, and never speaks but when he understands his subject well. this gentleman is about 43 y. of age, of a very low stature."--pierce's notes, _amer. hist. rev._, iii., 328. propos. 12 "_for continuing cong^s till a given day and for fulfilling their engagements_," produced no debate. on the question, mass. ay. con^t no. n. y. ay. n. j.[65] ay. pa. ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. g. ay. [65] note in madison's writing: new jersey omitted in printed journal. propos: 13. "that _provision ought to be made for hereafter amending the system now to be established, without requiring the assent of the nat^l legislature_", being taken up, m^r pinkney doubted the propriety or necessity of it. m^r gerry favored it. the novelty & difficulty of the experiment requires periodical revision. the prospect of such a revision would also give intermediate stability to the gov^t. nothing had yet happened in the states where this provision existed to prove its impropriety.--the proposition was postponed for further consideration: the votes being, mas: con. n. y. p^a del. ma. n. c. ay. virg^a s. c. geo. no. propos. 14. "_requiring oath from the state officers to support national gov^t_" was postponed after a short uninteresting conversation: the votes. con. n. jersey m^d virg. s. c. geo. ay. n. y. p^a del. n. c. no. massachusetts divided. propos. 15. for "_recommending conventions under appointment of the people to ratify the new constitution_" &c. being taken up, m^r sherman thought such a popular ratification unnecessary: the articles of confederation providing for changes and alterations with the assent of cong^s and ratification of state legislatures. m^r madison thought this provision essential. the articles of confed^n themselves were defective in this respect, resting in many of the states on the legislative sanction only. hence in conflicts between acts of the states, and of cong^s especially where the former are of posterior date, and the decision is to be made by state tribunals, an uncertainty must necessarily prevail, or rather perhaps a certain decision in favor of the state authority. he suggested also that as far as the articles of union were to be considered as a treaty only of a particular sort, among the governments of independent states, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation. for these reasons as well as others he thought it indispensable that the new constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves. m^r gerry observed that in the eastern states the confed^n had been sanctioned by the people themselves. he seemed afraid of referring the new system to them. the people in that quarter have at this time the wildest ideas of government in the world. they were for abolishing the senate in mass^{ts} and giving all the other powers of gov^t to the other branch of the legislature. m^r king supposed that the last article of y^e confed^n rendered the legislature competent to the ratification. the people of the southern states where the federal articles had been ratified by the legislatures only, had since _impliedly_ given their sanction to it. he thought notwithstanding that there might be policy in varying the mode. a convention being a single house, the adoption may more easily be carried thro' it, than thro' the legislatures where there are several branches. the legislatures also being to lose power, will be most likely to raise objections. the people having already parted with the necessary powers it is immaterial to them, by which government they are possessed, provided they be well employed. m^r wilson took this occasion to lead the committee by a train of observations to the idea of not suffering a disposition in the plurality of states to confederate anew on better principles, to be defeated by the inconsiderate or selfish opposition of a few states. he hoped the provision for ratifying would be put on such a footing as to admit of such a partial union, with a door open for the accession of the rest.[66] [66] (this hint was probably meant in terrorem to the smaller states of n. jersey & delaware. nothing was said in reply to it.)--madison's note. m^r pinkney hoped that in case the experiment should not unanimously take place, nine states might be authorized to unite under the same governm^t. the propos. 15. was postponed nem. con^t. m^r pinkney & m^r rutlidge moved that to-morrow be assigned to reconsider that clause of propos: 4: which respects the election of the first branch of the national legislature--which passed in affirmative,--con.: n. y., p^a del. m^d, v^a, ay.--6 mas.: n. j.: n. c.: s. c.: geo.: no. 5. mr. rutlidge hav^g obtained a rule for reconsideration of the clause for establishing _inferior_ tribunals under the national authority, now moved that that part of the clause in the propos. 9. should be expunged: arguing that the state tribunals might and ought to be left in all cases to decide in the first instance the right of appeal to the supreme national tribunal being sufficient to secure the national rights & uniformity of judgm^{ts}: that it was making an unnecessary encroachment on the jurisdiction of the states and creating unnecessary obstacles to their adoption of the new system. mr. sherman 2^{ded} the motion. m^r madison observed that unless inferior tribunals were dispersed throughout the republic with _final_ jurisdiction in _many_ cases, appeals would be multiplied to a most oppressive degree; that besides, an appeal would not in many cases be a remedy. what was to be done after improper verdicts in state tribunals obtained under the biassed directions of a dependent judge, or the local prejudices of an undirected jury? to remand the cause for a new trial would answer no purpose. to order a new trial at the supreme bar would oblige the parties to bring up their witnesses, tho' ever so distant from the seat of the court. an effective judiciary establishment commensurate to the legislative authority, was essential. a government without a proper executive & judiciary would be the mere trunk of a body, without arms or legs to act or move. m^r wilson opposed the motion on like grounds. he said the admiralty jurisdiction ought to be given wholly to the national government, as it related to cases not within the jurisdiction of particular states, & to a scene in which controversies with foreigners would be most likely to happen. m^r sherman was in favor of the motion. he dwelt chiefly on the supposed expensiveness of having a new set of courts, when the existing state courts would answer the same purpose. m^r dickinson contended strongly that if there was to be a national legislature, there ought to be a national judiciary, and that the former ought to have authority to institute the latter. on the question for m^r rutlidge's motion to strike out "inferior tribunals" mass^{ts} divided. con^t ay. n. y. div^d. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. m^r wilson & m^r madison then moved, in pursuance of the idea expressed above by mr. dickinson, to add to the resol: 9. the words following "that the national legislature be empowered to institute inferior tribunals." they observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the legislature to establish or not establish them. they repeated the necessity of some such provision. m^r butler. the people will not bear such innovations. the states will revolt at such encroachments. supposing such an establishment to be useful, we must not venture on it. we must follow the example of solon who gave the athenians not the best gov^t he could devise, but the best they w^d receive. m^r king remarked as to the comparative expence, that the establishment of inferior tribunals w^d cost infinitely less than the appeals that would be prevented by them. on this question as moved by m^r w. & m^r m. mass. ay. c^t no. n. y. div^d. n. j.[67] ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. [67] in printed journals n. jersey, no.--madison's note. the committee then rose & the house adjourned to 11 oc tom^w. wednesday june 6^{th} in committee of the whole. m^r pinkney according to previous notice & rule obtained, moved "that the first branch of the national legislature be elected by the state legislatures, and not by the people;" contending that the people were less fit judges in such a case, and that the legislatures would be less likely to promote the adoption of the new government, if they were to be excluded from all share in it. m^r rutlidge 2^{ded} the motion. m^r gerry.[68] much depends on the mode of election. in england the people will probably lose their liberty from the smallness of the proportion having a right of suffrage. our danger arises from the opposite extreme: hence in mass^{ts} the worst men get into the legislature. several members of that body had lately been convicted of infamous crimes. men of indigence, ignorance & baseness, spare no pains, however dirty to carry their point ag^{st} men who are superior to the artifices practised. he was not disposed to run into extremes. he was as much principled as ever ag^{st} aristocracy and monarchy. it was necessary on the one hand that the people should appoint one branch of the gov^t in order to inspire them with the necessary confidence. but he wished the election on the other to be so modified as to secure more effectually a just preference of merit. his idea was that the people should nominate certain persons in certain districts, out of whom the state legislatures sh^d make the appointment. [68] "mr. gerry.--if the national legislature are appointed by the state legislatures, demagogues and corrupt members will creep in."--yates's _secret debates in forming the constitution_, 105. m^r wilson. he wished for vigor in the gov^t, but he wished that vigorous authority to flow immediately from the legitimate source of all authority. the gov^t ought to possess not only 1^{st} the _force_, but 2^{dly} the _mind or sense_ of the people at large. the legislature ought to be the most exact transcript of the whole society. representation is made necessary only because it is impossible for the people to act collectively. the opposition was to be expected he said from the _governments_, not from the citizens of the states. the latter had parted as was observed (by m^r king) with all the necessary powers; and it was immaterial to them, by whom they were exercised, if well exercised. the state officers were to be the losers of power. the people he supposed would be rather more attached to the national gov^t than to the state gov^{ts} as being more important in itself, and more flattering to their pride. there is no danger of improper elections if made by _large_ districts. bad elections proceed from the smallness of the districts which give an opportunity to bad men to intrigue themselves into office. m^r sherman. if it were in view to abolish the state gov^{ts} the elections ought to be by the people. if the state gov^{ts} are to be continued, it is necessary in order to preserve harmony between the national & state gov^{ts} that the elections to the former sh^d be made by the latter. the right of participating in the national gov^t would be sufficiently secured to the people by their election of the state legislatures. the objects of the union, he thought were few, 1. defence ag^{st} foreign danger, 2. ag^{st} internal disputes & a resort to force, 3. treaties with foreign nations 4. regulating foreign commerce, & drawing revenue from it. these & perhaps a few lesser objects alone rendered a confederation of the states necessary. all other matters civil & criminal would be much better in the hands of the states. the people are more happy in small than in large states. states may indeed be too small as rhode island, & thereby be too subject to faction. some others were perhaps too large, the powers of gov^t not being able to pervade them. he was for giving the general gov^t power to legislate and execute within a defined province. col. mason. under the existing confederacy, cong^s represent the _states_ and not the _people_ of the states: their acts operate on the _states_, not on the individuals. the case will be changed in the new plan of gov^t. the people will be represented; they ought therefore to choose the representatives. the requisites in actual representation are that the rep^s should sympathize with their constituents; sh^d think as they think, & feel as they feel; and that for these purposes sh^d even be residents among them. much he s^d had been alledged ag^{st} democratic elections. he admitted that much might be said; but it was to be considered that no gov^t was free from imperfections & evils; and that improper elections in many instances were inseparable from republican gov^{ts}. but compare these with the advantage of this form in favor of the rights of the people, in favor of human nature. he was persuaded there was a better chance for proper elections by the people, if divided into large districts, than by the state legislatures. paper money had been issued by the latter when the former were against it. was it to be supposed that the state legislatures then w^d not send to the nat^l legislature patrons of such projects, if the choice depended on them. m^r madison considered an election of one branch at least of the legislature by the people immediately, as a clear principle of free gov^t and that this mode under proper regulations had the additional advantage of securing better representatives, as well as of avoiding too great an agency of the state governments in the general one. he differed from the member from connecticut (mr. sherman) in thinking the objects mentioned to be all the principal ones that required a national gov^t. those were certainly important and necessary objects; but he combined with them the necessity of providing more effectually for the security of private rights, and the steady dispensation of justice. interferences with these were evils which had more perhaps than anything else, produced this convention. was it to be supposed that republican liberty could long exist under the abuses of it practised in some of the states. the gentleman (m^r sherman) had admitted that in a very small state, faction & oppression w^d prevail. it was to be inferred then that wherever these prevailed the state was too small. had they not prevailed in the largest as well as the smallest tho' less than in the smallest; and were we not thence admonished to enlarge the sphere as far as the nature of the gov^t would admit. this was the only defence ag^{st} the inconveniences of democracy consistent with the democratic form of gov^t. all civilized societies would be divided into different sects, factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader--the disciples of this religious sect or that religious sect. in all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. what motives are to restrain them? a prudent regard to the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as by individuals. respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. conscience, the only remaining tie is known to be inadequate in individuals: in large numbers, little is to be expected from it. besides, religion itself may become a motive to persecution & oppression. these observations are verified by the histories of every country antient & modern. in greece & rome the rich & poor, the creditors & debtors, as well as the patricians & plebeians alternately oppressed each other with equal unmercifulness. what a source of oppression was the relation between the parent cities of rome, athens & carthage, & their respective provinces; the former possessing the power, & the latter being sufficiently distinguished to be separate objects of it? why was america so justly apprehensive of parliamentary injustice? because g. britain had a separate interest real or supposed, & if her authority had been admitted, could have pursued that interest at our expence. we have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. what has been the source of those unjust laws complained of among ourselves? has it not been the real or supposed interest of the major number? debtors have defrauded their creditors. the landed interest has borne hard on the mercantile interest. the holders of one species of property have thrown a disproportion of taxes on the holders of another species. the lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. in a republican gov^t the majority if united have always an opportunity. the only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1^{st} place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2^d place that in case they sh^d have such an interest, they may not be apt to unite in the pursuit of it. it was incumbent on us then to try this remedy, and with that view to frame a republican system on such a scale & in such a form as will controul all the evils w^{ch} have been experienced. m^r dickinson considered it essential that one branch of the legislature sh^d be drawn immediately from the people; and as expedient that the other sh^d be chosen by the legislatures of the states. this combination of the state gov^{ts} with the national gov^t was as politic as it was unavoidable. in the formation of the senate we ought to carry it through such a refining process as will assimilate it as nearly as may be to the house of lords in england. he repeated his warm eulogiums on the british constitution. he was for a strong national gov^t but for leaving the states a considerable agency in the system. the objection ag^{st} making the former dependent on the latter might be obviated by giving to the senate an authority permanent & irrevocable for three, five or seven years. being thus independent they will check & decide with becoming freedom. m^r read. too much attachment is betrayed to the state govern^{ts}. we must look beyond their continuance. a national gov^t must soon of necessity swallow all of them up. they will soon be reduced to the mere office of electing the national senate. he was ag^{st} patching up the old federal system: he hoped the idea w^d be dismissed. it would be like putting new cloth on an old garment. the confederation was founded on temporary principles. it cannot last: it can not be amended. if we do not establish a good gov^t on new principles, we must either go to ruin, or have the work to do over again. the people at large are wrongly suspected of being averse to a gen^l gov^t. the aversion lies among interested men who possess their confidence. m^r pierce[69] was for an election by the people as to the 1^{st} branch & by the states as to the 2^d branch; by which means the citizens of the states w^d be represented both _individually_ & _collectively_. [69] "my own character i shall not attempt to draw, but leave those who may choose to speculate on it, to consider it in any light that their fancy or imagination may depict. i am conscious of having discharged my duty as a soldier through the course of the late revolution with honor and propriety; and my services in congress and the convention were bestowed with the best intention towards the interest of georgia, and towards the general welfare of the confederacy. i possess ambition, and it was that, and the flattering opinion which some of my friends had of me, that gave me a seat in the wisest council in the world, and furnished me with an opportunity of giving these short sketches of the characters who composed it."--pierce's notes, _amer. hist. rev._, iii., 334. general pinkney wished to have a good national gov^t & at the same time to leave a considerable share of power in the states. an election of either branch by the people scattered as they are in many states, particularly in s. carolina was totally impracticable. he differed from gentlemen who thought that a choice by the people w^d be a better guard ag^{st} bad measures, than by the legislatures. a majority of the people in s. carolina were notoriously for paper-money as a legal tender; the legislature had refused to make it a legal tender. the reason was that the latter had some sense of character and were restrained by that consideration. the state legislatures also he said would be more jealous, & more ready to thwart the national gov^t, if excluded from a participation in it. the idea of abolishing these legislatures w^d never go down. m^r wilson would not have spoken again, but for what had fallen from mr. read; namely, that the idea of preserving the state gov^{ts} ought to be abandoned. he saw no incompatibility between the national & state gov^{ts} provided the latter were restrained to certain local purposes; nor any probability of their being devoured by the former. in all confederated systems antient & modern the reverse had happened; the generality being destroyed gradually by the usurpations of the parts composing it. on the question for electing the 1^{st} branch by the state legislatures as moved by m^r pinkney: it was negatived: mass. no. c^t ay. n. y. no. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. no. m^r wilson moved to reconsider the vote excluding the judiciary from a share in the revision of the laws, and to add after "national executive" the words "with a convenient number of the national judiciary;" remarking the expediency of reinforcing the executive with the influence of that department. m^r madison 2^{ded} the motion. he observed that the great difficulty in rendering the executive competent to its own defence arose from the nature of republican gov^t which could not give to an individual citizen that settled pre-eminence in the eyes of the rest, that weight of property, that personal interest ag^{st} betraying the national interest, which appertain to an hereditary magistrate. in a republic personal merit alone could be the ground of political exaltation, but it would rarely happen that this merit would be so pre-eminent as to produce universal acquiescence. the executive magistrate would be envied & assailed by disappointed competitors: his firmness therefore w^d need support. he would not possess those great emoluments from his station, nor that permanent stake in the public interest which w^d place him out of the reach of foreign corruption. he would stand in need therefore of being controuled as well as supported. an association of the judges in his revisionary function w^d both double the advantage and diminish the danger. it w^d also enable the judiciary department the better to defend itself ag^{st} legislative encroachments. two objections had been made 1^{st} that the judges ought not to be subject to the bias which a participation in the making of laws might give in the exposition of them. 2^{dly} that the judiciary departm^t ought to be separate & distinct from the other great departments. the 1^{st} objection had some weight; but it was much diminished by reflecting that a small proportion of the laws coming in question before a judge w^d be such wherein he had been consulted; that a small part of this proportion w^d be so ambiguous as to leave room for his prepossessions; and that but a few cases w^d probably arise in the life of a judge under such ambiguous passages. how much good on the other hand w^d proceed from the perspicuity, the conciseness, and the systematic character w^{ch} the code of laws w^d receive from the judiciary talents. as to the 2^d objection, it either had no weight, or it applied with equal weight to the executive & to the judiciary revision of the laws. the maxim on which the objection was founded required a separation of the executive as well as the judiciary from the legislature & from each other. there w^d in truth however be no improper mixture of these distinct powers in the present case. in england, whence the maxim itself had been drawn, the executive had an absolute negative on the laws; and the supreme tribunal of justice (the house of lords) formed one of the other branches of the legislature. in short whether the object of the revisionary power was to restrain the legislature from encroaching on the other co-ordinate departments, or on the rights of the people at large; or from passing laws unwise in their principle, or incorrect in their form, the utility of annexing the wisdom and weight of the judiciary to the executive seemed incontestable. m^r gerry thought the executive, whilst standing alone w^d be more impartial than when he c^d be covered by the sanction & seduced by the sophistry of the judges. m^r king. if the unity of the executive was preferred for the sake of responsibility, the policy of it is as applicable to the revisionary as to the executive power. m^r pinkney had been at first in favor of joining the heads of the principal departm^{ts} the secretary at war, of foreign affairs &c.--in the council of revision. he had however relinquished the idea from a consideration that these could be called on by the executive magistrate whenever he pleased to consult them. he was opposed to the introduction of the judges into the business. col. mason was for giving all possible weight to the revisionary institution. the executive power ought to be well secured ag^{st} legislative usurpations on it. the purse & the sword ought never to get into the same hands whether legislative or executive. m^r dickinson. secrecy, vigor & despatch are not the principal properties req^d in the executive. important as these are, that of responsibility is more so, which can only be preserved; by leaving it singly to discharge its functions. he thought too a junction of the judiciary to it, involved an improper mixture of powers. m^r wilson remarked, that the responsibility required belonged to his executive duties. the revisionary duty was an extraneous one, calculated for collateral purposes. m^r williamson, was for substituting a clause requiring 2/3 for every effective act of the legislature, in place of the revisionary provision. on the question for joining the judges to the executive in the revisionary business, mass. no. con^t ay. n. y. ay. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. m^r pinkney gave notice that tomorrow he should move for the reconsideration of that clause in the sixth resolution adopted by the comm^e which vests a negative in the national legislature on the laws of the several states. the com^e rose & the house adj^d to 11 oc. thursday june 7^{th} 1787--in committee of the whole m^r pinkney according to notice moved to reconsider the clause respecting the negative on state laws, which was agreed to, and tomorrow for fixed the purpose. the clause providing for y^e appointment of the 2^d branch of the national legislature, having lain blank since the last vote on the mode of electing it, to wit, by the 1^{st} branch, m^r dickinson now moved "that the members of the 2^d branch ought to be chosen by the individual legislatures." m^r sherman seconded the motion; observing that the particular states would thus become interested in supporting the national govenm^t and that a due harmony between the two governments would be maintained. he admitted that the two ought to have separate and distinct jurisdictions, but that they ought to have a mutual interest in supporting each other. m^r pinkney. if the small states should be allowed one senator only, the number will be too great, there will be 80 at least. m^r dickinson had two reasons for his motion. 1, because the sense of the states would be better collected through their governments; than immediately from the people at large; 2. because he wished the senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the british house of lords as possible; and he thought such characters more likely to be selected by the state legislatures, than in any other mode. the greatness of the number was no objection with him. he hoped there would be 80 and twice 80. of them. if their number should be small, the popular branch could not be balanced by them. the legislature of a numerous people ought to be a numerous body. m^r williamson, preferred a small number of senators, but wished that each state should have at least one. he suggested 25 as a convenient number. the different modes of representation in the different branches, will serve as a mutual check. m^r butler was anxious to know the ratio of representation before he gave any opinion. m^r wilson. if we are to establish a national government, that government ought to flow from the people at large. if one branch of it should be chosen by the legislatures, and the other by the people, the two branches will rest on different foundations, and dissensions will naturally arise between them. he wished the senate to be elected by the people as well as the other branch, the people might be divided into proper districts for the purpose & moved to postpone the motion of m^r dickinson, in order to take up one of that import. m^r morris 2^{ded} him. m^r read proposed "that the senate should be appointed by the executive magistrate out of a proper number of persons to be nominated by the individual legislatures." he said he thought it his duty, to speak his mind frankly. gentlemen he hoped would not be alarmed at the idea. nothing short of this approach towards a proper model of government would answer the purpose, and he thought it best to come directly to the point at once.--his proposition was not seconded nor supported. m^r madison, if the motion (of mr. dickinson) should be agreed to, we must either depart from the doctrine of proportional representation; or admit into the senate a very large number of members. the first is inadmissible, being evidently unjust. the second is inexpedient. the use of the senate is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch. enlarge their number and you communicate to them the vices which they are meant to correct. he differed from m^r d. who thought that the additional number would give additional weight to the body. on the contrary it appeared to him that their weight would be in an inverse ratio to their number. the example of the roman tribunes, was applicable. they lost their influence and power, in proportion as their number was augmented. the reason seemed to be obvious: they were appointed to take care of the popular interests & pretensions at rome, because the people by reason of their numbers could not act in concert; were liable to fall into factions among themselves, and to become a prey to their aristocratic adversaries. the more the representatives of the people therefore were multiplied, the more they partook of the infirmities of their constituents, the more liable they became to be divided among themselves either from their own indiscretions or the artifices of the opposite faction, and of course the less capable of fulfilling their trust. when the weight of a set of men depends merely on their personal characters; the greater the number the greater the weight. when it depends on the degree of political authority lodged in them the smaller the number the greater the weight. these considerations might perhaps be combined in the intended senate; but the latter was the material one. m^r gerry. 4 modes of appointing the senate have been mentioned. 1. by the 1^{st} branch of the national legislature. this would create a dependance contrary to the end proposed. 2. by the national executive. this is a stride towards monarchy that few will think of. 3. by the people. the people have two great interests, the landed interest, and the commercial including the stockholders. to draw both branches from the people will leave no security to the latter interest; the people being chiefly composed of the landed interest, and erroneously supposing, that the other interests are adverse to it. 4. by the individual legislatures. the elections being carried thro' this refinement, will be most likely to provide some check in favor of the commercial interest ag^{st} the landed; without which oppression will take place, and no free gov^t can last long where that is the case. he was therefore in favor of this last. m^r dickenson.[70] the preservation of the states in a certain degree of agency is indispensable. it will produce that collision between the different authorities which should be wished for in order to check each other. to attempt to abolish the states altogether, would degrade the councils of our country, would be impracticable, would be ruinous. he compared the proposed national system to the solar system, in which the states were the planets, and ought to be left to move freely in their proper orbits. the gentleman from p^a (m^r wilson) wished he said to extinguish these planets. if the state governments were excluded from all agency in the national one, and all power drawn from the people at large, the consequence would be that the national gov^t would move in the same direction as the state gov^{ts} now do, and would run into all the same mischiefs. the reform would only unite the 13 small streams into one great current pursuing the same course without any opposition whatever. he adhered to the opinion that the senate ought to be composed of a large number, and that their influence from family weight & other causes would be increased thereby. he did not admit that the tribunes lost their weight in proportion as their n^o was augmented and gave a historical sketch of this institution. if the reasoning of (m^r madison) was good it would prove that the number of the senate ought to be reduced below ten, the highest n^o of the tribunitial corps. [70] it will throw light on this discussion to remark that an election by the state legislatures involved a surrender of the principle insisted on by the large states & dreaded by the small ones, namely that of a proportional representation in the senate. such a rule w^d make the body too numerous, as the smallest state must elect one member at least.--madison's note. m^r wilson. the subject it must be owned is surrounded with doubts and difficulties. but we must surmount them. the british governm^t cannot be our model. we have no materials for a similar one. our manners, our laws, the abolition of entails and of primogeniture, the whole genius of the people, are opposed to it. he did not see the danger of the states being devoured by the nation^l gov^t. on the contrary, he wished to keep them from devouring the national gov^t. he was not however for extinguishing these planets as was supposed by mr. d.--neither did he on the other hand, believe that they would warm or enlighten the sun. within their proper orbits they must still be suffered to act for subordinate purposes, for which their existence is made essential by the great extent of our country. he could not comprehend in what manner the landed interest w^d be rendered less predominant in the senate, by an election through the medium of the legislatures than by the people themselves. if the legislatures, as was now complained, sacrificed the commercial to the landed interest, what reason was there to expect such a choice from them as would defeat their own views. he was for an election by the people in large districts which w^d be most likely to obtain men of intelligence & uprightness; subdividing the districts only for the accommodation of voters. m^r madison could as little comprehend in what manner family weight, as desired by m^r d. would be more certainly conveyed into the senate through elections by the state legislatures, than in some other modes. the true question was in what mode the best choice w^d be made? if an election by the people, or thro' any other channel than the state legislatures promised as uncorrupt & impartial a preference of merit, there could surely be no necessity for an appointment by those legislatures. nor was it apparent that a more useful check would be derived thro' that channel than from the people thro' some other. the great evils complained of were that the state legislatures run into schemes of paper money &c. whenever solicited by the people, & sometimes without even the sanction of the people. their influence then, instead of checking a like propensity in the national legislature, may be expected to promote it. nothing can be more contradictory than to say that the nat^l legislature with^t a proper check, will follow the example of the state legislatures, & in the same breath, that the state legislatures are the only proper check. m^r sherman opposed elections by the people in districts, as not likely to produce such fit men as elections by the state legislatures. m^r gerry insisted that the commercial & monied interest w^d be more secure in the hands of the state legislatures, than of the people at large. the former have more sense of character, and will be restrained by that from injustice. the people are for paper money when the legislatures are ag^{st} it. in mass^{ts} the county conventions had declared a wish for a _depreciating_ paper that w^d sink itself. besides, in some states there are two branches in the legislature, one of which is somewhat aristocratic. there w^d therefore be so far a better chance of refinement in the choice. there seemed, he thought to be three powerful objections ag^{st} elections by districts, 1. it is impracticable; the people cannot be brought to one place for the purpose; and whether brought to the same place or not, numberless frauds w^d be unavoidable. 2. small states forming part of the same district with a large one, or large part of a large one, w^d have no chance of gaining an appointment for its citizens of merit. 3 a new source of discord w^d be opened between different parts of the same district. m^r pinkney thought the 2^d branch ought to be permanent & independent; & that the members of it w^d be rendered more so by receiving their appointment from the state legislatures. this mode w^d avoid the rivalships & discontents incident to the election by districts. he was for dividing the states into three classes according to their respective sizes, & for allowing to the 1^{st} class three members, to the 2^d two, & to the 3^d one. on the question for postponing m^r dickinson's motion referring the appointment of the senate to the state legislatures, in order to consider m^r wilson's for referring it to the people. mass. no. con^t no. n. y. no. n. j. no. p^a ay. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. col. mason. whatever power may be necessary for the nat^l gov^t a certain portion must necessarily be left in the states. it is impossible for one power to pervade the extreme parts of the u. s. so as to carry equal justice to them. the state legislatures also ought to have some means of defending themselves ag^{st} encroachments of the nat^l gov^t. in every other department we have studiously endeavoured to provide for its self-defence. shall we leave the states alone unprovided with the means for this purpose? and what better means can we provide than the giving them some share in, or rather to make them a constituent part of, the nat^l establishment. there is danger on both sides no doubt; but we have only seen the evils arising on the side of the state gov^{ts}. those on the other side remain to be displayed. the example of cong^s does not apply. cong^s had no power to carry their acts into execution, as the nat^l gov^t will have. on m^r dickinson's motion for an appointment of the senate by the state legislatures, mass. ay. c^t ay. n. y. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gerry gave notice that he w^d tomorrow move for a reconsideration of the mode of appointing the nat^l executive in order to substitute an appointm^t by the state executives. the committee rose & the house adj^d. friday june 8^{th} in committee of the whole. on a reconsideration of the clause giving the nat^l legislature a negative on such laws of the states as might be contrary to the articles of union, or treaties with foreign nations, m^r pinkney moved "that the national legislature sh^d have authority to negative all laws which they sh^d judge to be improper." he urged that such a universality of the power was indispensably necessary to render it effectual; that the states must be kept in due subordination to the nation; that if the states were left to act of themselves in any case, it w^d be impossible to defend the national prerogatives, however extensive they might be on paper; that the acts of congress had been defeated by this means; nor had foreign treaties escaped repeated violations: that this universal negative was in fact the corner stone of an efficient national gov^t; that under the british gov^t the negative of the crown had been found beneficial, and the _states_ are more one nation now, than the _colonies_ were then. m^r madison seconded the motion. he could not but regard an indefinite power to negative legislative acts of the states as absolutely necessary to a perfect system. experience had evinced a constant tendency in the states to encroach on the federal authority; to violate national treaties; to infringe the rights & interests of each other; to oppress the weaker party within their respective jurisdictions. a negative was the mildest expedient that could be devised for preventing these mischiefs. the existence of such a check would prevent attempts to commit them. should no such precaution be engrafted, the only remedy w^d lie in an appeal to coercion. was such a remedy eligible? was it practicable? could the national resources, if exerted to the utmost enforce a national decree ag^{st} mass^{ts} abetted perhaps by several of her neighbours? it w^d not be possible. a small proportion of the community, in a compact situation acting on the defensive, and at one of its extremities, might at any time bid defiance to the national authority. any gov^t for the u. states formed on the supposed practicability of using force ag^{st} the unconstitutional proceedings of the states, w^d prove as visionary & fallacious as the gov^t of cong^s. the negative w^d render the use of force unnecessary. the states c^d of themselves pass no operative act, any more than one branch of a legislature where there are two branches, can proceed without the other. but in order to give the negative this efficacy, it must extend to all cases. a discrimination w^d only be a fresh source of contention between the two authorities. in a word, to recur to the illustrations borrowed from the planetary system. this prerogative of the general gov^t, is the great pervading principle that must controul the centrifugal tendency of the states; which, without it, will continually fly out of their proper orbits and destroy the order & harmony of the political system. m^r williamson was ag^{st} giving a power that might restrain the states from regulating their internal police. m^r gerry c^d not see the extent of such a power, and was ag^{st} every power that was not necessary. he thought a remonstrance ag^{st} unreasonable acts of the states w^d reclaim them. if it sh^d not force might be resorted to. he had no objection to authorize a negative to paper money and similar measures. when the confederation was depending before congress, massachusetts was then for inserting the power of emitting paper money am^g the exclusive powers of congress. he observed that the proposed negative w^d extend to the regulations of the militia, a matter on which the existence of a state might depend. the nat^l legislature with such a power may enslave the states. such an idea as this will never be acceded to. it has never been suggested or conceived among the people. no speculative projector, and there are eno' of that character among us, in politics as well as in other things, has in any pamphlet or newspaper thrown out the idea. the states too have different interests and are ignorant of each other's interests. the negative therefore will be abused. new states too having separate views from the old states will never come into the union. they may even be under some foreign influence; are they in such case to participate in the negative on the will of the other states? m^r sherman thought the cases in which the negative ought to be exercised, might be defined. he wished the point might not be decided till a trial at least sh^d be made for that purpose. m^r wilson would not say what modifications of the proposed power might be practicable or expedient. but however novel it might appear the principle of it when viewed with a close & steady eye, is right. there is no instance in which the laws say that the individual sh^d be bound in one case, & at liberty to judge whether he will obey or disobey in another. the cases are parallel. abuses of the power over the individual person may happen as well as over the individual states. federal liberty is to the states, what civil liberty, is to private individuals, and states are not more unwilling to purchase it, by the necessary concession of their political sovereignty, than the savage is to purchase civil liberty by the surrender of the personal sovereignty, which he enjoys in a state of nature. a definition of the cases in which the negative should be exercised, is impracticable. a discretion must be left on one side or the other? will it not be most safely lodged on the side of the nat^l gov^t? among the first sentiments expressed in the first cong^s one was that virg^a is no more, that mass^{ts} is no [more], that p^a is no more &c. we are now one nation of brethren. we must bury all local interests & distinctions. this language continued for some time. the tables at length began to turn. no sooner were the state gov^{ts} formed than their jealousy & ambition began to display themselves. each endeavoured to cut a slice from the common loaf, to add to its own morsel, till at length the confederation became frittered down to the impotent condition in which it now stands. review the progress of the articles of confederation thro' congress & compare the first & last draught of it. to correct its vices is the business of this convention. one of its vices is the want of an effectual controul in the whole over its parts. what danger is there that the whole will unnecessarily sacrifice a part? but reverse the case, and leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests? m^r dickenson deemed it impossible to draw a line between the cases proper & improper for the exercise of the negative. we must take our choice of two things. we must either subject the states to the danger of being injured by the power of the nat^l gov^t or the latter to the danger of being injured by that of the states. he thought the danger greater from the states. to leave the power doubtful, would be opening another spring of discord, and he was for shutting as many of them as possible. m^r bedford. in answer to his colleague's question, where w^d be the danger to the states from this power, would refer him to the smallness of his own state which may be injured at pleasure without redress. it was meant he found to strip the small states of their equal right of suffrage. in this case delaware would have about 1/90 for its share in the general councils, whilst p^a & v^a would possess 1/3 of the whole. is there no difference of interests, no rivalship of commerce, of manufactures? will not these large states crush the small ones whenever they stand in the way of their ambitious or interested views. this shews the impossibility of adopting such a system as that on the table, or any other founded on a change in the priã±ple of representation. and after all, if a state does not obey the law of the new system, must not force be resorted to as the only ultimate remedy, in this as in any other system. it seems as if p^a & v^a by the conduct of their deputies wished to provide a system in which they would have an enormous & monstrous influence. besides, how can it be thought that the proposed negative can be exercised? are the laws of the states to be suspended in the most urgent cases until they can be sent seven or eight hundred miles, and undergo the deliberation of a body who may be incapable of judging of them? is the national legislature too to sit continually in order to revise the laws of the states? m^r madison observed that the difficulties which had been started were worthy of attention and ought to be answered before the question was put. the case of laws of urgent necessity must be provided for by some emanation of the power from the nat^l gov^t into each state so far as to give a temporary assent at least. this was the practice in the royal colonies before the revolution and would not have been inconvenient if the supreme power of negativing had been faithful to the american interest, and had possessed the necessary information. he supposed that the negative might be very properly lodged in the senate alone, and that the more numerous & expensive branch therefore might not be obliged to sit constantly. he asked m^r b. what would be the consequence to the small states of a dissolution of the union w^{ch} seemed likely to happen if no effectual substitute was made for the defective system existing, and he did not conceive any effectual system could be substituted on any other basis than that of a proportional suffrage? if the large states possessed the avarice & ambition with which they were charged, would the small ones in their neighbourhood, be more secure when all controul of a gen^l gov^t was withdrawn. m^r butler was vehement ag^{st} the negative in the proposed extent, as cutting off all hope of equal justice to the distant states. the people there would not he was sure give it a hearing. on the question for extending the negative power to all cases as proposed by (m^r p. & m^r m.) mass. ay. con^t no. n. y. no. n. j. no. p^a ay. del. div^d. m^r read & m^r dickenson ay. m^r bedford & m^r basset no. mary^d no. v^a ay. m^r r. m^r mason no. m^r blair, doc^r m^c c^g m^r m. ay. gen^l w. not consulted. n. c. no. s. c. no. geo no. on motion of m^r gerry and m^r king tomorrow was assigned for reconsidering the mode of appointing the national executive: the reconsideration being voted for by all the states except connecticut & n. carolina. m^r pinkney and m^r rutlidge moved to add to the resol^n 4. agreed to by the com^e the following, viz. "that the states be divided into three classes, the 1^{st} class to have 3 members, the 2^d two, & the 3^d one member each, that an estimate be taken of the comparative importance of each state at fixed periods, so as to ascertain the number of members they may from time to time be entitled to." the committee then rose and the house adjourned. saturday june 9^{th}[71] mr. luther martin from maryland took his seat. in committee of the whole. [71] edward carrington wrote to jefferson from new york, june 9, 1787: "the debates and proceedings of the convention are kept in profound secrecy--opinions of the probable result of their deliberations can only be formed from the prevailing impressions of men of reflection and understanding--these are reducible to two schemes--the first, a consolidation of the whole empire into one republic, leaving in the states nothing more than subordinate courts for facilitating the administration of the laws--the second an investiture of the foederal sovereignty with full and independent authority as to the trade, revenues, and forces of the union, and the rights of peace and war, together with a negative upon all the acts of the state legislatures. the first idea, i apprehend, would be impracticable, and therefore do not suppose it can be adopted--general laws through a country embracing so many climates, productions, and manners as the united states, would operate many oppressions & a general legislature would be found incompetent to the formation of local ones, as a majority would in every instance, be ignorant of, and unaffected by the objects of legislation.... something like the second will probably be formed--indeed i am certain that nothing less than what will give the foederal sovereignty a compleat controul over the state governments, will be thought worthy of discussion--such a scheme constructed upon well adjusted principles would certainly give us stability and importance as a nation, and if the executive powers can be sufficiently checked, must be eligible--unless the whole has a decided influence over the parts, the constant effort will be to resume the delegated powers, and there cannot be an inducement in the foederal sovereignty to refuse its assent to an innocent act of a state.... the eastern opinions are for a total surrender of the state sovereignties, and indeed some amongst them go to a monarchy at once--they have verged to anarchy, while to the southward we have only felt an inconvenience, and their proportionate disposition to an opposite extreme is a natural consequence."--_jeff. mss._ m^r gerry, according to previous notice given by him, moved "that the national executive should be elected by the executives of the states whose proportion of votes should be the same with that allowed to the states in the election of the senate." if the appointm^t should be made by the nat^l legislature, it would lessen that independence of the executive which ought to prevail, would give birth to intrigue and corruption between the executive & legislature previous to the election, and to partiality in the executive afterwards to the friends who promoted him. some other mode therefore appeared to him necessary. he proposed that of appointing by the state executives as most analogous to the principle observed in electing the other branches of the nat^l gov^t; the first branch being chosen by the _people_ of the states, & the 2^d by the legislatures of the states, he did not see any objection ag^{st} letting the executive be appointed by the executives of the states. he supposed the executives would be most likely to select the fittest men, and that it would be their interest to support the man of their own choice. m^r randolph urged strongly the inexpediency of m^r gerry's mode of appointing the nat^l executive. the confidence of the people would not be secured by it to the nat^l magistrate. the small states would lose all chance of an appointm^t from within themselves. bad appointments would be made; the executives of the states being little conversant with characters not within their own small spheres. the state executives too notwithstanding their constitutional independence, being in fact dependent on the state legislatures will generally be guided by the views of the latter, and prefer either favorites within the states, or such as it may be expected will be most partial to the interests of the state. a nat^l executive thus chosen will not be likely to defend with becoming vigilance & firmness the national rights ag^{st} state encroachments. vacancies also must happen. how can these be filled? he could not suppose either that the executives would feel the interest in supporting the nat^l executive which had been imagined. they will not cherish the great oak which is to reduce them to paltry shrubs. on the question for referring the appointment of the nat^l executive to the state executives as prop^d by m^r gerry mass^{ts} no. con^t no. n. y. no. n. j. no. p^a no. del. div^d. m^d no. v^a no. s. c. no. geo. no.[72] [72] "carried against the motion, 10 noes, and delaware divided."--yates, _secret proceedings_, etc., 111. the journal also includes north carolina among the noes.--_journal of the federal convention_, 110. m^r patterson moves that the committee resume the clause relating to the rule of suffrage in the nat^l legislature. m^r brearly[73] seconds him. he was sorry he said that any question on this point was brought into view. it had been much agitated in cong^s at the time of forming the confederation, and was then rightly settled by allowing to each sovereign state an equal vote. otherwise the smaller states must have been destroyed instead of being saved. the substitution of a ratio, he admitted carried fairness on the face of it; but on a deeper examination was unfair and unjust. judging of the disparity of the states by the quota of cong^s, virg^a would have 16 votes, and georgia but one. a like proportion to the others will make the whole number ninety. there will be 3 large states, and 10 small ones. the large states by which he meant mass^{ts} pen^a & virg^a will carry every thing before them. it had been admitted, and was known to him from facts within n. jersey that where large & small counties were united into a district for electing representatives for the district, the large counties always carried their point, and consequently that the large states would do so. virg^a with her sixteen votes will be a solid column indeed, a formidable phalanx. while georgia with her solitary vote, and the other little states will be obliged to throw themselves constantly into the scale of some large one, in order to have any weight at all. he had come to the convention with a view of being as useful as he could in giving energy and stability to the federal government. when the proposition for destroying the equality of votes came forward, he was astonished, he was alarmed. is it fair then it will be asked that georgia should have an equal vote with virg^a. he would not say it was. what remedy then? one only, that a map of the u. s. be spread out, that all the existing boundaries be erased, and that a new partition of the whole be made into 13 equal parts. [73] "mr. brearly is a man of good, rather than of brilliant parts. he is a judge of the supreme court of new jersey, and is very much in the esteem of the people. as an orator he has little to boast of, but as a man he has every virtue to recommend him. mr. brearly is about 40 years of age."--pierce's notes, _am. hist. rev._, iii., 327. m^r patterson considered the proposition for a proportional representation as striking at the existence of the lesser states. he w^d premise however to an investigation of this question some remarks on the nature structure and powers of the convention. the convention he said was formed in pursuance of an act of cong^s that this act was recited in several of the commissions, particularly that of mass^{ts} which he required to be read: that the amendment of the confederacy was the object of all the laws and commissions on the subject: that the articles of the confederation were therefore the proper basis of all the proceedings of the convention. we ought to keep within its limits, or we should be charged by our constituents with usurpation, that the people of america were sharpsighted and not to be deceived. but the commissions under which we acted were not only the measure of our power, they denoted also the sentiments of the states on the subject of our deliberation. the idea of a national gov^t as contradistinguished from a federal one, never entered into the mind of any of them, and to the public mind we must accommodate ourselves. we have no power to go beyond the federal scheme, and if we had the people are not ripe for any other. we must follow the people; the people will not follow us.--the _proposition_ could not be maintained whether considered in reference to us as a nation, or as a confederacy. a confederacy supposes sovereignty in the members composing it & sovereignty supposes equality. if we are to be considered as a nation, all state distinctions must be abolished, the whole must be thrown into hotchpot, and when an equal division is made, then there may be fairly an equality of representation. he held up virg^a mass^{ts} & p^a as the three large states, and the other ten as small ones; repeating the calculations of m^r brearly, as to the disparity of votes which w^d take place, and affirming that the small states would never agree to it. he said there was no more reason that a great individual state contributing much, should have more votes than a small one contributing little, than that a rich individual citizen should have more votes than an indigent one. if the rateable property of a was to that of b as 40 to 1, ought a for that reason to have 40 times as many votes as b. such a principle would never be admitted, and if it were admitted would put b entirely at the mercy of a. as a has more to be protected than b so he ought to contribute more for the common protection. the same may be said of a large state w^{ch} has more to be protected than a small one. give the large states an influence in proportion to their magnitude, and what will be the consequence? their ambition will be proportionally increased, and the small states will have every thing to fear. it was once proposed by galloway & some others that america should be represented in the british parl^t and then be bound by its laws. america could not have been entitled to more than 1/3 of the n^o of representatives which would fall to the share of g. b. would american rights & interests have been safe under an authority thus constituted? it has been said that if a nat^l gov^t is to be formed so as to operate on the people, and not on the states, the representatives ought to be drawn from the people. but why so? may not a legislature filled by the state legislatures operate on the people who chuse the state legislatures? or may not a practicable coercion be found. he admitted that there was none such in the existing system.--he was attached strongly to the plan of the existing confederacy, in which the people chuse their legislative representatives; and the legislatures their federal representatives. no other amendments were wanting than to mark the orbits of the states with due precision, and provide for the use of coercion, which was the great point. he alluded to the hint thrown out heretofore by m^r wilson of the necessity to which the large states might be reduced of confederating among themselves, by a refusal of the others to concur. let them unite if they please, but let them remember that they have no authority to compel the others to unite. n. jersey will never confederate on the plan before the committee. she would be swallowed up. he had rather submit to a monarch, to a despot, than to such a fate. he would not only oppose the plan here but on his return home do every thing in his power to defeat it there. m^r wilson, hoped if the confederacy should be dissolved, that a _majority_, that a _minority_ of the states would unite for their safety. he entered elaborately into the defence of a proportional representation, stating for his first position that as all authority was derived from the people, equal numbers of people ought to have an equal n^o of representatives, and different numbers of people different numbers of representatives. this principle had been improperly violated in the confederation, owing to the urgent circumstances of the time. as to the case of a. & b. stated by m^r patterson, he observed that in districts as large as the states, the number of people was the best measure of their comparative wealth. whether therefore wealth or numbers were to form the ratio it would be the same. m^r p. admitted persons, not property to be the measure of suffrage. are not the citizens of pen^a equal to those of n. jersey? does it require 150 of the former to balance 50 of the latter? representatives of different districts ought clearly to hold the same proportion to each other, as their respective constituents hold to each other. if the small states will not confederate on this plan, pen^a & he presumed some other states, would not confederate on any other. we have been told that each state being sovereign, all are equal. so each man is naturally a sovereign over himself, and all men are therefore naturally equal. can he retain this equality when he becomes a member of civil government. he can not. as little can a sovereign state, when it becomes a member of a federal govern^t. if n. j. will not part with her sovereignty it is vain to talk of gov^t. a new partition of the states is desirable, but evidently & totally impracticable. m^r williamson illustrated the cases by a comparison of the different states, to counties of different sizes within the same state; observing that proportional representation was admitted to be just in the latter case, and could not therefore be fairly contested in the former. the question being about to be put m^r patterson hoped that as so much depended on it, it might be thought best to postpone the decision till tomorrow, which was done, nem. con. the com^e rose & the house adjourned. monday, june 11^{th} m^r abraham baldwin from georgia took his seat. in committee of the whole. the clause concerning the rule of suffrage in the nat^l legislature postponed on saturday was resumed. m^r sherman proposed that the proportion of suffrage in the 1^{st} branch should be according to the respective numbers of free inhabitants; and that in the second branch or senate, each state should have one vote and no more. he said as the states would remain possessed of certain individual rights, each state ought to be able to protect itself: otherwise a few large states will rule the rest. the house of lords in england he observed had certain particular rights under the constitution, and hence they have an equal vote with the house of commons that they may be able to defend their rights. m^r rutlidge proposed that the proportion of suffrage in the 1^{st} branch should be according to the quotas of contribution. the justice of this rule he said could not be contested. m^r butler urged the same idea: adding that money was power; and that the states ought to have weight in the gov^t in proportion to their wealth. m^r king & m^r wilson,[74] in order to bring the question to a point moved "that the right of suffrage in the first branch of the national legislature ought not to be according [to] the rule established in the articles of confederation, but according to some equitable ratio of representation." the clause so far as it related to suffrage in the first branch was postponed in order to consider this motion. [74] in the printed journal mr. rutlidge is named as the seconder of the motion.--madison's note. m^r dickenson contended for the _actual_ contributions of the states as the rule of their representation & suffrage in the first branch. by thus connecting the interests of the states with their duty, the latter would be sure to be performed. m^r king remarked that it was uncertain what mode might be used in levying a national revenue; but that it was probable, imposts would be one source of it. if the _actual_ contributions were to be the rule the non-importing states, as con^t & n. jersey, w^d be in a bad situation indeed. it might so happen that they w^d have no representation. this situation of particular states had been always one powerful argument in favor of the 5 per c^t impost. the question being ab^t to be put doc^r franklin s^d he had thrown his ideas of the matter on a paper w^{ch} mr. wilson read to the committee in the words following--mr. chairman it has given me great pleasure to observe that till this point, the proportion of representation, came before us, our debates were carried on with great coolness & temper. if any thing of a contrary kind, has on this occasion appeared. i hope it will not be repeated; for we are sent here to _consult_, not to _contend_, with each other; and declarations of a fixed opinion, and of determined resolution, never to change it, neither enlighten nor convince us. positiveness and warmth on one side, naturally beget their like on the other; and tend to create and augment discord & division in a great concern, wherein harmony & union are extremely necessary to give weight to our councils, and render them effectual in promoting & securing the common good. i must own that i was originally of opinion it would be better if every member of congress, or our national council, were to consider himself rather as a representative of the whole, than as an agent for the interests of a particular state; in which case the proportion of members for each state would be of less consequence, & it would not be very material whether they voted by states or individually. but as i find this is not to be expected, i now think the number of representatives should bear some proportion to the number of the represented; and that the decisions sh^d be by the majority of members, not by the majority of the states. this is objected to from an apprehension that the greater states would then swallow up the smaller. i do not at present clearly see what advantage the greater states could propose to themselves by swallowing up the smaller, and therefore do not apprehend they would attempt it. i recollect that in the beginning of this century, when the union was proposed of the two kingdoms, england & scotland, the scotch patriots were full of fears, that unless they had an equal number of representatives in parliament, they should be ruined by the superiority of the english. they finally agreed however that the different proportions of importance in the union, of the two nations should be attended to, whereby they were to have only forty members in the house of commons, and only sixteen in the house of lords; a very great inferiority of numbers! and yet to this day i do not recollect that any thing has been done in the parliament of great britain to the prejudice of scotland; and whoever looks over the lists of public officers, civil & military of that nation will find i believe that the north britons enjoy at least their full proportion of emolument. but, sir, in the present mode of voting by states, it is equally in the power of the lesser states to swallow up the greater; and this is mathematically demonstrable. suppose for example, that 7 smaller states had each 3 members in the house, and the 6 larger to have one with another 6 members; and that upon a question, two members of each smaller state should be in the affirmative and one in the negative, they would make affirmatives 14 negatives 7 and that all the larger states should be unanimously in the negative, they would make negatives 36 -- in all 43 it is then apparent that the 14 carry the question against the 43, and the minority overpowers the majority, contrary to the common practice of assemblies in all countries and ages. the greater states sir are naturally as unwilling to have their property left in the disposition of the smaller, as the smaller are to have theirs in the disposition of the greater. an honorable gentleman has, to avoid this difficulty, hinted a proposition of equalizing the states. it appears to me an equitable one, and i should, for my own part, not be against such a measure, if it might be found practicable. formerly, indeed, when almost every province had a different constitution, some with greater others with fewer privileges, it was of importance to the borderers when their boundaries were contested, whether by running the division lines, they were placed on one side or the other. at present when such differences are done away, it is less material. the interest of a state is made up of the interests of its individual members. if they are not injured, the state is not injured. small states are more easily well & happily governed than large ones. if therefore in such an equal division, it should be found necessary to diminish pennsylvania, i should not be averse to the giving a part of it to n. jersey, and another to delaware. but as there would probably be considerable difficulties in adjusting such a division; and however equally made at first, it would be continually varying by the augmentation of inhabitants in some states, and their fixed proportion in others; and thence frequent occasion for new divisions, i beg leave to propose for the consideration of the committee another mode, which appears to me to be as equitable, more easily carried into practice, and more permanent in its nature. let the weakest state say what proportion of money or force it is able and willing to furnish for the general purposes of the union. let all the others oblige themselves to furnish each an equal proportion. the whole of these joint supplies to be absolutely in the disposition of congress. the congress in this case to be composed of an equal number of delegates from each state. and their decisions to be by the majority of individual members voting. if these joint and equal supplies should on particular occasions not be sufficient, let congress make requisitions on the richer and more powerful states for further aids, to be voluntarily afforded, leaving to each state the right of considering the necessity and utility of the aid desired, and of giving more or less as it should be found proper. this mode is not new. it was formerly practised with success by the british government with respect to ireland and the colonies. we sometimes gave even more than they expected, or thought just to accept; and in the last war carried on while we were united, they gave us back in 5 years a million sterling. we should probably have continued such voluntary contributions, whenever the occasions appeared to require them for the common good of the empire. it was not till they chose to force us, and to deprive us of the merit and pleasure of voluntary contributions that we refused & resisted. those contributions however were to be disposed of at the pleasure of a government in which we had no representative. i am therefore persuaded, that they will not be refused to one in which the representation shall be equal. my learned colleague (m^r wilson) has already mentioned that the present method of voting by states, was submitted to originally by congress, under a conviction of its impropriety, inequality, and injustice. this appears in the words of their resolution. it is of sep^r 6. 1774. the words are "resolved that in determining questions in this cong^s each colony or province shall have one vote: the cong^s not being possessed of or at present able to procure materials for ascertaining the importance of each colony." on the question for agreeing to m^r king's and m^r wilson's motion it passed in the affirmative. mass^{ts} ay. c^t ay. n. y. no. n. j. no. p^a ay. del. no. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. it was then moved by m^r rutlidge, 2^{ded} by m^r butler to add to the words "equitable ratio of representation" at the end of the motion just agreed to, the words "according to the quotas of contribution." on motion of m^r wilson seconded by m^r pinkney, this was postponed; in order to add, after the words "equitable ratio of representation" the words following: "in proportion to the whole number of white & other free citizens & inhabitants of every age sex & condition including those bound to servitude for a term of years and three fifths of all other persons not comprehended in the foregoing description, except indians not paying taxes, in each state," this being the rule in the act of congress agreed to by eleven states, for apportioning quotas of revenue on the states, and requiring a census only every 5, 7, or 10 years. m^r gerry thought property not the rule of representation. why then sh^d the blacks, who were property in the south, be in the rule of representation more than the cattle & horses of the north.[75] [75] after gerry spoke, according to yates, "mr. madison was of opinion at present, to fix the standard of representation, and let the detail be the business of a sub-committee."--_secret proceedings_, p. 116. on the question,--mass: con: n. y. pen: mary^d virg^a n. c. s. c. & geo: were in the affirmative: n. j. & del: in the negative. m^r sherman moved that a question be taken whether each state shall have one vote in the 2^d branch. every thing he said depended on this. the smaller states would never agree to the plan on any other principle than an equality of suffrage in this branch. m^r elsworth[76] seconded the motion. [76] "m^r elsworth is a judge of the supreme court in connecticut;--he is gentleman of a clear, deep, and copius understanding; eloquent, and connected in public debate; and always attentive to his duty. he is very happy in a reply, and choice in selecting such parts of his adversary's arguments as he finds make the strongest impressions,--in order to take off the force of them, so as to admit the power of his own. m^r elsworth is about 37 years of age, a man much respected for his integrity, and venerated for his abilities."--pierce's notes, _am. hist. rev._, iii., 326. on the question for allowing each state one vote in the 2^d branch, mass^{ts} no. con^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r wilson & m^r hamilton moved that the right of suffrage in the 2^d branch ought to be according to the same rule as in the 1^{st} branch. on this question for making the ratio of representation the same in the 2^d as in the 1^{st} branch it passed in the affirmative; mass^{ts} ay. con^t no. n. y. no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. resol: 11, for guarantying republican gov^t & territory to each state, being considered--the words "or partition," were, on motion of m^r madison added, after the words "voluntary junction;" mas. n. y. p. v^a n. c. s. c. g. ay. con: n. j. del: m^d no. m^r read disliked the idea of guarantying territory. it abetted the idea of distinct states w^{ch} would be a perpetual source of discord. there can be no cure for this evil but in doing away states altogether and uniting them all into one great society. alterations having been made in the resolution, making it read, "that a republican constitution & its existing laws ought to be guaranteed to each state by the u. states," the whole was agreed to nem. con.[77] [77] yates attributes this amendment to madison. "mr. madison moved an amendment, to add to or alter the resolution as follows: the republican constitutions and the existing laws of each state, to be guaranteed by the united states."--_secret proceedings_, etc., 116. resolution 13. for amending the national constitution hereafter without consent of the nat^l legislature being considered, several members did not see the necessity of the resolution at all, nor the propriety of making the consent of the nat^l legisl. unnecessary. col. mason urged the necessity of such a provision. the plan now to be formed will certainly be defective, as the confederation has been found on trial to be. amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and constitutional way than to trust to chance and violence. it would be improper to require the consent of the nat^l legislature, because they may abuse their power, and refuse their consent on that very account. the opportunity for such an abuse, may be the fault of the constitution calling for amendm^t. m^r randolph enforced these arguments. the words, "without requiring the consent of the nat^l legislature" were postponed. the other provision in the clause passed nem. con. resolution 14. requiring oaths from the members of the state gov^{ts} to observe the nat^l constitution & laws, being considered,[78] [78] "mr. williamson. this resolve will be unnecessary, as the union will become the law of the land."--yates, _secret proceedings_, etc., 117. m^r sherman opposed it as unnecessarily intruding into the state jurisdictions. m^r randolph considered it necessary to prevent that competition between the national constitution & laws & those of the particular states, which had already been felt. the officers of the states are already under oath to the states. to preserve a due impartiality they ought to be equally bound to the nat^l gov^t. the nat^l authority needs every support we can give it. the executive & judiciary of the states, notwithstanding their nominal independence on the state legislatures are in fact, so dependent on them, that unless they be brought under some tie to the nat^l system, they will always lean too much to the state systems, whenever a contest arises between the two. m^r gerry did not like the clause. he thought there was as much reason for requiring an oath of fidelity to the states from nat^l officers, as vice versa. m^r luther martin moved to strike out the words requiring such an oath from the state officers, viz "within the several states," observing that if the new oath should be contrary to that already taken by them it would be improper; if coincident the oaths already taken will be sufficient. on the question for striking out as proposed by mr. l. martin mass^{ts} no. con^t ay. n. y. no. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. question on whole resolution as proposed by m^r randolph; mass^{ts} ay. con^t no. n. y. no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. com^e rose & house adj^d. tuesday june 12^{th} in committee of whole the question taken on the resolution 15, to wit, referring the new system to the people of the states for ratification it passed in the affirmative mass^{ts} ay. con^t no. n. y. no. n. j. no. p^a[79] ay. del. div^d. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. [79] pennsylvania omitted in the printed journal. the vote is there entered as of june 11th.--madison's note. m^r sherman & m^r elseworth moved to fill the blank left in the 4^{th} resolution for the periods of electing the members of the first branch with the words, "every year;" mr. sherman observing that he did it in order to bring on some question. m^r rutlidge proposed "every two years." m^r jennifer[80] prop^d, "every three years," observing that the too great frequency of elections rendered the people indifferent to them, and made the best men unwilling to engage in so precarious a service. [80] "m^r jenifer is a gentleman of fortune in maryland;--he is always in good humour, and never fails to make his company pleased with him. he sits silent in the senate, and seems to be conscious that he is no politician. from his long continuance in single life, no doubt but he has made the vow of celibacy. he speaks warmly of the ladies notwithstanding. m^r jenifer is about 55 years of age, and once served as aid de camp to major gen^l lee."--pierce's notes, _am. hist. rev._, iii., 330. m^r madison seconded the motion for three years. instability is one of the great vices of our republics, to be remedied. three years will be necessary, in a government so extensive, for members to form any knowledge of the various interests of the states to which they do not belong, and of which they can know but little from the situation and affairs of their own. one year will be almost consumed in preparing for and travelling to & from the seat of national business. m^r gerry. the people of new england will never give up the point of annual elections, they know of the transition made in england from triennial to septennial elections, and will consider such an innovation here as the prelude to a like usurpation. he considered annual elections as the only defence of the people ag^{st} tyranny. he was as much ag^{st} a triennial house as ag^{st} a hereditary executive. m^r madison, observed that if the opinions of the people were to be our guide, it w^d be difficult to say what course we ought to take. no member of the convention could say what the opinions of his constituents were at this time; much less could he say what they would think if possessed of the information & lights possessed by the members here; & still less what would be their way of thinking 6 or 12 months hence. we ought to consider what was right & necessary in itself for the attainment of a proper governm^t. a plan adjusted to this idea will recommend itself--the respectability of this convention will give weight to their recommendation of it. experience will be constantly urging the adoption of it, and all the most enlightened & respectable citizens will be its advocates. should we fall short of the necessary & proper point, this influential class of citizens, will be turned against the plan, and little support in opposition to them can be gained to it from the unreflecting multitude. m^r gerry repeated his opinion that it was necessary to consider what the people would approve. this had been the policy of all legislators. if the reasoning of mr. madison were just, and we supposed a limited monarchy the best form in itself, we ought to recommend it, tho' the genius of the people was decidedly adverse to it, and having no hereditary distinctions among us, we were destitute of the essential materials for such an innovation. on the question for the triennial election of the 1^{st} branch mass. no. (m^r king ay.) m^r ghorum wavering. con^t no. n. y. ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. ay. the words requiring members of y^e 1^{st} branch to be of the age of ---years were struck out maryland alone no. the words "_liberal compensation for members_," being consid^d m^r madison moves to insert the words, "_& fixt_." he observed that it would be improper to leave the members of the nat^l legislature to be provided for by the state legisl^s, because it would create an improper dependence; and to leave them to regulate their own wages, was an indecent thing, and might in time prove a dangerous one. he thought wheat or some other article of which the average price throughout a reasonable period preceding might be settled in some convenient mode, would form a proper standard. col. mason seconded the motion; adding that it would be improper for other reasons to leave the wages to be regulated by the states. 1. the different states would make different provision for their representatives, and an inequality would be felt among them, whereas he thought they ought to be in all respects equal. 2. the parsimony of the states might reduce the provision so low that as had already happened in choosing delegates to congress, the question would be not who were most fit to be chosen, but who were most willing to serve. on the question for inserting the words, "and fixt" mass^{ts} no. con^t no. n. y. ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. doc^r franklyn said he approved of the amendment just made for rendering the salaries as fixed as possible; but disliked the word "_liberal_." he would prefer the word moderate if it was necessary to substitute any other. he remarked the tendency of abuses in every case, to grow of themselves when once begun, and related very pleasantly the progression in ecclesiastical benefices, from the first departure from the gratuitous provision for the apostles, to the establishment of the papal system. the word "liberal" was struck out nem con. on the motion of m^r pierce, that the wages should be paid out of the national treasury, mass^{ts} ay. c^t no. n. y. no. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. g. ay. question on the clause relating to term of service & compensation of 1^{st} branch, mass^{ts} ay. c^t no. n. y. no. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. on a question for striking out the "_ineligibility_ of members of the nat^l legis: to _state offices_," mass^{ts} div^d. con^t ay. n. y. ay. n. j. no. p^a no. del. no. m^d div^d. v^a no. n. c. ay. s. c. ay. geo. no. on the question for agreeing to the clause as amended, mass^{ts} ay. con^t no. n. y. ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. on a question for making members of the nat^l legislature _ineligible_ to any office under the nat^l gov^t for the term of 3 years after ceasing to be members, mass^{ts} no. con^t no. n. y. no. n. j. no. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. no. on the question for such ineligibility for one year, mass^{ts} ay. c^t ay. n. y. no. n. j. ay. p^a ay. del. ay. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. no. on question moved by mr. pinckney, for striking out "incapable of re-election into 1^{st} branch of the nat^l legisl. for ---years, and subject to recall" ag^d to nem. con. on question for striking out from the resol: 5 the words requiring members of the senatorial branch to be of the age of ---years at least mass^{ts} no. con^t ay. n. y. no. n. j. ay. p^a ay. del. no. m^d no. v^a no. n. c. div^d. s. c. no. geo. div^d. on the question for filling the blank with 30 years as the qualification; it was agreed to, mass^{ts} ay. c^t no. n. y. ay. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. m^r spaight moved to fill the blank for the duration of the appointm^{ts} to the 2^d branch of the national legislature with the words "7 years." m^r sherman, thought 7 years too long. he grounded his opposition he said on the principle that if they did their duty well, they would be reelected. and if they acted amiss, an earlier opportunity should be allowed for getting rid of them. he preferred 5 years which w^d be between the terms of the 1^{st} branch & of the executive. m^r pierce proposed 3 years. 7 years would raise an alarm. great mischiefs had arisen in england from their septennial act which was reprobated by most of their patriotic statesmen. m^r randolph was for the term of 7 years. the democratic licentiousness of the state legislatures proved the necessity of a firm senate. the object of this 2^d branch is to controul the democratic branch of the nat^l legislature. if it be not a firm body, the other branch being more numerous, and coming immediately from the people, will overwhelm it. the senate of maryland constituted on like principles had been scarcely able to stem the popular torrent. no mischief can be apprehended, as the concurrence of the other branch, and in some measure, of the executive, will in all cases be necessary. a firmness & independence may be the more necessary also in this branch, as it ought to guard the constitution ag^{st} encroachments of the executive who will be apt to form combinations with the demagogues of the popular branch. m^r madison, considered 7 years as a term by no means too long. what we wished was to give to the gov^t that stability which was every where called for, and which the enemies of the republican form alledged to be inconsistent with its nature. he was not afraid of giving too much stability by the term of seven years. his fear was that the popular branch would still be too great an overmatch for it. it was to be much lamented that we had so little direct experience to guide us. the constitution of maryland was the only one that bore any analogy to this part of the plan. in no instance had the senate of mary^d created just suspicions of danger from it. in some instances perhaps it may have erred by yielding to the h. of delegates. in every instance of their opposition to the measures of the h. of d. they had had with them the suffrages of the most enlightened and impartial people of the other states as well as of their own. in the states where the senates, were chosen in the same manner as the other branches, of the legislature, and held their seats for 4 years, the institution was found to be no check whatever ag^{st} the instabilities of the other branches. he conceived it to be of great importance that a stable & firm gov^t, organized in the republican form should be held out to the people. if this be not done, and the people be left to judge of this species of gov^t by y^e operations of the defective systems under which they now live, it is much to be feared the time is not distant when, in universal disgust, they will renounce the blessing which they have purchased at so dear a rate, and be ready for any change that may be proposed to them. on the question for "seven years" as the term for the 2^d branch mass^{ts} divided. (m^r king, m^r ghorum ay, m^r gerry, m^r strong, no) con^t no. n. y. div^d n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r butler and m^r rutlidge proposed that the members of the 2^d branch should be entitled to no salary or compensation for their services. on the question,[81]- mass^{ts} div^d. con^t ay. n. y. no. n. j. no. p. no. del. ay. m^d no. v^a no. n. c. no. s. c. ay. geo. no. [81] (it is probable y^e votes here turned chiefly on the idea that if the salaries were not here provided for, the members would be paid by their respective states) this note for the bottom margin.--madison's note. it was then moved & agreed that the clauses respecting the stipends & ineligibility of the 2^d branch be the same as, of the 1^{st} branch:--con: disagreeing to the ineligibility. it was moved & 2^{ded} to alter the resol: 9. so as to read "that the jurisdiction of the supreme tribunal shall be to hear & determine in the dernier resort, all piracies, felonies, &c." it was moved & 2^{ded} to strike out "all piracies & felonies on the high seas," which was agreed to. it was moved & agreed to strike out "all captures from an enemy." it was moved & agreed to strike out "other states" and insert "two distinct states of the union." it was moved & agreed to postpone the consideration of the resolution 9, relating to the judiciary: the com^e then rose & the house adjourned. wednesday june 13.[82] in committee of the whole [82] edward carrington wrote to madison from new york, june 13, 1787: "the public mind is now on the point of a favourable turn to the objects of your meeting, and, being fairly met with the result, will, i am persuaded, eventually embrace it--being calculated for the permanent fitness, and not the momentary habits of the country, it may at first be viewed with hesitation, but derived and patronized as it will be, its influence must extend into an adoption as the present fabric gives way--the work once well done will be done forever, but patched up in accommodation to the whim of the day, it will soon require the hand of the cobbler again, and in every unfortunate experiment the materials are rendered the less fit for that monument of civil liberty which we wish to erect.--constitute a federal government, invigorate & check it well--give it then independent powers over the trade the revenues, and force of the union, and all things that involve any relationship to foreign powers--give it also the revisal of all state acts--unless it possesses a compleat controul over the state governments, the constant effort will be to resume the delegated powers,--nor do i see what inducement the federal sovereignty can have to negative an innocent act of a state--constitute it in such shape that, its first principles being preserved, it will be a good republic--i wish to see that system have a fair experiment--but let the liability to encroachment be rather from the federal, than the state, governments--in the first case we shall insensibly glide into a monarchy: in the latter nothing but anarchy can be the consequence. "some gentlemen think of a total surrender of the state sovereignty--i see not the necessity of that measure for giving us national stability in consequence--the negative of the federal sovereignty will effectually prevent the existence of any licentious or inconsiderate act--and i believe that even under a new monarchy it would be found necessary thus to continue the local administration--general laws would operate many particular [undecipherable] and a general legislature would be found incompetent to the formation of local ones--the interest of the united states may be well combined for the common good--but the affairs of so extensive a country are not to be thrown into one mass--an attempt to confederate upon terms materially opposed to the particular interests would in all probability occasion a dismemberment, and in that event, within a long time yet to come, the prospects of commerce will be at an end as to any degree of national importance, let her fate be what it may as to freedom or vassalage."--_mad. mss._ resol: 9 being resumed the latter parts of the clause relating to the jurisdiction of the nat^l tribunals, was struck out nem. con in order to leave full room for their organization. m^r randolph & m^r madison, then moved the following resolution respecting a national judiciary,viz "that the jurisdiction of the national judiciary shall extend to cases, which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony" which was agreed to. m^r pinkney & m^r sherman moved to insert after the words "one supreme tribunal" the words "the judges of which to be appointed by the national legislature." m^r madison, objected to an app^t by the whole legislature. many of them were incompetent judges of the requisite qualifications. they were too much influenced by their partialities. the candidate who was present, who had displayed a talent for business in the legislative field, who had perhaps assisted ignorant members in business of their own, or of their constituents, or used other winning means, would without any of the essential qualifications for an expositor of the laws prevail over a competitor not having these recommendations, but possessed of every necessary accomplishment. he proposed that the appointment should be made by the senate, which as a less numerous & more select body, would be more competent judges, and which was sufficiently numerous to justify such a confidence in them. m^r sherman & m^r pinkney withdrew their motion, and the app^t by the senate was ag^d to nem. con. m^r gerry moved to restrain the senatorial branch from originating money bills. the other branch was more immediately the representatives of the people, and it was a maxim that the people ought to hold the purse-strings. if the senate should be allowed to originate such bills, they w^d repeat the experiment, till chance should furnish a sett of representatives in the other branch who will fall into their snares. m^r butler saw no reason for such a discrimination. we were always following the british constitution when the reason of it did not apply. there was no analogy between the h. of lords and the body proposed to be established. if the senate should be degraded by any such discriminations, the best men would be apt to decline serving in it in favor of the other branch. and it will lead the latter into the practice of tacking other clauses to money bills. m^r madison observed that the comentators on the brit: const: had not yet agreed on the reason of the restriction on the h. of l. in money bills. certain it was there could be no similar reason in the case before us. the senate would be the representatives of the people as well as the 1^{st} branch. if they s^d have any dangerous influence over it, they would easily prevail on some member of the latter to originate the bill they wished to be passed. as the senate would be generally a more capable sett of men, it w^d be wrong to disable them from any preparation of the business, especially of that which was most important, and in our republics, worse prepared than any other. the gentleman in pursuance of his principle ought to carry the restraint to the _amendment_, as well as the originating of money bills, since, an addition of a given sum w^d be equivalent to a distinct proposition of it. m^r king differed from m^r gerry, and concurred in the objections to the proposition. m^r read favored the proposition, but would not extend the restraint to the case of amendments. m^r pinkney thinks the question premature. if the senate sh^d be formed on the _same_ proportional representation as it stands at present, they s^d have equal power, otherwise if a different principle s^d be introduced. m^r sherman. as both branches must concur, there can be no danger whichever way the senate be formed. we establish two branches in order to get more wisdom, which is particularly needed in the finance business--the senate bear their share of the taxes, and are also the representatives of the people. what a man does by another, he does by himself is a maxim. in con^t both branches can originate in all cases, and it has been found safe & convenient. whatever might have been the reason of the rule as to the h. of lords, it is clear that no good arises from it now even there. gen^l pinkney. this distinction prevails in s. c. and has been a source of pernicious disputes between y^e 2 branches. the constitution is now evaded, by informal schedules of amendments handed from y^e senate to the other house. m^r williamson wishes for a question chiefly to prevent re-discussion. the restriction will have one advantage, it will oblige some member in the lower branch to move, & people can then mark him. on the question for excepting money bills, as prop^d by m^r gerry, mass. no. con^t no. n. y. ay. n. j. no. del. ay. m^d no. v^a ay. n. c. no. s. c. no. geo. no.[83] [83] according to the journal (121) pennsylvania was among the noes. committee rose & m^r ghorum made report, which was postponed till tomorrow, to give an opportunity for other plans to be proposed. the report was in the words following: report of the committee of whole on m^r randolph's propositions. 1. res^d that it is the opinion of this committee that a national governm^t ought to be established, consisting of a supreme legislative, executive & judiciary. 2. resol^d that the national legislature ought to consist of two branches. 3. res^d that the members of the first branch of the national legislature ought to be elected by the people of the several states for the term of three years, to receive fixed stipends by which they may be compensated for the devotion of their time to public service, to be paid out of the national treasury: to be ineligible to any office established by a particular state, or under the authority of the u. states, (except those peculiarly belonging to the functions of the first branch), during the term of service, and under the national government for the space of one year after its expiration. 4. res^d that the members of the second branch of the nat^l legislature ought to be chosen by the individual legislatures, to be of the age of 30 years at least, to hold their offices for a term sufficient to ensure their independency, namely, seven years, to receive fixed stipends by which they may be compensated for the devotion of their time to public service to be paid out of the national treasury; to be ineligible to any office established by a particular state, or under the authority of the u. states, (except those peculiarly belonging to the functions of the second branch) during the term of service, and under the nat^l gov^t for the space of one year after its expiration. 5. res^d that each branch ought to possess the right of originating acts. 6. res^d that the nat^l legislature ought to be empowered to enjoy the legislative rights vested in cong^s by the confederation, and moreover to legislate in all cases to which the separate states are incompetent; or in which the harmony of the u. s. may be interrupted by the exercise of individual legislation; to negative all laws passed by the several states contravening in the opinion of the national legislature the articles of union, or any treaties subsisting under the authority of the union. 7. res^d that the rights of suffrage in the 1^{st} branch of the national legislature, ought not to be according to the rule established in the articles of confederation but according to some equitable ratio of representation, namely, in proportion to the whole number of white & other free citizens & inhabitants, of every age sex and condition, including those bound to servitude for a term of years, & three fifths of all other persons, not comprehended in the foregoing description, except indians not paying taxes in each state. 8. resolved that the right of suffrage in the 2^d branch of the national legislature ought to be according to the rule established for the first. 9. resolved that a national executive be instituted to consist of a single person, to be chosen by the nat^l legislature for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for--to be ineligible a second time, & to be removeable on impeachment and conviction of malpractices or neglect of duty--to receive a fixed stipend by which he may be compensated for the devotion of his time to public service to be paid out of the national treasury. 10. resol^d that the nat^l executive shall have a right to negative any legislative act, which shall not be afterwards passed unless by two thirds of each branch of the national legislature. 11. resol^d that a nat^l judiciary be established, to consist of one supreme tribunal, the judges of which to be appointed by the 2^d branch of the nat^l legislature, to hold their offices during good behaviour, & to receive punctually at stated times a fixed compensation for their services, in which no increase or diminution shall be made, so as to affect the persons actually in office at the time of such increase or diminution. 12. resol^d that the nat^l legislature be empowered to appoint inferior tribunals. 13. res^d that the jurisdiction of the nat^l judiciary shall extend to all cases which respect the collection of the nat^l revenue, impeachments of any nat^l officers, and questions which involve the national peace & harmony. 14. res^d that provision ought to be made for the admission of states lawfully arising within the limits of the u. states, whether from a voluntary junction of government & territory or otherwise, with the consent of a number of voices in the nat^l legislature less than the whole. 15. res^d that provision ought to be made for the continuance of congress and their authorities and privileges untill a given day after the reform of the articles of union shall be adopted and for the completion of all their engagements. 16. res^d that a republican constitution & its existing laws ought to be guaranteed to each state by the u. states. 17. res^d that provision ought to be made for the amendment of the articles of union whensoever it shall seem necessary. 18. res^d that the legislative, executive & judiciary powers within the several states ought to be bound by oath to support the articles of union. 19. res^d that the amendments which shall be offered to the confederation by the convention ought at a proper time or times after the approbation of cong^s to be submitted to an assembly or assemblies recommended by the several legislatures to be expressly chosen by the people to consider and decide thereon. thursday june 14. in convention. m^r patterson, observed to the convention that it was the wish of several deputations, particularly that of n. jersey, that further time might be allowed them to contemplate the plan reported from the committee of the whole, and to digest one purely federal, and contradistinguished from the reported plan. he said they hoped to have such an one ready by tomorrow to be laid before the convention: and the convention adjourned that leisure might be given for the purpose. friday june 15^{th} 1787 m^r patterson, laid before the convention the plan which he said several of the deputations wished to be substituted in place of that proposed by m^r randolph. after some little discussion of the most proper mode of giving it a fair deliberation it was agreed that it should be referred to a committee of the whole, and that in order to place the two plans in due comparison, the other should be recommitted. at the earnest request of m^r lansing[84] & some other gentlemen, it was also agreed that the convention should not go into co[~m]ittee of the whole on the subject till tomorrow, by which delay the friends of the plan proposed by m^r patterson w^d be better prepared to explain & support it, and all would have an opportu^y of taking copies.[85] [84] "mr. lansing is a practising attorney at albany, and mayor of that corporation. he has a hisitation in his speech, that will prevent his being an orator of any eminence;--his legal knowledge i am told is not extensive, nor his education a good one. he is however a man of good sense, plain in his manners, and sincere in his friendships. he is about 32 years of age."--pierce's notes, _am. hist. rev._, iii., 327. [85] (this plan had been concerted among the deputations or members thereof, from con^t n. y. n. j. del. and perhaps m^r martin from mary^d who made with them a common cause though on different principles. con^t & n. y. were ag^{st} a departure from the principle of the confederation, wishing rather to add a few new powers to cong^s than to substitute, a national gov^t. the states of n. j. & del. were opposed to a national gov^t because its patrons considered a proportional representation of the states as the basis of it. the eagerness displayed by the members opposed to a nat^l gov^t from these different motives began now to produce serious anxiety for the result of the convention. m^r dickenson said to m^r madison you see the consequence of pushing things too far. some of the members from the small states wish for two branches in the general legislature, and are friends to a good national government; but we would sooner submit to foreign power, than submit to be deprived of an equality of suffrage in both branches of the legislature, and thereby be thrown under the domination of the large states.)--madison note. "mr. madison moved for the report of the committee, and the question may then come on whether the convention will postpone it in order to take into consideration the system now offered. "mr. lansing is of opinion that the two systems are fairly contrasted. the one now offered is on the basis of amending the federal government, and the other to be reported as a national government, on propositions which exclude the propriety of amendment. considering therefore its importance, and that justice may be done to its weighty consideration, he is for postponing it a day. "col. hamilton cannot say he is in sentiment with either plan--supposes both might again be considered as federal plans, and by this means they will be fairly in committee, and be contrasted so as to make a comparative estimate of the two."--yates, _secret proceedings_, etc., 121, 122. the propositions from n. jersey moved by m^r patterson were in the words following. 1. res^d that the articles of confederation ought to be so revised, corrected, & enlarged, as to render the federal constitution adequate to the exigencies of government, & the preservation of the union. 2. res^d that in addition to the powers vested in the u. states in congress, by the present existing articles of confederation, they be authorized to pass acts for raising a revenue, by levying a duty or duties on all goods or merchandizes of foreign growth or manufacture, imported into any part of the u. states, by stamps on paper, vellum or parchment, and by a postage on all letters or packages passing through the general post-office, to be applied to such federal purposes as they shall deem proper & expedient; to make rules & regulations for the collection thereof; and the same from time to time, to alter & amend in such manner as they shall think proper, to pass acts for the regulation of trade & commerce as well with foreign nations as with each other: provided that all punishments, fines, forfeitures & penalties to be incurred for contravening such acts rules and regulations shall be adjudged by the common law judiciaries of the state in which any offence contrary to the true intent & meaning of such acts rules & regulations shall have been committed or perpetrated, with liberty of commencing in the first instance all suits & prosecutions for that purpose in the superior common law judiciary in such state, subject nevertheless, for the correction of all errors, both in law & fact in rendering judgment, to an appeal to the judiciary of the u. states. 3. res^d that whenever requisitions shall be necessary, instead of the rule for making requisitions mentioned in the articles of confederation, the united states in cong^s be authorized to make such requisitions in proportion to the whole number of white & other free citizens & inhabitants of every age sex and condition including those bound to servitude for a term of years & three fifths of all other persons not comprehended in the foregoing description, except indians not paying taxes; that if such requisitions be not complied with, in the time specified therein, to direct the collection thereof in the non complying states & for that purpose to devise and pass acts directing & authorizing the same; provided that none of the powers hereby vested in the u. states in cong^s shall be exercised without the consent of at least ---states, and in that proportion if the number of confederated states should hereafter be increased or diminished. 4. res^d that the u. states in cong^s be authorized to elect a federal executive to consist of ---persons, to continue in office for the term of ---years, to receive punctually at stated times a fixed compensation for their services, in which no increase nor diminution shall be made so as to affect the persons composing the executive at the time of such increase or diminution, to be paid out of the federal treasury; to be incapable of holding any other office or appointment during their time of service and for ---years thereafter: to be ineligible a second time, & removeable by cong^s on application by a majority of the executives of the several states; that the executives besides their general authority to execute the federal acts ought to appoint all federal officers not otherwise provided for, & to direct all military operations; provided that none of the persons composing the federal executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as general or in any other capacity. 5. res^d that a federal judiciary be established to consist of a supreme tribunal the judges of which to be appointed by the executive, & to hold their offices during good behaviour, to receive punctually at stated times a fixed compensation for their services in which no increase nor diminution shall be made, so as to affect the persons actually in office at the time of such increase or diminution: that the judiciary so established shall have authority to hear & determine in the first instance on all impeachments of federal officers, & by way of appeal in the dernier resort in all cases touching the rights of ambassadors, in all cases of captures from an enemy, in all cases of piracies & felonies on the high seas, in all cases in which foreigners may be interested, in the construction of any treaty or treaties, or which may arise on any of the acts for the regulation of trade, or the collection of the federal revenue: that none of the judiciary shall during the time they remain in office be capable of receiving or holding any other office or appointment during their term of service, or for --- thereafter. 6. res^d that all acts of the u. states in cong^s made by virtue & in pursuance of the powers hereby & by the articles of confederation vested in them, and all treaties made & ratified under the authority of the u. states shall be the supreme law of the respective states so far forth as those acts or treaties shall relate to the said states or their citizens, and that the judiciary of the several states shall be bound thereby in their decisions any thing in the respective laws of the individual states to the contrary notwithstanding: and that if any state, or any body of men in any state shall oppose or prevent y^e carrying into execution such acts or treaties, the federal executive shall be authorized to call forth y^e power of the confederated states, or so much thereof as may be necessary to enforce and compel an obedience to such acts, or an observance of such treaties. 7. res^d that provision be made for the admission of new states into the union. 8. res^d that the rule for naturalization ought to be same in every state. 9. res^d that a citizen of one state committing an offence in another state of the union, shall be deemed guilty of the same offence as if it had been committed by a citizen of the state in which the offence was committed.[86] [86] this copy of m^r patterson's propositions varies in a few clauses from that in the printed journal furnished from the papers of m^r brearley a colleague of m^r patterson. a confidence is felt, notwithstanding, in its accuracy. that the copy in the journal is not entirely correct is shewn by the ensuing speech of m^r wilson (june 16) in which he refers to the mode of removing the executive by impeachment & conviction as a feature in the virg^a plan forming one of its contrasts to that of m^r patterson, which proposed a removal on the application of a majority of the executives of the states. in the copy printed in the journal, the two modes are combined in the same clause; whether through inadvertence, or as a contemplated amendment, does not appear.--madison's note. the journal contains: "6. resolved, that the legislative, executive, and judiciary powers within the several states, ought to be bound, by oath, to support the articles of union," and "9. resolved, that provision ought to be made for hearing and deciding upon all disputes arising between the united states and an individual state, respecting territory."--_journal of the federal convention_, 126. adjourned. saturday june 16. in committee of the whole on resolutions propos^d by m^r p. & m^r r. m^r lansing called for the reading of the 1^{st} resolution of each plan, which he considered as involving principles directly in contrast; that of m^r patterson says he sustains the sovereignty of the respective states, that of m^r randolph destroys it: the latter requires a negative on all the laws of the particular states; the former, only certain general powers for the general good. the plan of m^r r. in short absorbs all power except what may be exercised in the little local matters of the states which are not objects worthy of the supreme cognizance. he grounded his preference of m^r p's plan, chiefly on two objections ag^{st} that of m^r r. 1. want of power in the convention to discuss & propose it. 2. the improbability of its being adopted, 1. he was decidedly of opinion that the power of the convention was restrained to amendments of a federal nature, and having for their basis the confederacy in being. the act of congress the tenor of the acts of the states, the co[~m]issions produced by the several deputations all proved this. and this limitation of the power to an amendment of the confederacy, marked the opinion of the states, that it was unnecessary & improper to go farther. he was sure that this was the case with his state. n. york would never have concurred in sending deputies to the convention, if she had supposed the deliberations were to turn on a consolidation of the states, and a national government. 2. was it probable that the states would adopt & ratify a scheme, which they had never authorized us to propose? and which so far exceeded what they regarded as sufficient? we see by their several acts particularly in relation to the plan of revenue proposed by cong. in 1783, not authorized by the articles of confederation, what were the ideas they then entertained. can so great a change be supposed to have already taken place. to rely on any change which is hereafter to take place in the sentiments of the people would be trusting to too great an uncertainty. we know only what their present sentiments are. and it is in vain to propose what will not accord with these. the states will never feel a sufficient confidence in a general government to give it a negative on their laws. the scheme is itself totally novel. there is no parallel to it to be found. the authority of congress is familiar to the people, and an augmentation of the powers of congress will be readily approved by them. m^r patterson, said as he had on a former occasion given his sentiments on the plan proposed by m^r r. he would now avoiding repetition as much as possible give his reasons in favor of that proposed by himself. he preferred it because it accorded 1. with the powers of the convention, 2 with the sentiments of the people. if the confederacy was radically wrong, let us return to our states, and obtain larger powers, not assume them ourselves. i came here not to speak my own sentiments, but the sentiments of those who sent me. our object is not such a governm^t as may be best in itself, but such a one as our constituents have authorized us to prepare, and as they will approve. if we argue the matter on the supposition that no confederacy at present exists, it can not be denied that all the states stand on the footing of equal sovereignty. all therefore must concur before any can be bound. if a proportional representation be right, why do we not vote so here? if we argue on the fact that a federal compact actually exists, and consult the articles of it we still find an equal sovereignty to be the basis of it. he reads the 5^{th} art: of confederation giving each state a vote--& the 13^{th} declaring that no alteration shall be made without unanimous consent. this is the nature of all treaties. what is unanimously done, must be unanimously undone. it was observed (by m^r wilson) that the larger state gave up the point, not because it was right, but because the circumstances of the moment urged the concession. be it so. are they for that reason at liberty to take it back. can the donor resume his gift without the consent of the donee. this doctrine may be convenient, but it is a doctrine that will sacrifice the lesser states. the larger states acceded readily to the confederacy. it was the small ones that came in reluctantly and slowly. n. jersey & maryland were the two last, the former objecting to the want of power in congress over trade: both of them to the want of power to appropriate the vacant territory to the benefit of the whole.--if the sovereignty of the states is to be maintained, the representatives must be drawn immediately from the states, not from the people: and we have no power to vary the idea of equal sovereignty. the only expedient that will cure the difficulty, is that of throwing the states into hotchpot. to say that this is impracticable, will not make it so. let it be tried, and we shall see whether the citizens of mass^{ts} pen^a & v^a accede to it. it will be objected that coercion will be impracticable. but will it be more so in one plan than the other? its efficacy will depend on the quantum of power collected, not on its being drawn from the states, or from the individuals; and according to his plan it may be exerted on individuals as well as according that of m^r r. a distinct executive & judiciary also were equally provided by his plan. it is urged that two branches in the legislature are necessary. why? for the purpose of a check. but the reason of the precaution is not applicable to this case. within a particular state, where party heats prevail, such a check may be necessary. in such a body as congress it is less necessary, and besides, the delegations of the different states are checks on each other. do the people at large complain of cong^s? no, what they wish is that cong^s may have more power. if the power now proposed be not eno', the people hereafter will make additions to it. with proper powers cong^s will act with more energy & wisdom than the proposed nat^l legislature; being fewer in number, and more secreted & refined by the mode of election. the plan of m^r r. will also be enormously expensive. allowing georgia & del. two representatives each in the popular branch the aggregate number of that branch will be 180. add to it half as many for the other branch and you have 270, coming once at least a year from the most distant as well as the most central parts of the republic. in the present deranged state of our finances can so expensive a system be seriously thought of? by enlarging the powers of cong^s the greatest part of this expence will be saved, and all purposes will be answered. at least a trial ought to be made. m^r wilson entered into a contrast of the principal points of the two plans so far he said as there had been time to examine the one last proposed. these points were 1. in the virg^a plan there are 2 & in some degree 3 branches in the legislature: in the plan from n. j. there is to be a _single_ legislature only--2. representation of the people at large is the basis of one: the state legislatures, the pillars of the other--3. proportional representation prevails in one;--equality of suffrage in the other--4. a single executive magistrate is at the head of the one:--a plurality is held out in the other.--5. in the one the majority of the people of the u. s. must prevail:--in the other a minority may prevail. 6. the nat^l legislature is to make laws in all cases to which the separate states are incompetent &:--in place of this cong^s are to have additional power in a few cases only--7. a negative on the laws of the states:--in place of this coertion to be substituted--8. the executive to be removable on impeachment & conviction;--in one plan: in the other to be removable at the instance of a majority of the executives of the states--9. revision of the laws provided for in one:--no such check in the other--10. inferior national tribunals in one:--none such in the other. 11. in one y^e jurisdiction of nat^l tribunals to extend &c.--; an appellate jurisdiction only allowed in the other. 12. here the jurisdiction is to extend to all cases affecting the nation^l peace & harmony; _there_ a few cases only are marked out. 13. finally y^e ratification is in this to be by the people themselves:--in that by the legislative authorities according to the 13 art: of the confederation. with regard to the _power of the convention_, he conceived himself authorized to _conclude nothing_, but to be at liberty to _propose any thing_. in this particular he felt himself perfectly indifferent to the two plans. with _regard to the sentiments of the people_, he conceived it difficult to know precisely what they are. those of the particular circle in which one moved, were commonly mistaken for the general voice. he could not persuade himself that the state gov^{ts} & sovereignties were so much the idols of the people, nor a nat^l gov^t so obnoxious to them, as some supposed. why s^d a nat^l gov^t be unpopular? has it less dignity? will each citizen enjoy under it less liberty or protection? will a citizen of _deleware_ be degraded by becoming a citizen of the _united states_? where do the people look at present for relief from the evils of which they complain? is it from an internal reform of their gov^{ts}? no, sir. it is from the nat^l councils that relief is expected. for these reasons he did not fear, that the people would not follow us into a national gov^t and it will be a further recommendation of m^r r'^s plan that it is to be submitted to _them_, and not to the _legislatures_, for ratification. proceeding now to the 1^{st} point on which he had contrasted the two plans, he observed that anxious as he was for some augmentation of the federal powers, it would be with extreme reluctance indeed that he could ever consent to give powers to cong^s he had two reasons either of w^{ch} was sufficient, 1. cong^s as a legislative body does not stand on the people. 2. it is a _single_ body. 1. he would not repeat the remarks he had formerly made on the principles of representation, he would only say that an inequality in it, has ever been a poison contaminating every branch of gov^t. in g. britain where this poison has had a full operation, the security of private rights is owing entirely to the purity of her tribunals of justice, the judges of which are neither appointed nor paid, by a venal parliament. the political liberty of that nation, owing to the inequality of representation is at the mercy of its rulers. he means not to insinuate that there is any parallel between the situation of that country & ours at present. but it is a lesson we ought not to disregard, that the smallest bodies in g. b. are notoriously the most corrupt. every other source of influence must also be stronger in small than large bodies of men. when lord chesterfield had told us that one of the dutch provinces had been seduced into the views of france, he need not have added, that it was not holland, but one of the _smallest_ of them. there are facts among ourselves which are known to all. passing over others, he will only remark that the _impost_, so anxiously wished for by the public was defeated not by any of the _larger_ states in the union. 2. _congress is a single legislature._ despotism comes on mankind in different shapes, sometimes in an executive, sometimes in a military, one. is there no danger of a legislative despotism? theory & practice both proclaim it. if the legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. in a single house there is no check, but the inadequate one, of the virtue & good sense of those who compose it. on another great point, the contrast was equally favorable to the plan reported by the committee of the whole. it vested the executive powers in a single magistrate. the plan of n. jersey, vested them in a plurality. in order to controul the legislative authority, you must divide it. in order to controul the executive you must unite it. one man will be more responsible than three. three will contend among themselves till one becomes the master of his colleagues. in the triumvirates of rome first cã¦sar, then augustus, are witnesses of this truth. the kings of sparta, & the consuls of rome prove also the factious consequences of dividing the executive magistracy. having already taken up so much time he w^d not he s^d, proceed to any of the other points. those on which he had dwelt, are sufficient of themselves; and on the decision of them, the fate of the others will depend. m^r pinkney,[87] the whole comes to this, as he conceived. give n. jersey an equal vote, and she will dismiss her scruples, and concur in the nat^l system. he thought the convention authorized to go any length in recommending; which they found necessary to remedy the evils which produced this convention. [87] yates states it was c. c. pinckney who said this.--_secret proceedings_, etc., 123. m^r elseworth proposed as a more distinctive form of collecting the mind of the committee on the subject, "that the legislative power of the u.s. should remain in cong^s" this was not seconded, though it seemed better calculated for the purpose than the 1^{st} proposition of m^r patterson in place of which mr. e. wished to substitute it. m^r randolph, was not scrupulous on the point of power. when the salvation of the republic was at stake, it would be treason to our trust, not to propose what we found necessary. he painted in strong colours, the imbecility of the existing confederacy, & the danger of delaying a substantial reform. in answer to the objection drawn from the sense of our constituents as denoted by their acts relating to the convention and the objects of their deliberation, he observed that as each state acted separately in the case, it would have been indecent for it to have charged the existing constitution with all the vices which it might have perceived in it. the first state that set on foot this experiment would not have been justified in going so far, ignorant as it was of the opinion of others, and sensible as it must have been of the uncertainty of a successful issue to the experiment. there are certainly reasons of a peculiar nature where the ordinary cautions must be dispensed with; and this is certainly one of them. he w^d not as far as depended on him leave any thing that seemed necessary, undone. the present moment is favorable, and is probably the last that will offer. the true question is whether we shall adhere to the federal plan, or introduce the national plan. the insufficiency of the former has been fully displayed by the trial already made. there are but two modes, by which the end of a gen^l gov^t can be attained: the 1^{st} is by coercion as proposed by m^r p's plan 2. by real legislation as prop^d by the other plan. coercion he pronounced to be _impracticable_, _expensive_, _cruel to individuals_. it tended also to habituate the instruments of it to shed the blood & riot in the spoils of their fellow citizens, and consequently trained them up for the service of ambition. we must resort therefore to a national _legislation over individuals_, for which cong^s are unfit. to vest such power in them, would be blending the legislative with the executive, contrary to the rec^d maxim on this subject: if the union of these powers heretofore in cong^s has been safe, it has been owing to the general impotency of that body. cong^s are moreover not elected by the people, but by the legislatures who retain even a power of recall. they have therefore no will of their own, they are a mere diplomatic body, and are always obsequious to the views of the states, who are always encroaching on the authority of the u. states. a provision for harmony among the states, as in trade, naturalization &.--for crushing rebellion whenever it may rear its crest--and for certain other general benefits, must be made. the powers for these purposes can never be given to a body, inadequate as congress are in point of representation, elected in the mode in which they are, and possessing no more confidence than they do: for notwithstanding what has been said to the contrary, his own experience satisfied him that a rooted distrust of congress pretty generally prevailed. a nat^l gov^t alone, properly constituted, will answer the purpose; and he begged it to be considered that the present is the last moment for establing one. after this select experiment, the people will yield to despair. the committee rose & the house adjourned. monday june 18. in committee of the whole on the propositions of m^r patterson & m^r randolph. on motion of m^r dickinson to postpone the 1^{st} resolution in m^r patterson's plan, in order to take up the following viz--"that the articles of confederation ought to be revised and amended, so as to render the government of the u. s. adequate to the exigencies, the preservation and the prosperity of the union" the postponement was agreed to by 10 states, pen: divided. mr. hamilton,[88] had been hitherto silent on the business before the convention, partly from respect to others whose superior abilities age & experience rendered him unwilling to bring forward ideas dissimilar to theirs, and partly from his delicate situation with respect to his own state, to whose sentiments as expressed by his colleages, he could by no means accede. this crisis however which now marked our affairs, was too serious to permit any scruples whatever to prevail over the duty imposed on every man to contribute his efforts for the public safety & happiness. he was obliged therefore to declare himself unfriendly to both plans. he was particularly opposed to that from n. jersey, being fully convinced, that no amendment of the confederation, leaving the states in possession of their sovereignty could possibly answer the purpose. on the other hand he confessed he was much discouraged by the amazing extent of country in expecting the desired blessings from any general sovereignty that could be substituted.--as to the powers of the convention, he thought the doubts started on that subject had arisen from distinctions & reasonings too subtle. a _federal_ gov^t he conceived to mean an association of independent communities into one. different confederacies have different powers, and exercise them in different ways. in some instances the powers are exercised over collective bodies; in others over individuals, as in the german diet--& among ourselves in cases of piracy. great latitude therefore must be given to the signification of the term. the plan last proposed departs itself from the _federal_ idea, as understood by some, since it is to operate eventually on individuals. he agreed moreover with the honble gentleman from v^a (m^r r.) that we owed it to our country, to do on this emergency whatever we should deem essential to its happiness. the states sent us here to provide for the exigencies of the union. to rely on & propose any plan not adequate to these exigencies, merely because it was not clearly within our powers, would be to sacrifice the means to the end. it may be said that the _states_ cannot _ratify_ a plan not within the purview of the article of the confederation providing for alterations & amendments. but may not the states themselves in which no constitutional authority equal to this purpose exists in the legislatures, have had in view a reference to the people at large. in the senate of n. york, a proviso was moved, that no act of the convention should be binding untill it should be referred to the people & ratified; and the motion was lost by a single voice only, the reason assigned ag^{st} it being, that it might possibly be found an inconvenient shackle. [88] hamilton happened to call upon madison while the latter was putting the last touches to this speech and "acknowledged its fidelity, without suggesting more than a few verbal alterations which were made."--(cf. _madison's writings_, vol. ii.). a brief of the speech from the hamilton papers is given in lodge's _works of hamilton_, i., 353, where (i., 375) yates's report also is quoted. [illustration: hamilton's principal speech. (reduced.)] the great question is what provision shall we make for the happiness of our country? he would first make a comparative examination of the two plans--prove that there were essential defects in both--and point out such changes as might render a _national one_, efficacious.--the great & essential principles necessary for the support of government are 1. an active & constant interest in supporting it. this principle does not exist in the states in favor of the federal gov^t. they have evidently in a high degree, the esprit de corps. they constantly pursue internal interests adverse to those of the whole. they have their particular debts--their particular plans of finance &c. all these when opposed to, invariably prevail over the requisitions & plans of congress. 2. the love of power. men love power. the same remarks are applicable to this principle. the states have constantly shewn a disposition rather to regain the powers delegated by them than to part with more, or to give effect to what they had parted with. the ambition of their demagogues is known to hate the controul of the gen^l government. it may be remarked too that the citizens have not that anxiety to prevent a dissolution of the gen^l gov^t as of the particular gov^{ts}. a dissolution of the latter would be fatal; of the former would still leave the purposes of gov^t attainable to a considerable degree. consider what such a state as virg^a will be in a few years, a few compared with the life of nations. how strongly will it feel its importance and self-sufficiency? 3. an habitual attachment of the people. the whole force of this tie is on the side of the state gov^t. its sovereignty is immediately before the eyes of the people: its protection is immediately enjoyed by them. from its hand distributive justice, and all those acts which familiarize & endear a gov^t to a people, are dispensed to them. 4. _force_ by which may be understood a _coercion of laws_ or _coercion of arms_. cong^s have not the former except in few cases. in particular states, this coercion is nearly sufficient; tho' he held it in most cases, not entirely so. a certain portion of military force is absolutely necessary in large communities. mass^{ts} is now feeling this necessity & making provision for it. but how can this force be exerted on the states collectively. it is impossible. it amounts to a war between the parties. foreign powers also will not be idle spectators. they will interpose, the confusion will increase, and a dissolution of the union will ensue. 5. _influence._ he did not mean corruption, but a dispensation of those regular honors & emoluments, which produce an attachment to the gov^t. almost all the weight of these is on the side of the states; and must continue so as long as the states continue to exist. all the passions then we see, of avarice, ambition, interest, which govern most individuals, and all public bodies, fall into the current of the states, and do not flow into the stream of the gen^l gov^t. the former therefore will generally be an overmatch for the gen^l gov^t and render any confederacy, in its very nature precarious. theory is in this case fully confirmed by experience. the amphyctionic council had it would seem ample powers for general purposes. it had in particular the power of fining and using force ag^{st} delinquent members. what was the consequence. their decrees were mere signals of war. the phocian war is a striking example of it. philip at length taking advantage of their disunion, and insinuating himself into their councils, made himself master of their fortunes. the german confederacy affords another lesson. the authority of charlemagne seemed to be as great as could be necessary. the great feudal chiefs however, exercising their local sovereignties, soon felt the spirit & found the means of, encroachments, which reduced the imperial authority to a nominal sovereignty. the diet has succeeded, which tho' aided by a prince at its head, of great authority independently of his imperial attributes, is a striking illustration of the weakness of confederated governments. other examples instruct us in the same truth. the swiss cantons have scarce any union at all, and have been more than once at war with one another.--how then are all these evils to be avoided? only by such a compleat sovereignty in the general goverm^t as will turn all the strong principles & passions abovementioned on its side. does the scheme of n. jersey produce this effect? does it afford any substantial remedy whatever? on the contrary it labors under great defects, and the defect of some of its provisions will destroy the efficacy of others. it gives a direct revenue to cong^s but this will not be sufficient. the balance can only be supplied by requisitions: which experience proves cannot be relied on. if states are to deliberate on the mode, they will also deliberate on the object of the supplies, and will grant or not grant as they approve or disapprove of it. the delinquency of one will invite and countenance it in others. quotas too must in the nature of things be so unequal as to produce the same evil. to what standard will you resort? land is a fallacious one. compare holland with russia; france or eng^d with other countries of europe, pen^a with n. carol^a will the relative pecuniary abilities in those instances, correspond with the relative value of land. take numbers of inhabitants for the rule and make like comparison of different countries, and you will find it to be equally unjust. the different degrees of industry and improvement in different countries render the first object a precarious measure of wealth. much depends too on _situation_. con^t n. jersey & n. carolina, not being commercial states & contributing to the wealth of the commercial ones, can never bear quotas assessed by the ordinary rules of proportion. they will & must fail in their duty, their example will be followed, and the union itself be dissolved. whence then is the national revenue to be drawn? from commerce; even from exports which notwithstanding the co[~m]on opinion are fit objects of moderate taxation, from excise, &c &c. these tho' not equal, are less unequal than quotas. another destructive ingredient in the plan, is that equality of suffrage which is so much desired by the small states. it is not in human nature that v^a & the large states should consent to it, or if they did that they sh^d long abide by it. it shocks too much all ideas of justice, and every human feeling. bad principles in a gov^t tho slow are sure in their operation, and will gradually destroy it. a doubt has been raised whether cong^s at present have a right to keep ships or troops in time of peace. he leans to the negative. mr. p'^s plan provides no remedy.--if the powers proposed were adequate, the organization of cong^s is such that they could never be properly & effectually exercised. the members of cong^s being chosen by the states & subject to recall, represent all the local prejudices. should the powers be found effectual, they will from time to time be heaped on them, till a tyrannic sway shall be established. the general power whatever be its form if it preserves itself, must swallow up the state powers. otherwise it will be swallowed up by them. it is ag^{st} all the principles of a good government to vest the requisite powers in such a body as cong^s. two sovereignties can not co-exist within the same limits. giving powers to cong^s must eventuate in a bad gov^t or in no gov^t. the plan of n. jersey therefore will not do. what then is to be done? here he was embarrassed. the extent of the country to be governed, discouraged him. the expence of a general gov^t was also formidable; unless there were such a diminution of expence on the side of the state gov^{ts} as the case would admit. if they were extinguished, he was persuaded that great oeconomy might be obtained by substituting a general gov^t. he did not mean however to shock the public opinion by proposing such a measure. on the other hand he saw no _other_ necessity for declining it. they are not necessary for any of the great purposes of commerce, revenue, or agriculture. subordinate authorities he was aware would be necessary. there must be district tribunals; corporations for local purposes. but cui bono, the vast & expensive apparatus now appertaining to the states. the only difficulty of a serious nature which occurred to him, was that of drawing representatives from the extremes to the centre of the community. what inducements can be offered that will suffice? the moderate wages for the 1^{st} branch would only be a bait to little demagogues. three dollars or thereabouts he supposed would be the utmost. the senate he feared from a similar cause, would be filled by certain undertakers who wish for particular offices under the gov^t. this view of the subject almost led him to despair that a republican gov^t could be established over so great an extent. he was sensible at the same time that it would be unwise to propose one of any other form. in his private opinion he had no scruple in declaring, supported as he was by the opinion of so many of the wise & good, that the british gov^t was the best in the world: and that he doubted much whether any thing short of it would do in america. he hoped gentlemen of different opinions would bear with him in this, and begged them to recollect the change of opinion on this subject which had taken place and was still going on. it was once thought that the power of cong^s was amply sufficient to secure the end of their institution. the error was now seen by every one. the members most tenacious of republicanism, he observed, were as loud as any in declaiming ag^{st} the vices of democracy. this progress of the public mind led him to anticipate the time, when others as well as himself would join in the praise bestowed by m^r neckar on the british constitution, namely, that it is the only gov^t in the world "which unites public strength with individual security."--in every co[~m]unity where industry is encouraged, there will be a division of it into the few & the many. hence separate interests will arise. there will be debtors & creditors &c. give all power to the many, they will oppress the few. give all power to the few, they will oppress the many. both therefore ought to have the power, that each may defend itself ag^{st} the other. to the want of this check we owe our paper money, instalment laws &c. to the proper adjustment of it the british owe the excellence of their constitution. their house of lords is a most noble institution. having nothing to hope for by a change, and a sufficient interest by means of their property, in being faithful to the national interest, they form a permanent barrier ag^{st} every pernicious innovation, whether attempted on the part of the crown or of the commons. no temporary senate will have firmness eno' to answer the purpose. the senate (of maryland) which seems to be so much appealed to, has not yet been sufficiently tried. had the people been unanimous & eager in the late appeal to them on the subject of a paper emission they would have yielded to the torrent. their acquiescing in such an appeal is a proof of it.--gentlemen differ in their opinions concerning the necessary checks, from the different estimates they form of the human passions. they suppose seven years a sufficient period to give the senate an adequate firmness, from not duly considering the amazing violence & turbulence of the democratic spirit. when a great object of gov^t is pursued, which seizes the popular passions, they spread like wild fire, and become irresistable. he appealed to the gentlemen from the n. england states whether experience had not there verified the remark.--as to the executive, it seemed to be admitted that no good one could be established on republican principles. was not this giving up the merits of the question; for can there be a good gov^t without a good executive. the english model was the only good one on this subject. the hereditary interest of the king was so interwoven with that of the nation, and his personal emoluments so great, that he was placed above the danger of being corrupted from abroad--and at the same time was both sufficiently independent and sufficiently controuled, to answer the purpose of the institution at home, one of the weak sides of republics was their being liable to foreign influence & corruption. men of little character, acquiring great power become easily the tools of intermeddling neibours. sweden was a striking instance. the french & english had each their parties during the late revolution which was effected by the predominant influence of the former.--what is the inference from all these observations? that we ought to go as far in order to attain stability and permanency, as republican principles will admit. let one branch of the legislature hold their places for life or at least during good behaviour. let the executive also be for life. he appealed to the feelings of the members present whether a term of seven years, would induce the sacrifices of private affairs which an acceptance of public trust would require, so as to ensure the services of the best citizens. on this plan we should have in the senate a permanent will, a weighty interest, which would answer essential purposes. but is this a republican gov^t, it will be asked? yes if all the magistrates are appointed, and vacancies are filled, by the people, or a process of election originating with the people. he was sensible that an executive constituted as he proposed would have in fact but little of the power and independence that might be necessary. on the other plan of appointing him for 7 years, he thought the executive ought to have but little power. he would be ambitious, with the means of making creatures, and as the object of his ambition w^d be to _prolong_ his power, it is probable that in case of a war, he would avail himself of the emergence, to evade or refuse a degradation from his place. an executive for life has not this motive for forgetting his fidelity, and will therefore be a safer depository of power. it will be objected probably, that such an executive will be an _elective monarch_, and will give birth to the tumults which characterize that form of gov^t. he w^d reply that _monarch_ is an indefinite term. it marks not either the degree or duration of power. if this executive magistrate w^d be a monarch for life--the other prop^d by the report from the co[~m]ittee of the whole, w^d be a monarch for seven years. the circumstance of being elective was also applicable to both. it had been observed by judicious writers that elective monarchies w^d be the best if they could be guarded ag^{st} the _tumults_ excited by the ambition and intrigues of competitors. he was not sure that tumults were an inseparable evil. he rather thought this character of elective monarchies had been taken rather from particular cases than from general principles. the election of roman emperors was made by the _army_. in _poland_ the election is made by great rival _princes_ with independent power, and ample means, of raising commotions. in the german empire, the appointment is made by the electors & princes, who have equal motives & means, for exciting cabals & parties. might not such a mode of election be devised among ourselves as will defend the community ag^{st} these effects in any dangerous degree? having made these observations he would read to the committee a sketch of a plan which he sh^d prefer to either of those under consideration. he was aware that it went beyond the ideas of most members. but will such a plan be adopted out of doors? in return he would ask will the people adopt the other plan? at present they will adopt neither. but he sees the union dissolving or already dissolved--he sees evils operating in the states which must soon cure the people of their fondness for democracies--he sees that a great progress has been already made & is still going on in the public mind. he thinks therefore that the people will in time be unshackled from their prejudices; and whenever that happens, they will themselves not be satisfied at stopping where the plan of m^r r. w^d place them, but be ready to go as far at least as he proposes. he did not mean to offer the paper he had sketched as a proposition to the committee. it was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose to the plan of m^r r. in the proper stages of its future discussion. he read his sketch in the words following; to wit i. the supreme legislative power of the united states of america to be vested in two different bodies of men; the one to be called the assembly, the other the senate who together shall form the legislature of the united states with power to pass all laws whatsoever subject to the negative hereafter mentioned. ii. the assembly to consist of persons elected by the people to serve for three years. iii. the senate to consist of persons elected to serve during good behaviour; their election to be made by electors chosen for that purpose by the people: in order to this the states to be divided into election districts. on the death, removal or resignation of any senator his place to be filled out of the district from which he came. iv. the supreme executive authority of the united states to be vested in a governour to be elected to serve during good behaviour--the election to be made by electors chosen by the people in the election districts aforesaid--the authorities & functions of the executive to be as follows: to have a negative on all laws about to be passed, and the execution of all laws passed; to have the direction of war when authorized or begun; to have with the advice and approbation of the senate the power of making all treaties; to have the sole appointment of the heads or chief officers of the departments of finance, war and foreign affairs; to have the nomination of all other officers (ambassadors to foreign nations included) subject to the approbation or rejection of the senate; to have the power of pardoning all offences except treason; which he shall not pardon without the approbation of the senate. v. on the death resignation or removal of the governour his authorities to be exercised by the president of the senate till a successor be appointed. vi. the senate to have the sole power of declaring war, the power of advising and approving all treaties, the power of approving or rejecting all appointments of officers except the heads or chiefs of the departments of finance war and foreign affairs. vii. the supreme judicial authority to be vested in ---judges to hold their offices during good behaviour with adequate and permanent salaries. this court to have original jurisdiction in all causes of capture, and an appellative jurisdiction in all causes in which the revenues of the general government or the citizens of foreign nations are concerned. viii. the legislature of the united states to have power to institute courts in each state for the determination of all matters of general concern. ix. the governour senators and all officers of the united states to be liable to impeachment for maland corrupt conduct; and upon conviction to be removed from office, & disqualified for holding any place of trust or profit--all impeachments to be tried by a court to consist of the chief ---or judge of the superior court of law of each state, provided such judge shall hold his place during good behavior, and have a permanent salary. x. all laws of the particular states contrary to the constitution or laws of the united states to be utterly void; and the better to prevent such laws being passed, the governour or president of each state shall be appointed by the general government and shall have a negative upon the laws about to be passed in the state of which he is the governour or president. xi. no state to have any forces land or naval; and the militia of all the states to be under the sole and exclusive direction of the united states, the officers of which to be appointed and commissioned by them. on these several articles he entered into explanatory observations corresponding with the principles of his introductory reasoning.[89] [89] copy of a paper communicated to j. m. by col. hamilton, about the close of the convention in philad^a, 1787, which he said delineated the constitution which he would have wished to be proposed by the convention. he had stated the principles of it in the course of the deliberations. the people of the united states of america do ordain & establish this constitution for the government of themselves and their posterity. article i ⧠1. the legislative power shall be vested in two distinct bodies of men, one to be called the assembly, the other the senate, subject to the negative hereinafter mentioned. ⧠2. the executive power, with the qualifications hereinafter specified, shall be vested in a president of the united states. ⧠3. the supreme judicial authority, except in the cases otherwise provided for in this constitution, shall be vested in a court to be called the supreme court, to consist of not less than six nor more than twelve judges. article ii ⧠1. the assembly shall consist of persons to be called representatives, who shall be chosen, except in the first instance, by the free male citizens & inhabitants of the several states comprehended in the union, all of whom of the age of twenty one years & upwards shall be entitled to an equal vote. ⧠2. but the first assembly shall be chosen in the manner prescribed in the last article and shall consist of one hundred members of whom n. hampshire shall have five, massachusetts thirteen, rhode island two, connecticut seven, n. york nine, n. jersey six, pennsylvania twelve, delaware two, maryland eight, virginia sixteen, n. carolina eight, s. carolina eight, georgia four. ⧠3. the legislature shall provide for the future elections of representatives, apportioning them in each state, from time to time, as nearly as may be to the number of persons described in the 4⧠of the vii article, so as that the whole number of representatives shall never be less than one hundred, nor more than ---hundred. there shall be a census taken for this purpose within three years after the first meeting of the legislature, and within every successive period of ten years. the term for which representatives shall be elected shall be determined by the legislature but shall not exceed three years. there shall be a general election at least once in three years; and the time of service of all the members in each assembly shall begin, (except in filling vacancies) on the same day, and shall always end on the same day. ⧠4. forty members shall make a house sufficient to proceed to business; but their number may be increased by the legislature, yet so as never to exceed a majority of the whole number of representatives. ⧠5. the assembly shall choose its president and other officers, shall judge of the qualifications & elections of its own members, punish them for improper conduct in their capacity of representatives not extending to life or limb; and shall exclusively possess the power of impeachment except in the case of the president of the united states; but no impeachment of a member of the senate shall be by less than two thirds of the representatives present. ⧠6. representatives may vote by proxy; but no representative present shall be proxy for more than one who is absent.[a] [a] quere, ? (to provide for distant states).--note in madison's hand. ⧠7. bills for raising revenue, and bills for appropriating monies for the support of fleets and armies, and for paying the salaries of the officers of government, shall originate in the assembly; but may be altered and amended by the senate. ⧠8. the acceptance of an office under the united states by a representative shall vacate his seat in the assembly. article iii ⧠1. the senate shall consist of persons to be chosen, except in the first instance, by electors elected for that purpose by the citizens and inhabitants of the several states comprehended in the union who shall have in their own right, or in the right of their wifes, an estate in land for not less than life, or a term of years, whereof at the time of giving their votes there shall be at least fourteen years unexpired. ⧠2. but the first senate shall be chosen in the manner prescribed in the last article and shall consist of forty members to be called senators, of whom n. hampshire shall have ---mass^{ts} ---r. island ---connecticut ---n. york ---n. jersey ---pen^a ---delaware ---mary^d ---virg^a ---n. carol. ---s. carol. ---geo. ----. ⧠3. the legislature shall provide for the future elections of senators, for which purpose the states respectively, which have more than one senator, shall be divided into convenient districts to which the senators shall be apportioned. a state having but one senator shall be itself a district. on the death, resignation or removal from office of a senator his place shall be supplied by a new election in the district from which he came. upon each election there shall be not less than six nor more than twelve electors chosen in a district. ⧠4. the number of senators shall never be less than forty, nor shall any state, if the same shall not hereafter be divided, ever have less than the number allotted to it in the second section of this article; but the legislature may increase the whole number of senators, in the same proportion to the whole number of representatives as forty is to one hundred; and such increase beyond the present number, shall be apportioned to the respective states in a ratio to the respective numbers of their representatives. ⧠5. if states shall be divided, or if a new arrangement of the boundaries of two or more states shall take place, the legislature shall apportion the number of senators (in elections succeeding such division or new arrangement) to which the constituent parts were entitled according to the change of situation, having regard to the number of persons described in the 4 â§. of the vii article. ⧠6. the senators shall hold their places during good behaviour, removable only by conviction on impeachment for some crime or misdemeanor. they shall continue to exercise their offices when impeached untill a conviction shall take place. sixteen senators attending in person shall be sufficient to make a house to transact business; but the legislature may increase this number, yet so as never to exceed a majority of the whole number of senators. the senators may vote by proxy, but no senator who is present shall be proxy for more than two who are absent. ⧠7. the senate shall choose its president and other officers; shall judge of the qualifications and elections of its members, and shall punish them for improper conduct in their capacity of senators; but such punishment shall not extend to life or limb, nor to expulsion. in the absence of their president they may choose a temporary president. the president shall only have a casting vote when the house is equally divided. ⧠8. the senate shall exclusively possess the power of declaring war. no treaty shall be made without their advice and consent; which shall also be necessary to the appointment of all officers, except such for which a different provision is made in this constitution. article iv ⧠1. the president of the united states of america, (except in the first instance) shall be elected in the manner following--the judges of the supreme court shall within sixty days after a vacancy shall happen, cause public notice to be given in each state, of such vacancy, appointing therein three several days for the several purposes following, to wit, a day for commencing the election of electors for the purposes hereinafter specified, to be called the first electors, which day shall not be less than forty, nor more than sixty days, after the day of the publication of the notice in each state--another day for the meeting of the electors not less [than] forty nor more than ninety days from the day for commencing their election--another day for the meeting of electors to be chosen by the first electors, for the purpose hereinafter specified, and to be called the second electors, which day shall be not less than forty nor more than sixty days after the day for the meeting of the first electors. ⧠2. after notice of a vacancy shall have been given there shall be chosen in each state a number of persons, as the first electors in the preceding section mentioned, equal to the whole number of the representatives and senators of such state in the legislature of the united states; which electors shall be chosen by the citizens of such state having an estate of inheritance or for three lives in land, or a clear personal estate of the value of one thousand spanish milled dollars of the present standard. ⧠3. these first electors shall meet in their respective states at the time appointed, at one place; and shall proceed to vote by ballot for a president, who shall not be one of their own number, unless the legislature upon experiment should hereafter direct otherwise. they shall cause two lists to be made of the name or names of the person or persons voted for, which they or the major part of them shall sign & certify. they shall then proceed each to nominate openly in the presence of the others, two persons as for second electors, and out of the persons who shall have the four highest numbers of nominations, they shall afterwards by ballot by plurality of votes choose two who shall be the second electors, to each of whom shall be delivered one of the lists before mentioned. these second electors shall not be any of the persons voted for as president. a copy of the same list signed and certified in like manner shall be transmitted by the first electors to the seat of the government of the united states, under a sealed cover directed to the president of the assembly, which after the meeting of the second electors shall be opened for the inspection of the two houses of the legislature. ⧠4. the second electors shall meet precisely on the day appointed and not on another day, at one place. the chief justice of the supreme court, or if there be no chief justice, the judge senior in office in such court, or if there be no one judge senior in office, some other judge of that court, by the choice of the rest of the judges or of a majority of them, shall attend at the same place and shall preside at the meeting, but shall have no vote. two thirds of the whole number of the electors shall constitute a sufficient meeting for the execution of their trust. at this meeting the lists delivered to the respective electors shall be produced and inspected, and if there be any person who has a majority of the whole number of votes given by the first electors, he shall be the president of the united states; but if there be no such person, the second electors so met shall proceed to vote, by ballot for one of the persons named in the lists who shall have the three highest numbers of the votes of the first electors; and if upon the first or any succeeding ballot on the day of their meeting, either of those persons shall have a number of votes equal to a majority of the whole number of second electors chosen, he shall be the president. but if no such choice be made on the day appointed for the meeting either by reason of the non-attendance of the second electors, or their not agreeing, or any other matter, the person having the greatest number of votes of the first electors shall be the president. ⧠5. if it should happen that the chief justice or some other judge of the supreme court should not attend in due time, the second electors shall proceed to the execution of their trust without him. ⧠6. if the judges should neglect to cause the notice required by the first section of this article to be given within the time therein limited, they may nevertheless cause it to be afterwards given; but their neglect if wilful, is hereby declared to be an offence for which they may be impeached, and if convicted they shall be punished as in other cases of conviction on impeachment. ⧠7. the legislature shall by permanent laws provide such further regulations as may be necessary for the more orderly election of the president; not contravening the provisions herein contained. ⧠8. the president before he shall enter upon the execution of his office shall take an oath or affirmation, faithfully to execute the same, and to the utmost of his judgment & power to protect the rights of the people, and preserve the constitution inviolate. this oath or affirmation shall be administered by the president of the senate for the time being in the presence of both houses of the legislature. ⧠9. the senate and the assembly shall always convene in session on the day appointed for the meeting of the second electors and shall continue sitting till the president take the oath or affirmation of office. he shall hold his place during good behavior, removeable only by conviction upon impeachment for some crime or misdemeanor. ⧠10. the president at the beginning of every meeting of the legislature as soon as they shall be ready to proceed to business, shall convene them together at the place where the senate shall sit, and shall communicate to them all such matters as may be necessary for their information, or as may require their consideration. he may by message during the session communicate all other matters which may appear to him proper. he may, whenever in his opinion the public business shall require it, convene the senate and assembly, or either of them, and may prorogue them for a time not exceeding forty days at one prorogation; and if they should disagree about their adjournment, he may adjourn them to such time as he shall think proper. he shall have a right to negative all bills, resolutions or acts of the two houses of the legislature about to be passed into laws. he shall take care that the laws be faithfully executed. he shall be the commander in chief of the army and navy of the united states and of the militia within the several states, and shall have the direction of war when commenced, but he shall not take the actual command in the field of an army without the consent of the senate and assembly. all treaties, conventions and agreements with foreign nations shall be made by him, by and with the advice and consent of the senate. he shall have the appointment of the principal or chief officer of each of the departments of war, naval affairs, finance and foreign affairs; and shall have the nomination; and by and with the consent of the senate, the appointment of all other officers to be appointed under the authority of the united states, except such for whom different provision is made by this constitution; and provided that this shall not be construed to prevent the legislature, from appointing by name, in their laws, persons to special and particular trusts created in such laws; nor shall be construed to prevent principals in offices merely ministerial, from constituting deputies.--in the recess of the senate he may fill vacancies in offices by appointments to continue in force until the end of the next session of the senate, and he shall commission all officers. he shall have power to pardon all offences except treason, for which he may grant reprieves, untill the opinion of the senate & assembly can be had, and with their concurrence may pardon the same. ⧠11. he shall receive a fixed compensation for his services to be paid to him at stated times, and not to be increased nor diminished during his continuance in office. ⧠12. if he depart out of the united states without the consent of the senate and assembly, he shall thereby abdicate his office. ⧠13. he may be impeached for any crime or misdemeanor by the two houses of the legislature, two thirds of each house concurring, and if convicted shall be removed from office. he may be afterwards tried & punished in the ordinary course of law. his impeachment shall operate as a suspension from office until the determination thereof. ⧠14. the president of the senate shall be vice president of the united states. on the death, resignation, impeachment, removal from office, or absence from the united states, of the president thereof, the vice president shall exercise all the powers by this constitution vested in the president, until another shall be appointed, or untill he shall return within the united states, if his absence was with the consent of the senate and assembly. article v ⧠1. there shall be a chief justice of the supreme court, who together with the other judges thereof, shall hold the office during good behaviour, removable only by conviction on impeachment for some crime or misdemeanor. each judge shall have a competent salary to be paid to him at stated times, and not to be diminished during his continuance in office. the supreme court shall have original jurisdiction in all causes in which the united states shall be a party, in all controversies between the united states, and a particular state, or between two or more states, except such as relate to a claim of territory between the united states, and one or more states, which shall be determined in the mode prescribed in the vi article; in all cases affecting foreign ministers, consuls and agents; and an appellate jurisdiction both as to law and fact in all cases which shall concern the citizens of foreign nations, in all questions between the citizens of different states, and in all others in which the fundamental rights of this constitution are involved, subject to such exceptions as are herein contained and to such regulations as the legislature shall provide. the judges of all courts which may be constituted by the legislature shall also hold their places during good behaviour, removeable only by conviction on impeachment for some crime or misdemeanor, and shall have competent salaries to be paid at stated times and not to be diminished during their continuance in office; but nothing herein contained shall be construed to prevent the legislature from abolishing such courts themselves. all crimes, except upon impeachment, shall be tried by a jury of twelve men; and if they shall have been committed within any state, shall be tried within such state; and all civil causes arising under this constitution of the like kind with those which have been heretofore triable by jury in the respective states, shall in like manner be tried by jury; unless in special cases the legislature shall think proper to make different provision, to which provision the concurrence of two thirds of both houses shall be necessary. ⧠2. impeachments of the president and vice president of the u. states, members of the senate, the governours and presidents of the several states, the principal or chief officers of the departments enumerated in the 10 â§. of the 4^{th} article, ambassadors and other like public ministers, the judges of the supreme court, generals, and admirals of the navy shall be tried by a court to consist of the judges of the supreme court, and the chief justice or first or senior judge of the superior court of law in each state, of whom twelve shall constitute a court. a majority of the judges present may convict. all other persons shall be tried on impeachment by a court to consist of the judges of the supreme court and six senators drawn by lot, a majority of whom may convict. impeachments shall clearly specify the particular offence for which the party accused is to be tried, and judgment on conviction upon the trial thereof shall be either removal from office singly, or removal from office and disqualification for holding any future office or place of trust; but no judgment on impeachment shall prevent prosecution and punishment in the ordinary course of law; provided that no judge concerned in such conviction shall sit as judge on the second trial. the legislature may remove the disabilities incurred by conviction on impeachment. article vi controversies about the right of territory between the united states and particular states shall be determined by a court to be constituted in manner following. the state or states claiming in opposition to the united states as parties shall nominate a number of persons, equal to double the number of the judges of the supreme court for the time being, of whom none shall be citizens by birth of the states which are parties, nor inhabitants thereof when nominated, and of whom not more than two shall have their actual residence in one state. out of the persons so nominated the senate shall elect one half, who together with the judges of the supreme court, shall form the court. two thirds of the whole number may hear and determine the controversy, by plurality of voices. the states concerned may at their option claim a decision by the supreme court only. all of the members of the court hereby instituted shall, prior to the hearing of the cause take an oath impartially and according to the best of their judgments and consciences, to hear and determine the controversy. article vii ⧠1. the legislature of the united states shall have power to pass all laws which they shall judge necessary to the common defence and general welfare of the union: but no bill, resolution, or act of the senate and assembly shall have the force of a law until it shall have received the assent of the president, or of the vice-president when exercising the powers of the president; and if such assent shall not have been given within ten days, after such bill, resolution or other act shall have been presented to him for that purpose, the same shall not be a law. no bill, resolution or other act not assented to shall be revived in the same session of the legislature. the mode of signifying such assent, shall be by signing the bill act of [r] resolution, and returning it so signed to either house of the legislature. ⧠2. the enacting stile of all laws shall be "be it enacted by the people of the united states of america." ⧠3. no bill of attainder shall be passed, nor any ex post facto law; nor shall any title of nobility be granted by the united states, or by either of them; nor shall any person holding an office or place of trust under the united states without the permission of the legislature accept any present, emolument office or title from a foreign prince or state. nor shall any religious sect, or denomination, or religious test for any office or place, be ever established by law. ⧠4. taxes on lands, houses and other real estate, and capitation taxes shall be proportioned in each state by the whole number of free persons, except indians not taxed, and by three fifths of all other persons. ⧠5. the two houses of the legislature may by joint ballot appoint a treasurer of the united states. neither house in the session of both houses, without the consent of the other shall adjourn for more than three days at a time. the senators and representatives, in attending, going to and coming from the session of their respective houses shall be privileged from arrest, except for crimes and breaches of the peace. the place of meeting shall always be at the seat of government which shall be fixed by law. ⧠6. the laws of the united states, and the treaties which have been made under the articles of the confederation, and which shall be made under this constitution shall be the supreme law of the land, and shall be so construed by the courts of the several states. ⧠7. the legislature shall convene at least once in each year, which unless otherwise provided for by law, shall be on the first monday in december. ⧠8. the members of the two houses of the legislature shall receive a reasonable compensation for their services, to be paid out of the treasury of the united states and ascertained by law. the law for making such provision shall be passed with the concurrence of the first assembly and shall extend to succeeding assemblies; and no succeeding assembly shall concur in an alteration of such provision, so as to increase its own compensation; but there shall be always a law in existence for making such provision. article viii ⧠1. the governour or president of each state shall be appointed under the authority of the united states, and shall have a right to negative all laws about to be passed in the state of which he shall be governour or president, subject to such qualifications and regulations, as the legislature of the united states shall prescribe. he shall in other respects have the same powers only which the constitution of the state does or shall allow to its governour or president, except as to the appointment of officers of the militia. ⧠2. each governour or president of a state shall hold his office until a successor be actually appointed, unless he die, or resign or be removed from office by conviction on impeachment. there shall be no appointment of such governor or president in the recess of the senate. the governours and presidents of the several states at the time of the ratification of this constitution shall continue in office in the same manner and with the same powers as if they had been appointed pursuant to the first section of this article. the officers of the militia in the several states may be appointed under the authority of the u. states; the legislature whereof may authorize the governors or presidents of states to make such appointments with such restrictions as they shall think proper. article ix ⧠1. no person shall be eligible to the office of president of the united states unless he be now a citizen of one of the states, or hereafter be born a citizen of the united states. ⧠2. no person shall be eligible as a senator or representative unless at the time of his election he be a citizen and inhabitant of the state in which he is chosen; provided that he shall not be deemed to be disqualified by a temporary absence from the state. ⧠3. no person entitled by this constitution to elect or to be elected president of the united states, or a senator or representative in the legislature thereof, shall be disqualified but by the conviction of some offence for which the law shall have previously ordained the punishment of disqualification. but the legislature may by law provide that persons holding offices under the united states or either of them shall not be eligible to a place in the assembly or senate, and shall be during their continuance in office suspended from sitting in the senate. ⧠4. no person having an office or place of trust under the united states shall without permission of the legislature accept any present emolument office or title from any foreign prince or state. ⧠5. the citizens of each state shall be entitled to the rights privileges and immunities of citizens in every other state; and full faith and credit shall be given in each state to the public acts, records and judicial proceedings of another. ⧠6. fugitives from justice from one state who shall be found in another shall be delivered up on the application of the state from which they fled. ⧠7. no new state shall be erected within the limits of another, or by the junction of two or more states, without the concurrent consent of the legislatures of the united states and of the states concerned. the legislature of the united states may admit new states into the union. ⧠8. the united states are hereby declared to be bound to guarantee to each state a republican form of government, and to protect each state as well against domestic violence as foreign invasion. ⧠9. all treaties, contracts and engagements of the united states of america under the articles of confederation and perpetual union, shall have equal validity under this constitution. ⧠10. no state shall enter into a treaty, alliance, or contract with another, or with a foreign power without the consent of the united states. ⧠11. the members of the legislature of the united states and of each state, and all officers executive & judicial of the one and of the other shall take an oath or affirmation to support the constitution of the united states. ⧠12. this constitution may receive such alterations and amendments as may be proposed by the legislature of the united states, with the concurrence of two thirds of the members of both houses, and ratified by the legislatures of, or by conventions of deputies chosen by the people in, two thirds of the states composing the union. article x this constitution shall be submitted to the consideration of conventions in the several states, the members whereof shall be chosen by the people of such states respectively under the direction of their respective legislatures. each convention which shall ratify the same, shall appoint the first representatives and senators from such state according to the rule prescribed in the ---⧠of the ---article. the representatives so appointed shall continue in office for one year only. each convention so ratifying shall give notice thereof to the congress of the united states, transmitting at the same time a list of the representatives and senators chosen. when the constitution shall have been duly ratified, congress shall give notice of a day and place for the meeting of the senators and representatives from the several states; and when these or a majority of them shall have assembled according to such notice, they shall by joint ballot, by plurality of votes, elect a president of the united states; and the constitution thus organized shall be carried into effect.--_mad. mss._ "col: hamilton did not propose in the convention any plan of a constitution. he had sketched an outline which he read as part of a speech; observing that he did not mean it as a proposition, but only to give a more correct view of his ideas. "mr. patterson regularly proposed a plan which was discussed & voted on."--madison to john quincy adams, montpellier, nov. 2, 1818, _dept. of state mss._, miscellaneous letters. committee rose & the house adjourned. tuesday june 19^{th} in committee of whole on the propositions of m^r patterson,--[90] [90] this was the last session of the convention in committee of the whole. the substitute offered yesterday by m^r dickenson being rejected by a vote now taken on it; con. n. y. n. j. del. ay. mass. p^a v. n. c. s. c. geo. no. mary^d divided m^r patterson's plan was again at large before the committee. m^r madison. much stress has been laid by some gentlemen on the want of power in the convention to propose any other than a _federal_ plan. to what had been answered by others, he would only add, that neither of the characteristics attached to a _federal_ plan would support this objection. one characteristic, was that in a _federal_ government, the power was exercised not on the people individually; but on the people _collectively_, on the _states_. yet in some instances as in piracies, captures &c. the existing confederacy, and in many instances the amendments to it proposed by m^r patterson, must operate immediately on individuals. the other characteristic was, that a _federal_ gov^t derived its appointments not immediately from the people, but from the states which they respectively composed. here too were facts on the other side. in two of the states, connect^t & rh. island, the delegates to cong^s were chosen, not by the legislatures, but by the people at large; and the plan of m^r p. intended no change in this particular. it had been alledged (by m^r patterson), that the confederation having been formed by unanimous consent, could be dissolved by unanimous consent only. does this doctrine result from the nature of compacts? does it arise from any particular stipulation in the articles of confederation? if we consider the federal union as analagous to the fundamental compact by which individuals compose one society, and which must in its theoretic origin at least, have been the unanimous act of the component members, it cannot be said that no dissolution of the compact can be effected without unanimous consent. a breach of the fundamental principles of the compact by a part of the society would certainly absolve the other part from their obligations to it. if the breach of _any_ article by _any_ of the parties, does not set the others at liberty, it is because, the contrary is _implied_ in the compact itself, and particularly by that law of it, which gives an indefinite authority to the majority to bind the whole in all cases. this latter circumstance shews that we are not to consider the federal union as analagous to the social compact of individuals: for if it were so, a majority would have a right to bind the rest, and even to form a new constitution for the whole, which the gentl^n from n. jersey would be among the last to admit. if we consider the federal union as analagous not to the social compacts among individual men: but to the conventions among individual states, what is the doctrine resulting from these conventions? clearly, according to the expositors of the law of nations, that a breach of any one article by any one party, leaves all the other parties at liberty, to consider the whole convention as dissolved, unless they choose rather to compel the delinquent party to repair the breach. in some treaties indeed it is expressly stipulated that a violation of particular articles shall not have this consequence, and even that particular articles shall remain in force during war, which in general is understood to dissolve all subsisting treaties. but are there any exceptions of this sort to the articles of confederation? so far from it that there is not even an express stipulation that force shall be used to compell an offending member of the union to discharge its duty. he observed that the violations of the federal articles had been numerous & notorious. among the most notorious was an act of n. jersey herself; by which she _expressly refused_ to comply with a constitutional requisition of cong^s and yielded no farther to the expostulations of their deputies, than barely to rescind her vote of refusal without passing any positive act of compliance. he did not wish to draw any rigid inferences from these observations. he thought it proper however that the true nature of the existing confederacy should be investigated, and he was not anxious to strengthen the foundations on which it now stands. proceeding to the consideration of m^r patterson's plan, he stated the object of a proper plan to be twofold. 1. to preserve the union. 2. to provide a governm^t that will remedy the evils felt by the states both in their united and individual capacities. examine m^r p'^s plan, & say whether it promises satisfaction in these respects. 1. will it prevent the violations of the law of nations & of treaties which if not prevented must involve us in the calamities of foreign wars? the tendency of the states to these violations has been manifested in sundry instances. the files of cong^s contain complaints already, from almost every nation with which treaties have been formed. hitherto indulgence has been shewn to us. this cannot be the permanent disposition of foreign nations. a rupture with other powers is among the greatest of national calamities. it ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the whole. the existing confederacy does not sufficiently provide against this evil. the proposed amendment to it does not supply the omission. it leaves the will of the states as uncontrouled as ever. 2. will it prevent encroachments on the federal authority? a tendency to such encroachments has been sufficiently exemplified, among ourselves, as well as in every other confederated republic antient and modern. by the federal articles, transactions with the indians appertain to cong^s. yet in several instances, the states have entered into treaties & wars with them. in like manner no two or more states can form among themselves any treaties &c. without the consent of cong^s. yet virg^a & mary^d in one instance--pen^a & n. jersey in another, have entered into compacts, without previous application or subsequent apology. no state again can of right raise troops in time of peace without the like consent. of all cases of the league, this seems to require the most scrupulous observance. has not mass^{ts}, notwithstanding, the most powerful member of the union, already raised a body of troops? is she not now augmenting them, without having even deigned to apprise cong^s of her intention? in fine--have we not seen the public land dealt out to con^t to bribe her acquiescence in the decree constitutionally awarded ag^{st} her claim on the territory of pen^a: for no other possible motive can account for the policy of cong^s in that measure?--if we recur to the examples of other confederacies, we shall find in all of them the same tendency of the parts to encroach on the authority of the whole. he then reviewed the amphyctionic & achã¦an confederacies among the antients, and the helvetic, germanic & belgic among the moderns, tracing their analogy to the u. states in the constitution and extent of their federal authorities--in the tendency of the particular members to usurp on these authorities, and to bring confusion & ruin on the whole.--he observed that the plan of mr. pat[er]son, besides omitting a controul over the states as a general defence of the federal prerogatives was particularly defective in two of its provisions. 1. its ratification was not to be by the people at large, but by the _legislatures_. it could not therefore render the acts of cong^s in pursuance of their powers, even legally _paramount_ to the acts of the states. 2. it gave to the federal tribunal an appellate jurisdiction only--even in the criminal cases enumerated. the necessity of any such provision supposed a danger of undue acquittals in the state tribunals, of what avail c^d an appellate tribunal be, after an acquittal? besides in most if not all of the states, the executives have by their respective _constitutions_, the right of pard^g. how could this be taken from them by a _legislative_ ratification only? 3. will it prevent trespasses of the states on each other? of these enough has been already seen. he instanced acts of virg^a & maryland which gave a preference to their own citizens in cases where the citizens of other states are entitled to equality of privileges by the articles of confederation. he considered the emissions of paper money & other kindred measures as also aggressions. the states relatively to one another being each of them either debtor or creditor; the creditor states must suffer unjustly from every emission by the debtor states. we have seen retaliating acts on the subject which threatened danger not to the harmony only, but the tranquillity of the union. the plan of m^r paterson, not giving even a negative on the acts of the states, left them as much at liberty as ever to execute their unrighteous projects ag^{st} each other. 4. will it secure the internal tranquillity of the states themselves? the insurrections in mass^{ts} admonished all the states of the danger to which they were exposed. yet the plan of m^r p. contained no provisions for supplying the defect of the confederation on this point. according to the republican theory indeed, right & power being both vested in the majority, are held to be synonymous. according to fact & experience, a minority may in an appeal to force be an overmatch for the majority. 1. if the minority happen to include all such as possess the skill & habits of military life, with such as possess the great pecuniary resources, one third may conquer the remaining two thirds. 2. one third of those who participate in the choice of rulers may be rendered a majority by the accession of those whose poverty disqualifies them from a suffrage, & who for obvious reasons may be more ready to join the standard of sedition than that of established government. 3. where slavery exists, the republican theory becomes still more fallacious. 5. will it secure a good internal legislation & administration to the particular states? in developing the evils which vitiate the political system of the u. s. it is proper to take into view those which prevail within the states individually as well as those which affect them collectively: since the former indirectly affect the whole; and there is great reason to believe that the pressure of them had a full share in the motives which produced the present convention. under this head he enumerated and animadverted on 1. the multiplicity of the laws passed by the several states. 2. the mutability of their laws. 3. the injustice of them. 4. the impotence of them: observing that m^r patterson's plan contained no remedy for this dreadful class of evils, and could not therefore be received as an adequate provision for the exigencies of the community. 6. will it secure the union ag^{st} the influence of foreign powers over its members. he pretended not to say that any such influence had yet been tried: but it was naturally to be expected that occasions would produce it. as lessons which claimed particular attention, he cited the intrigues practised among the amphyctionic confederates first by the kings of persia, and afterwards fatally by philip of macedon: among the achã¦ans, first by macedon & afterwards no less fatally by rome: among the swiss by austria, france & the lesser neighbouring powers: among the members of the germanic body by france, england, spain & russia--and in the belgic republic, by all the great neighbouring powers. the plan of m^r patterson, not giving to the general councils any negative on the will of the particular states, left the door open for the like pernicious machinations among ourselves. 7. he begged the smaller states which were most attached to m^r patterson's plan to consider the situation in which it would leave them. in the first place they would continue to bear the whole expence of maintaining their delegates in congress. it ought not to be said that if they were willing to bear this burthen, no others had a right to complain. as far as it led the small states to forbear keeping up a representation, by which the public business was delayed, it was evidently a matter of common concern. an examination of the minutes of congress would satisfy every one that the public business had been frequently delayed by this cause; and that the states most frequently unrepresented in cong^s were not the larger states. he reminded the convention of another consequence of leaving on a small state the burden of maintaining a representation in cong^s. during a considerable period of the war, one of the representatives of delaware, in whom alone before the signing of the confederation the entire vote of that state and after that event one half of its vote, frequently resided, was a citizen & resident of pen^a and held an office in his own state incompatible with an appointment from it to cong^s. during another period, the same state was represented by three delegates two of whom were citizens of penn^a and the third a citizen of new jersey. these expedients must have been intended to avoid the burden of supporting delegates from their own state. but whatever might have been y^e cause, was not in effect the vote of one state doubled, and the influence of another increased by it? in the 2^d place the coercion, on which the efficacy of the plan depends, can never be exerted but on themselves. the larger states will be impregnable, the smaller only can feel the vengeance of it. he illustrated the position by the history of the amphyctionic confederates: and the ban of the german empire. it was the cobweb w^{ch} could entangle the weak, but would be the sport of the strong. 8. he begged them to consider the situation in which they would remain in case their pertinacious adherence to an inadmissible plan, should prevent the adoption of any plan. the contemplation of such an event was painful; but it would be prudent to submit to the task of examining it at a distance, that the means of escaping it might be the more readily embraced. let the union of the states be dissolved, and one of two consequences must happen. either the states must remain individually independent & sovereign; or two or more confederacies must be formed among them. in the first event would the small states be more secure ag^{st} the ambition & power of their larger neighbours, than they would be under a general government pervading with equal energy every part of the empire, and having an equal interest in protecting every part ag^{st} every other part? in the second, can the smaller expect that their larger neighbours would confederate with them on the principle of the present confederacy, which gives to each member, an equal suffrage; or that they would exact less severe concessions from the smaller states, than are proposed in the scheme of m^r randolph? the great difficulty lies in the affair of representation; and if this could be adjusted, all others would be surmountable. it was admitted by both the gentlemen from n. jersey, (m^r brearly and m^r patterson) that it would not be _just to allow virg^a_ which was 16 times as large as delaware an equal vote only. their language was that it would not be _safe for delaware_ to allow virg^a 16 times as many votes. the expedient proposed by them was that all the states should be thrown into one mass and a new partition be made into 13 equal parts. would such a scheme be practicable? the dissimilarities existing in the rules of property, as well as in the manners, habits and prejudices of the different states, amounted to a prohibition of the attempt. it had been found impossible for the power of one of the most absolute princes in europe (k. of france) directed by the wisdom of one of the most enlightened and patriotic ministers (m^r neckar) that any age has produced, to equalize in some points only the different usages & regulations of the different provinces. but admitting a general amalgamation and repartition of the states to be practicable, and the danger apprehended by the smaller states from a proportional representation to be real; would not a particular and voluntary coalition of these with their neighbours, be less inconvenient to the whole community, and equally effectual for their own safety. if n. jersey or delaware conceived that an advantage would accrue to them from an equalization of the states, in which case they would necessarily form a junction with their neighbours, why might not this end be attained by leaving them at liberty by the constitution to form such a junction whenever they pleased? and why should they wish to obtrude a like arrangement on all the states, when it was, to say the least, extremely difficult, would be obnoxious to many of the states, and when neither the inconveniency, nor the benefit of the expedient to themselves, would be lessened by confining it to themselves.--the prospect of many new states to the westward was another consideration of importance. if they should come into the union at all, they would come when they contained but few inhabitants. if they sh^d be entitled to vote according to their proportions of inhabitants, all would be right & safe. let them have an equal vote, and a more objectionable minority than ever might give law to the whole.[91] [91] "mr. dickinson supposed that there were good regulations in both. let us therefore contrast the one with the other, and consolidate such parts of them as the committee approve."--yates, _secret proceedings_, etc., 140. on a question for postponing generally the 1^{st} proposition of m^r patterson's plan, it was agreed to: n. y. & n. j. only being no. on the question moved by m^r king whether the co[~m]itee should rise & m^r randolph's proposition be reported without alteration, which was in fact a question whether m^r r's should be adhered to as preferable to those of m^r patterson; mass^{ts} ay. con^t ay. n. y. no. n. j. no. p^a ay. del. no. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. copy of the resol^{ns} of mr. r. as altered in com^e and reported to the house. (of m^r randolph's plan as reported from the co[~m]ittee)--the 1. propos: "that a nat^l gov^t ought to be established consisting &c." being taken up in the house. m^r wilson observed that by a nat^l gov^t he did not mean one that would swallow up the state gov^{ts} as seemed to be wished by some gentlemen. he was tenacious of the idea of preserving the latter. he thought, contrary to the opinion of (col. hamilton) that they might not only subsist but subsist on friendly terms with the former. they were absolutely necessary for certain purposes which the former could not reach. all large governments must be subdivided into lesser jurisdictions. as examples he mentioned persia, rome, and particularly the divisions & subdivisions of england by alfred. col. hamilton coincided with the proposition as it stood in the report. he had not been understood yesterday. by an abolition of the states, he meant that no boundary could be drawn between the national & state legislatures; that the former must therefore have indefinite authority. if it were limited at all, the rivalship of the states would gradually subvert it. even as corporations the extent of some of them as v^a mass^{ts} &c. would be formidable. _as states_, he thought they ought to be abolished. but he admitted the necessity of leaving in them, subordinate jurisdictions. the examples of persia & the roman empire, cited by (m^r wilson) were he thought in favor of his doctrine: the great powers delegated to the satraps & proconsuls having frequently produced revolts, and schemes of independence. m^r king wished as every thing depended on this proposition, that no objections might be improperly indulged ag^{st} the phraseology of it. he conceived that the import of the term "states" "sovereignty" "_national_" "federal," had been often used & applied in the discussions inaccurately & delusively. the states were not "sovereigns" in the sense contended for by some. they did not possess the peculiar features of sovereignty, they could not make war, nor peace, nor alliances nor treaties. considering them as political beings, they were dumb, for they could not speak to any for[~e]gn sovereign whatever. they were deaf, for they could not hear any propositions from such sovereign. they had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war. on the other side, if the union of the states comprises the idea of a confederation, it comprises that also of consolidation. a union of the states is a union of the men composing them, from whence a _national_ character results to the whole. cong^s can act alone without the states--they can act & their acts will be binding ag^{st} the instructions of the states. if they declare war: war is de jure declared--captures made in pursuance of it are lawful--no acts of the states can vary the situation, or prevent the judicial consequences. if the states therefore retained some portion of their sovereignty, they had certainly divested themselves of essential portions of it. if they formed a confederacy in some respects--they formed a nation in others. the convention could clearly deliberate on & propose any alterations that cong^s could have done under y^e federal articles, and could not cong^s propose by virtue of the last article, a change in any article whatever; and as well that relating to the equality of suffrage, as any other. he made these remarks to obviate some scruples which had been expressed. he doubted much the practicability of annihilating the states; but thought that much of their power ought to be taken from them.[92] [92] king, in his notes, gives a rã©sumã© of his speech. it illustrates the accuracy of madison's reporting: "answer (r. king) the states under the confed. are not sovereign states they can do no act but such as are of a subordinate nature or such as terminate in themselves--and even these are restrained--coinage, p. office &c. they are wholly incompetent to the exercise of any of the gt. & distinguishing acts of sovereignty--they can neither make nor receive (embassies) to or from any other sovereign--they have not the powers of injuring another or of defending themselves from an injury offered from one another--they are deaf, dumb and impotent--these faculties are yielded up and the u. s. in c. assd. hold and possess them, and they alone can exercise them--they are so far out of the controul of the separate states yt. if every state in the union was to instruct yr. deleg., and those delegates within ye powers of the arts. of union shd. do an act in violation of their instructions it wd. nevertheless be valid. if they declared a war, any giving aid or comfort to the enemy wd. be treason; if peace, any capture on the high seas wd. be piracy. this remark proves yt. the states are now subordinate corporations or societies and not sovereigns--these imperfect states are the confederates and they are the electors of the magistrates who exercise the national sovereignty. the articles of confedr. and perpetual union, are partly federal & partly of the nature of a constitution or form of govt. arising from and applying to the citizens of the u. s. & not from the individual states. "the only criterion of determining what is federal & what is national is this, those acts which are for the government of the states only are purely federal, those which are for the government of the citizens of the individual states are national and not federal. "if then the articles of confedr. & perpetual union have this twofold capacity, and if they provide for an alteration in a certain mode, why may not they be so altered as that the federal article may be changed to a national one, and the national to a federal? i see no argument that can be objected to the authority. the 5th article regulates the influence of the several states and makes them equal--does not the confed. authorize this alteration, that instead of this equality, one state may have double the influence of another--i conceive it does--and so of every article except that wh. destroys the idea of a confedy. i think it may be proved that every article may be totally altered provided you have one guarantying to each state the right of regulating its private & internal affairs in the manner of a subordinate corporation. "but admitting that the arts, of confed. & perpet. union, or the powers of the legis. did not extend to the proposed reform; yet the public deputations & the public danger require it--the system proposed to be adopted is no scheme of a day, calculated to postpone the hour of danger, & thus leave it to fall with double ruin on our successors--it is no crude and undigested plan; the child of narrow and unextensive views, brought forward under the auspices of cowardice & irresolution--it is a measure of decision, it is the foundation of freedom & of national glory. it will draw on itself and be able to support the severest scrutiny & examination. it is no idle experiment, no romantic speculation--the measure forces itself upon wise men, and if they have not firmness to look it in the face and protect it--farewell to the freedom of our government--our military glory will be tarnished and our boasts of freedom will be the scorn of the enemies of liberty."--_life and correspondence of rufus king_, i., 602, n. m^r martin.[93] said he considered that the separation from g. b. placed the 13 states in a state of nature towards each other; that they would have remained in that state till this time, but for the confederation; that they entered into the confederation on the footing of equality; that they met now to amend it on the same footing; and that he could never accede to a plan that would introduce an inequality and lay 10 states at the mercy of v^a mass^{ts} and penn^a. [93] "mr. martin was educated for the bar, and is attorney general for the state of maryland. this gentleman possesses a good deal of information, but he has a very bad delivery, and so extremely prolix, that he never speaks without tiring the patience of all who hear him. he is about 34 years of age."--pierce's notes, _am. hist. rev._, iii., 330. m^r wilson, could not admit the doctrine that when the colonies became independent of g. britain, they became independent also of each other. he read the declaration of independence, observing thereon that the _united colonies_ were declared to be free & independent states; and inferring that they were independent, not _individually_ but _unitedly_ and that they were confederated as they were independent, states. col. hamilton assented to the doctrine of m^r wilson. he denied the doctrine that the states were thrown into a state of nature. he was not yet prepared to admit the doctrine that the confederacy, could be dissolved by partial infractions of it. he admitted that the states met now on an equal footing but could see no inference from that against concerting a change of the system in this particular. he took this occasion of observing for the purpose of appeasing the fears of the small states, that two circumstances would render them secure under a national gov^t in which they might lose the equality of rank they now held: one was the local situation of the 3 largest states virg^a mass^{ts} & p^a. they were separated from each other by distance of place, and equally so, by all the peculiarities which distinguish the interests of one state from those of another. no combination therefore could be dreaded. in the second place, as there was a gradation in the states from v^a the largest down to delaware the smallest, it would always happen that ambitious combinations among a few states might & w^d be counteracted by defensive combinations of greater extent among the rest. no combination has been seen among the large counties merely as such, ag^{st} lesser counties. the more close the union of the states, and the more compleat the authority of the whole: the less opportunity will be allowed to the stronger states to injure the weaker. adj^d. wednesday june 20. 1897. in convention. m^r william blount from n. carolina took his seat. 1^{st} propos: of the report of com^e of the whole, before the house. m^r elseworth 2^{ded} by m^r gorham, moves to alter it so as to run "that the government of the united states ought to consist of a supreme legislative, executive and judiciary." this alteration he said would drop the word _national_, and retain the proper title "the united states." he could not admit the doctrine that a breach of any of the federal articles could dissolve the whole. it would be highly dangerous not to consider the confederation as still subsisting. he wished also the plan of the convention to go forth as an amendment of the articles of the confederation, since under this idea the authority of the legislatures could ratify it. if they are unwilling, the people will be so too. if the plan goes forth to the people for ratification several succeeding conventions within the states would be unavoidable. he did not like these conventions. they were better fitted to pull down than to build up constitutions. m^r randolph. did not object to the change of expression, but apprised the gentleman who wished for it that he did not admit it for the reasons assigned; particularly that of getting rid of a reference to the people for ratification. the motion of m^r elsew^{th} was acquiesced in nem: con: the 2^d resol: "that the national legislature ought to consist of two branches" taken up, the word "national" struck out as of course. _m^r lansing._ observed that the true question here was, whether the convention would adhere to or depart from the foundation of the present confederacy; and moved instead of the 2^d resolution, "that the powers of legislation be vested in the u. states in congress." he had already assigned two reasons ag^{st} such an innovation as was proposed: 1. the want of competent powers in the convention.--2. the state of the public mind. it had been observed by (m^r madison) in discussing the first point, that in two states the delegates to cong^s were chosen by the people. notwithstanding the first appearance of this remark, it had in fact no weight, as the delegates however chosen, did not represent the people merely as so many individuals; but as forming a sovereign state. (mr. randolph) put it, he said, on its true footing namely that the public safety superseded the scruple arising from the review of our powers. but in order to feel the force of this consideration, the same impression must be had of the public danger. he had not himself the same impression, and could not therefore dismiss his scruple. (m^r wilson) contended that as the convention were only to recommend, they might recommend what they pleased. he differed much from him. any act whatever of so respectable a body must have a great effect, and if it does not succeed, will be a source of great dissentions. he admitted that there was no certain criterion of the public mind on the subject. he therefore recurred to the evidence of it given by the opposition in the states to the scheme of an impost. it could not be expected that those possessing sovereignty could ever voluntarily part with it. it was not to be expected from any one state, much less from thirteen. he proceeded to make some observations on the plan itself and the argum^{ts} urged in support of it. the point of representation could receive no elucidation from the case of england. the corruption of the boroughs did not proceed from their comparative smallness; but from the actual fewness of the inhabitants, some of them not having more than one or two. a great inequality existed in the counties of england. yet the like complaint of peculiar corruption in the small ones had not been made. it had been said that congress represent the state prejudices: will not any other body whether chosen by the legislatures or people of the states, also represent their prejudices? it had been asserted by his colleague (col. hamilton) that there was no coincidence of interests among the large states that ought to excite fears of oppression in the smaller. if it were true that such a uniformity of interests existed among the states, there was equal safety for all of them, whether the representation remained as heretofore, or were proportioned as now proposed. it is proposed that the gen^l legislature shall have a negative on the laws of the states. is it conceivable that there will be leisure for such a task? there will on the most moderate calculation, be as many acts sent up from the states as there are days in the year. will the members of the general legislature be competent judges? will a gentleman from georgia be a judge of the expediency of a law which is to operate in n. hampshire. such a negative would be more injurious than that of great britain heretofore was. it is said that the national gov^t must have the influence arising from the grant of offices and honors. in order to render such a government effectual he believed such an influence to be necessary. but if the states will not agree to it, it is in vain, worse than in vain to make the proposition. if this influence is to be attained, the states must be entirely abolished. will any one say this would ever be agreed to? he doubted whether any gen^l government equally beneficial to all can be attained. that now under consideration he is sure, must be utterly unattainable. he had another objection. the system was too novel & complex. no man could foresee what its operation will be either with respect to the gen^l gov^t or the state gov^{ts}. one or other it has been surmised must absorb the whole. col. mason. did not expect this point would have been reagitated. the essential differences between the two plans, had been clearly stated. the principal objections ag^{st} that of m^r r. were the _want of power_ & the _want of practicability_. there can be no weight in the first as the fiat is not to be _here_, but in the people. he thought with his colleague m^r r. that there were besides certain crisises, in which all the ordinary cautions yielded to public necessity. he gave as an example, the eventual treaty with g. b. in forming which the co[~m]^{srs} of the u. s. had boldly disregarded the improvident shackles of cong^s had given to their country an honorable & happy peace, and instead of being censured for the transgression of their powers, had raised to themselves a monument more durable than brass. the _impracticability_ of gaining the public concurrence he thought was still more groundless. (m^r lansing) had cited the attempts of congress to gain an enlargement of their powers, and had inferred from the miscarriage of these attempts, the hopelessness of the plan which he (m^r l) opposed. he thought a very different inference ought to have been drawn; viz that the plan which (m^r l) espoused, and which proposed to augment the powers of congress, never could be expected to succeed. he meant not to throw any reflections on cong^s as a body, much less on any particular members of it. he meant however to speak his sentiments without reserve on this subject; it was a privilege of age, and perhaps the only compensation which nature had given for, the privation of so many other enjoyments: and he should not scruple to exercise it freely. is it to be thought that the people of america, so watchful over their interests; so jealous of their liberties, will give up their all, will surrender both the sword and the purse, to the same body, and that too not chosen immediately by themselves? they never will. they never ought. will they trust such a body, with the regulation of their trade, with the regulation of their taxes; with all the other great powers, which are in contemplation? will they give unbounded confidence to a secret journal--to the intrigues--to the factions which in the nature of things appertain to such an assembly? if any man doubts the existence of these characters of congress, let him consult their journals for the years 78, 79, & 80.--it will be said, that if the people are averse to parting with power, why is it hoped that they will part with it to a national legislature. the proper answer is that in this case they do not part with power: they only transfer it from one sett of immediate representatives to another sett.--much has been said of the unsettled state of the mind of the people, he believed the mind of the people of america, as elsewhere, was unsettled as to some points; but settled as to others. in two points he was sure it was well settled. 1. in an attachment to republican government. 2. in an attachment to more than one branch in the legislature. their constitutions accord so generally in both these circumstances, that they seem almost to have been preconcerted. this must either have been a miracle, or have resulted from the genius of the people. the only exceptions to the establishm^t of two branches in the legislatures are the state of p^a & cong^s and the latter the only single one not chosen by the people themselves. what has been the consequence? the people have been constantly averse to giving that body further powers--it was acknowledged by (m^r patterson) that his plan could not be enforced without military coercion. does he consider the force of this concession. the most jarring elements of nature; fire & water themselves are not more incompatible that[n] such a mixture of civil liberty and military execution. will the militia march from one state to another, in order to collect the arrears of taxes from the delinquent members of the republic? will they maintain an army for this purpose? will not the citizens of the invaded state assist one another till they rise as one man, and shake off the union altogether. rebellion is the only case, in which the military force of the state can be properly exerted ag^{st} its citizens. in one point of view he was struck with horror at the prospect of recurring to this expedient. to punish the non-payment of taxes with death, was a severity not yet adopted by despotism itself: yet this unexampled cruelty would be mercy compared to a military collection of revenue, in which the bayonet could make no discrimination between the innocent and the guilty. he took this occasion to repeat, that notwithstanding his solicitude to establish a national government, he never would agree to abolish the state gov^{ts} or render them absolutely insignificant. they were as necessary as the gen^l gov^t and he would be equally careful to preserve them. he was aware of the difficulty of drawing the line between them, but hoped it was not insurmountable. the convention, tho' comprising so many distinguished characters, could not be expected to make a faultless gov^t. and he would prefer trusting to posterity the amendment of its defects, rather than to push the experiment too far. m^r luther martin agreed with (col mason) as to the importance of the state gov^{ts} he would support them at the expence of the gen^l gov^t which was instituted for the purpose of that support. he saw no necessity for two branches, and if it existed congress might be organized into two. he considered cong^s as representing the people, being chosen by the legislatures who were chosen by the people. at any rate, congress represented the legislatures; and it was the legislatures not the people who refused to enlarge their powers. nor could the rule of voting have been the ground of objection, otherwise ten of the states must always have been ready, to place further confidence in cong^s. the causes of repugnance must therefore be looked for elsewhere.--at the separation from the british empire, the people of america preferred the establishment of themselves into thirteen separate sovereignties instead of incorporating themselves into one: to these they look up for the security of their lives, liberties & properties: to these they must look up. the federal gov^t they formed, to defend the whole ag^{st} foreign nations, in case of war, and to defend the lesser states ag^{st} the ambition of the larger: they are afraid of granting power unnecessarily, lest they should defeat the original end of the union; lest the powers should prove dangerous to the sovereignties of the particular states which the union was meant to support; and expose the lesser to being swallowed up by the larger. he conceived also that the people of the states having already vested their powers in their respective legislatures, could not resume them without a dissolution of their governments. he was ag^{st} conventions in the states: was not ag^{st} assisting states ag^{st} rebellious subjects; thought the _federal_ plan of m^r patterson did not require coercion more than the _national one_, as the latter must depend for the deficiency of its revenues on requisitions & quotas, and that a national judiciary extended into the states would be ineffectual, and would be viewed with a jealousy inconsistent with its usefulness. m^r sherman 2^{ded} & supported m^r lansings motion. he admitted two branches to be necessary in the state legislatures, but saw no necessity for them in a confederacy of states. the examples were all, of a single council. cong^s carried us thro' the war, and perhaps as well as any gov^t could have done. the complaints at present are not that the views of cong^s are unwise or unfaithful; but that their powers are insufficient for the execution of their views. the national debt & the want of power somewhere to draw forth the national resources, are the great matters that press. all the states were sensible of the defect of power in cong^s. he thought much might be said in apology for the failure of the state legislatures to comply with the confederation. they were afraid of leaning too hard on the people, by accumulating taxes; no _constitutional_ rule had been or could be observed in the quotas--the accounts also were unsettled & every state supposed itself in advance, rather than in arrears. for want of a general system, taxes to a due amount had not been drawn from trade which was the most convenient resource. as almost all the states had agreed to the recommendation of cong^s on the subject of an impost, it appeared clearly that they were willing to trust cong^s with power to draw a revenue from trade. there is no weight therefore in the argument drawn from a distrust of cong^s for money matters being the most important of all, if the people will trust them with power as to them, they will trust them with any other necessary powers. cong^s indeed by the confederation have in fact the right of saying how much the people shall pay, and to what purpose it shall be applied: and this right was granted to them in the expectation that it would in all cases have its effect. if another branch were to be added to cong^s to be chosen by the people, it would serve to embarrass. the people would not much interest themselves in the elections, a few designing men in the large districts would carry their points, and the people would have no more confidence in their new representatives than in cong^s. he saw no reason why the state legislatures should be unfriendly as had been suggested, to cong^s. if they appoint cong^s and approve of their measures, they would be rather favourable and partial to them. the disparity of the states in point of size he perceived was the main difficulty. but the large states had not yet suffered from the equality of votes enjoyed by the small ones. in all great and general points, the interests of all the states were the same. the state of virg^a notwithstanding the equality of votes, ratified the confederation without, or even proposing, any alteration. mass^{ts} also ratified without any material difficulty &c. in none of the ratifications is the want of two branches noticed or complained of. to consolidate the states as some had proposed would dissolve our treaties with foreign nations, which had been formed with us, as _confederated_ states. he did not however suppose that the creation of two branches in the legislature would have such an effect. if the difficulty on the subject of representation can not be otherwise got over, he would agree to have two branches, and a proportional representation in one of them, provided each state had an equal voice in the other. this was necessary to secure the rights of the lesser states; otherwise three or four of the large states would rule the others as they please. each state like each individual had its peculiar habits usages and manners, which constituted its happiness. it would not therefore give to others a power over this happiness, any more than an individual would do, when he could avoid it. m^r wilson. urged the necessity of two branches; observed that if a proper model were not to be found in other confederacies it was not to be wondered at. the number of them was small & the duration of some at least short. the amphyctionic and achã¦an were formed in the infancy of political science; and appear by their history & fate, to have contained radical defects. the swiss & belgic confederacies were held together not by any vital principle of energy but by the incumbent pressure of formidable neighbouring nations: the german owed its continuance to the influence of the h. of austria. he appealed to our own experience for the defects of our confederacy. he had been 6 years in the 12 since the commencement of the revolution, a member of congress, and had felt all its weaknesses. he appealed to the recollection of others whether on many important occasions, the public interest had not been obstructed by the small members of the union. the success of the revolution was owing to other causes, than the constitution of congress. in many instances it went on even ag^{st} the difficulties arising from cong^s themselves. he admitted that the large states did accede as had been stated, to the confederation in its present form. but it was the effect of necessity not of choice. there are other instances of their yielding from the same motive to the unreasonable measures of the small states. the situation of things is now a little altered. he insisted that a jealousy would exist between the state legislatures & the general legislature: observing that the members of the former would have views & feelings very distinct in this respect from their constituents. a private citizen of a state is indifferent whether power be exercised by the gen^l or state legislatures, provided it be exercised most for his happiness. his representative has an interest in its being exercised by the body to which he belongs. he will therefore view the national legisl: with the eye of a jealous rival. he observed that the addresses of cong^s to the people at large, had always been better received & produced greater effect, than those made to the legislatures. on the question for postponing in order to take up m^r lansing's proposition "to vest the powers of legislation in cong^s" mass^{ts} no. con^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d div^d. v^a no. n. c. no. s. c. no. geo. no. on motion of the deputies from delaware, the question on the 2^d resolution in the report from the committee of the whole was postponed till tomorrow. adj^d. thursday june 21. in convention. m^r jonathan dayton from n. jersey took his seat.[94] [94] from june 21 to july 18 inclusive not copied by m^r eppes.--madison's note. this applies evidently to notes he permitted hon. george w. eppes, jefferson's son-in-law, to take. doc^r johnson.[95] on a comparison of the two plans which had been proposed from virginia & n. jersey, it appeared that the peculiarity which characterized the latter was its being calculated to preserve the individuality of the states. the plan from v^a did not profess to destroy this individuality altogether, but was charged with such a tendency. one gentleman alone (col. hamilton) in his animadversions on the plan of n. jersey, boldly and decisively contended for an abolition of the state gov^{ts}. m^r wilson & the gentleman from virg^a who also were adversaries of the plan of n. jersey held a different language. they wished to leave the states in possession of a considerable, tho' a subordinate jurisdiction. they had not yet however shewn how this c^d consist with, or be secured ag^{st} the general sovereignty & jurisdiction, which they proposed to give to the national government. if this could be shewn in such a manner as to satisfy the patrons of the n. jersey propositions, that the individuality of the states would not be endangered, many of their objections would no doubt be removed. if this could not be shewn their objections would have their full force. he wished it therefore to be well considered whether in case the states, as was proposed, sh^d retain some portion of sovereignty at least, this portion could be preserved, without allowing them to participate effectually in the gen^l gov^t, without giving them each a distinct and equal vote for the purpose of defending themselves in the general councils. [95] "d^r johnson is a character much celebrated for his legal knowledge; he is said to be one of the first classics in america, and certainly possesses a very strong and enlightened understanding. "as an orator in my opinion, there is nothing in him that warrants the high reputation which he has for public speaking. there is something in the tone of his voice not pleasing to the ear,--but he is eloquent and clear,--always abounding with information and instruction. he was once employed as an agent for the state of connecticut to state her claims to certain landed territory before the british house of commons; this office he discharged with so much dignity, and made such an ingenious display of his powers, that he laid the foundation of a reputation which will probably last much longer than his own life. d^r johnson is about sixty years of age, possesses the manners of a gentleman, and engages the hearts of men by the sweetness of his temper, and that affectionate style of address with which he accosts his acquaintance."--pierce's notes, _am. hist. rev._, iii., 326. m^r wilson's respect for doc^r johnson, added to the importance of the subject led him to attempt, unprepared as he was, to solve the difficulty which had been started. it was asked how the gen^l gov^t and individuality of the particular states could be reconciled to each other; and how the latter could be secured ag^{st} the former? might it not, on the other side be asked how the former was to be secured ag^{st} the latter? it was generally admitted that a jealousy & rivalship would be felt between the gen^l & particular gov^{ts}. as the plan now stood, tho' indeed contrary to his opinion, one branch of the gen^l gov^t (the senate or second branch) was to be appointed by the state legislatures. the state legislatures, therefore, by this participation in the gen^l gov^t would have an opportunity of defending their rights. ought not a reciprocal opportunity to be given to the gen^l gov^t of defending itself by having an appointment of some one constituent branch of the state gov^{ts}. if a security be necessary on one side, it w^d seem reasonable to demand it on the other. but taking the matter in a more general view, he saw no danger to the states from the gen^l gov^t. in case a combination should be made by the large ones it w^d produce a general alarm among the rest; and the project w^d be frustrated. but there was no temptation to such a project. the states having in general a similar interest, in case of any propositions in the national legislature to encroach on the state legislatures, he conceived a general alarm w^d take place in the national legislature itself, that it would communicate itself to the state legislatures, and w^d finally spread among the people at large. the gen^l gov^t will be as ready to preserve the rights of the states as the latter are to preserve the rights of individuals; all the members of the former, having a common interest, as representatives of all the people of the latter, to leave the state gov^{ts} in possession of what the people wish them to retain. he could not discover, therefore any danger whatever on the side from which it was apprehended. on the contrary, he conceived that in spite of every precaution the general gov^t would be in perpetual danger of encroachments from the state gov^{ts}. m^r madison was of opinion that there was 1. less danger of encroachment from the gen^l gov^t than from the state gov^{ts} 2. that the mischief from encroachments would be less fatal if made by the former, than if made by the latter. 1. all the examples of other confederacies prove the greater tendency in such systems to anarchy than to tyranny; to a disobedience of the members than usurpations of the federal head. our own experience had fully illustrated this tendency.--but it will be said that the proposed change in the principles & form of the union will vary the tendency; that the gen^l gov^t will have real & greater powers, and will be derived in one branch at least from the people, not from the gov^{ts} of the states. to give full force to this objection, let it be supposed for a moment that indefinite power should be given to the gen^l legislature, and the states reduced to corporations dependent on the gen^l legislature; why sh^d it follow that the gen^l gov^t w^d take from the states any branch of their power as far as its operation was beneficial, and its continuance desireable to the people? in some of the states, particularly in connecticut, all the townships are incorporated, and have a certain limited jurisdiction. have the representatives of the people of the townships in the legislature of the state ever endeavoured to despoil the townships of any part of their local authority? as far as this local authority is convenient to the people they are attached to it; and their representatives chosen by & amenable to them, naturally respect their attachment to this, as much as their attachment to any other right or interest. the relation of a general gov^t to state gov^{ts} is parallel. 2. guards were more necessary ag^{st} encroachments of the state gov^{ts} on the gen^l gov^t than of the latter on the former. the great objection made ag^{st} an abolition of the state gov^{ts} was that the gen^l gov^t could not extend its care to all the minute objects which fall under the cognizance of the local jurisdictions. the objection as stated lay not ag^{st} the probable abuse of the general power, but ag^{st} the imperfect use that could be made of it throughout so great an extent of country, and over so great a variety of objects. as far as its operation would be practicable it could not in this view be improper; as far as it would be impracticable, the conveniency of the gen^l gov^t itself would concur with that of the people in the maintenance of subordinate governments. were it practicable for the gen^l gov^t to extend its care to every requisite object without the cooperation of the state gov^{ts} the people would not be less free as members of one great republic than as members of thirteen small ones. a citizen of delaware was not more free than a citizen of virginia: nor would either be more free than a citizen of america. supposing therefore a tendency in the gen^l government to absorb the state gov^{ts} no fatal consequence could result. taking the reverse as the supposition, that a tendency should be left in the state gov^{ts} towards an independence on the general gov^t and the gloomy consequences need not be pointed out. the imagination of them, must have suggested to the states the experiment we are now making to prevent the calamity, and must have formed the chief motive with those present to undertake the arduous task. on the question for resolving "that the legislature ought to consist of two branches" mass. ay. con^t ay. n. y. no. n. jersey, no. p^a ay. del. no. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. the _third_ resolution of the report taken into consideration. gen^l pinkney moved "that the 1^{st} branch, instead of being elected by the people, sh^d be elected in such manner as the legislature of each state should direct." he urged 1. that this liberty would give more satisfaction, as the legislatures could then accommodate the mode to the conveniency & opinions of the people. 2. that it would avoid the undue influence of large counties which would prevail if the elections were to be made in districts as must be the mode intended by the report of the committee. 3. that otherwise disputed elections must be referred to the general legislature which would be attended with intolerable expence and trouble to the distant parts of the republic. m^r l. martin seconded the motion.[96] [96] after martin's second, according to yates: "m^r madison. i oppose the motion--there are no difficulties, but they may be obviated in the details connected with the subject."--yates, _secret proceedings_, etc., 149. col. hamilton considered the motion as intended manifestly to transfer the election from the people to the state legislatures, which would essentially vitiate the plan. it would increase that state influence which could not be too watchfully guarded ag^{st}. all too must admit the possibility, in case the gen^l gov^t sh^d maintain itself, that the state gov^{ts} might gradually dwindle into nothing. the system therefore sh^d not be engrafted on what might possibly fail. m^r mason urged the necessity of retaining the election by the people. whatever inconveniency may attend the democratic principle, it must actuate one part of the gov^t. it is the only security for the rights of the people. m^r sherman, would like an election by the legislatures best, but is content with the plan as it stands. m^r rutlidge could not admit the solidity of the distinction between a mediate & immediate election by the people. it was the same thing to act by oneself, and to act by another. an election by the legislature would be more refined than an election immediately by the people: and would be more likely to correspond with the sense of the whole community. if this convention had been chosen by the people in districts it is not to be supposed that such proper characters would have been preferred. the delegates to cong^s he thought had also been fitter men than would have been appointed by the people at large. m^r wilson considered the election of the 1^{st} branch by the people not only as the corner stone, but as the foundation of the fabric: and that the difference between a mediate & immediate election was immense. the difference was particularly worthy of notice in this respect: that the legislatures are actuated not merely by the sentiment of the people; but have an official sentiment opposed to that of the gen^l gov^t and perhaps to that of the people themselves. m^r king enlarged on the same distinction. he supposed the legislatures w^d constantly choose men subservient to their own views as contrasted to the general interest; and that they might even devise modes of election that w^d be subversive of the end in view. he remarked several instances in which the views of a state might be at variance with those of the gen^l gov^t: and mentioned particularly a competition between the national & state debts, for the most certain & productive funds. gen^l pinkney was for making the state gov^{ts} a part of the general system. if they were to be abolished, or lose their agency, s. carolina & other states would have but a small share of the benefits of gov^t. on the question for gen^l pinkney motion to substitute election of the 1^{st} branch in such mode as the legislatures should appoint, in stead of its being elected by the people" mass^{ts} no. con^t ay. n. y. no. n. j. ay. p^a no. del. ay. m^d div^d. v^a no. n. c. no. s. c. ay. geo. no. general pinkney then moved that the 1^{st} branch be elected _by the people_ in such mode as the legislatures should direct; but waived it on its being hinted that such a provision might be more properly tried in the detail of the plan. on the question for y^e election of the 1^{st} branch by the _people_" mass^{ts} ay. con^t ay. n. y. ay. n. j. no. p^a ay. del. ay. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. election of the 1^{st} branch "for the term of three years," considered. m^r randolph moved to strike out, "three years" and insert "two years"--he was sensible that annual elections were a source of great mischiefs in the states, yet it was the want of such checks ag^{st} the popular intemperence as were now proposed, that rendered them so mischievous. he would have preferred annual to biennial, but for the extent of the u. s. and the inconveniency which would result from them to the representatives of the extreme parts of the empire. the people were attached to frequency of elections. all the constitutions of the states except that of s. carolina, had established annual elections. m^r dickinson. the idea of annual elections was borrowed from the antient usage of england, a country much less extensive than ours. he supposed biennial would be inconvenient. he preferred triennial, and in order to prevent the inconveniency of an entire change of the whole number at the same moment, suggested a rotation, by an annual election of one third. m^r elseworth was opposed to three years, supposing that even one year was preferable to two years. the people were fond of frequent elections and might be safely indulged in one branch of the legislature. he moved for 1 year. m^r strong[97] seconded & supported the motion. [97] "m^r strong is a lawyer of some eminence,--he has received a liberal education, and has good connections to recommend him. as a speaker he is feeble, and without confidence. this gent^n is about thirty five years of age, and greatly in the esteem of his colleagues."--pierce's notes, _amer. hist. rev._ iii., 326. m^r wilson being for making the 1^{st} branch an effectual representation of the people at large, preferred an annual election of it. this frequency was most familiar & pleasing to the people. it would not be more inconvenient to them, than triennial elections, as the people in all the states have annual meetings with which the election of the national representatives might be made to co-incide. he did not conceive that it would be necessary for the nat^l leigsl: to sit constantly; perhaps not half--perhaps not one fourth of the year. m^r madison was persuaded that annual elections would be extremely inconvenient and apprehensive that biennial would be too much so; he did not mean inconvenient to the electors; but to the representatives. they would have to travel seven or eight hundred miles from the distant parts of the union; and would probably not be allowed even a reimbursement of their expences. besides, none of those who wished to be re-elected would remain at the seat of governm^t; confiding that their absence would not affect them. the members of cong^s had done this with few instances of disappointment. but as the choice was here to be made by the people themselves who would be much less complaisant to individuals, and much more susceptible of impressions from the presence of a rival candidate, it must be supposed that the members from the most distant states would travel backwards & forwards at least as often as the elections should be repeated. much was to be said also on the time requisite for new members who would always form a large proportion, to acquire that knowledge of the affairs of the states in general without which their trust could not be usefully discharged. m^r sherman preferred annual elections, but would be content with biennial. he thought the representatives ought to return home and mix with the people. by remaining at the seat of gov^t they would acquire the habits of the place which might differ from those of their constituents. col. mason observed that the states being differently situated such a rule ought to be formed as would put them as nearly as possible on a level. if elections were annual the middle states would have a great advantage over the extreme ones. he wished them to be biennial; and the rather as in that case they would coincide with the periodical elections of s. carolina as well of the other states. col. hamilton urged the necessity of 3 years, there ought to be neither too much nor too little dependence, on the popular sentiments. the checks in the other branches of the govern^t would be but feeble, and would need every auxiliary principle that could be interwoven. the british house of commons were elected septennially, yet the democratic spirit of y^e constitution had not ceased. frequency of elections tended to make the people listless to them; and to facilitate the success of little cabals. this evil was complained of in all the states. in virg^a it had been lately found necessary to force the attendance & voting of the people by severe regulations. on the question for striking out "three years" mass^{ts} ay. con^t ay. n. y. no. n. j. div^d. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. the motion for "two years" was then inserted nem. con. adj^d. friday june 22. in convention the clause in resol. 3 "to receive fixed stipends to be paid out of the nation^l treasury" considered. m^r elseworth, moved to substitute payment by the states out of their own treasurys: observing that the manners of different states were very different in the stile of living and in the profits accruing from the exercise of like talents. what would be deemed therefore a reasonable compensation in some states, in others would be very unpopular, and might impede the system of which it made a part. m^r williamson favored the idea. he reminded the house of the prospect of new states to the westward. they would be too poor--would pay little into the common treasury--and would have a different interest from the old states. he did not think therefore that the latter ought to pay the expences of men who would be employed in thwarting their measures & interests. m^r ghorum[98] wished not to refer the matter to the state legislatures who were always paring down salaries in such a manner as to keep out of offices men most capable of executing the functions of them. he thought also it would be wrong to fix the compensations by the constitution, because we could not venture to make it as liberal as it ought to be without exciting an enmity ag^{st} the whole plan. let the nat^l legisl: provide for their own wages from time to time; as the state legislatures do. he had not seen this part of their power abused, nor did he apprehend an abuse of it. [98] "m^r gorham is a merchant in boston, high in reputation, and much in the esteem of his country-men. he is a man of very good sense, but not much improved in his education. he is eloquent and easy in public debate, but has nothing fashionable or elegant in his style;--all he aims at is to convince, and where he fails it never is from his auditory not understanding him, for no man is more perspicuous and full. he has been president of congress, and three years a member of that body. m^r gorham is about 46 years of age, rather lusty, and has an agreeable and pleasing manner."--pierce's notes, _am. hist. rev._, iii., 325. m^r randolph said he feared we were going too far, in consulting popular prejudices. whatever respect might be due to them, in lesser matters, or in cases where they formed the permanent character of the people, he thought it neither incumbent on nor honorable for the convention, to sacrifice right & justice to that consideration. if the states were to pay the members of the nat^l legislature, a dependence would be created that would vitiate the whole system. the whole nation has an interest in the attendance & services of the members. the nation^l treasury therefore is the proper fund for supporting them. m^r king, urged the danger of creating a dependence on the states by leav^g to them the payment of the members of the nat^l legislature. he supposed it w^d be best to be explicit as to the compensation to be allowed. a reserve on that point, or a reference to the nat^l legislature of the quantum, would excite greater opposition than any sum that would be actually necessary or proper. m^r sherman contended for referring both the quantum and the payment of it to the state legislatures. m^r wilson was ag^{st} _fixing_ the compensation as circumstances would change and call for a change of the amount. he thought it of great moment that the members of the nat^l gov^t should be left as independent as possible of the state gov^{ts} in all respects. m^r madison concurred in the necessity of preserving the compensations for the nat^l gov^t independent on the state gov^{ts} but at the same time approved of _fixing_ them by the constitution, which might be done by taking a standard which w^d not vary with circumstances. he disliked particularly the policy suggested by m^r williamson of leaving the members from the poor states beyond the mountains, to the precarious & parsimonious support of their constituents. if the western states hereafter arising should be admitted into the union, they ought to be considered as equals & as brethren. if their representatives were to be associated in the common councils, it was of common concern that such provisions should be made as would invite the most capable and respectable characters into the service. m^r hamilton apprehended inconveniency from _fixing_ the wages. he was strenuous ag^{st} making the national council dependent on the legislative rewards of the states. those who pay are the masters of those who are paid. payment by the states would be unequal as the distant states would have to pay for the same term of attendance and more days in travelling to & from the seat of the gov^t. he expatiated emphatically on the difference between the feelings & views of the _people_--& the _governments_ of the states arising from the personal interest & official inducements which must render the latter unfriendly to the gen^l gov^t. m^r wilson moved that the salaries of the 1^{st} branch "_be ascertained by the national legislature_," and be paid out of the nat^l treasury. m^r madison, thought the members of the legis^l too much interested to ascertain their own compensation. it w^d be indecent to put their hands into the public purse for the sake of their own pockets. on this question mass. no. con^t no. n. y. div^d n. j. ay. p^a ay. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. div^d. on the question for striking out "nat^l treasury" as moved by m^r elseworth. m^r hamilton renewed his opposition to it. he pressed the distinction between the state gov^{ts} & the people. the former w^d be the rivals of the gen^l gov^t. the state legislatures ought not therefore to be the paymasters of the latter. m^r elseworth. if we are jealous of the state gov^{ts} they will be so of us. if on going home i tell them we gave the gen: gov^t such powers because we c^d not trust you. will they adopt it, and with^t y^r approbation it is a nullity.[99] [99] according to yates, wilson followed ellsworth: "mr. wilson. i am not for submitting the national government to the approbation of the state legislatures. i know that they and the state officers will oppose it. i am for carrying it to the people of each state."--yates, _secret proceedings_, etc., 153. mass^{ts} ay. con^t ay. n. y. div^d. n. j. no. pen^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. div^d.[100] [100] (it appeared that mass^{ts} concurred, not because they thought the state treas^y ought to be substituted; but because they thought nothing should be said on the subject, in which case it w^d silently devolve on the nat^l treasury to support the national legislature.)--madison's note. on a question for substituting "adequate compensation" in place of "fixt stipends" it was agreed to nem. con. the friends of the latter being willing that the practicability of _fixing_ the compensation should be considered hereafter in forming the details. it was then moved by m^r butler that a question be taken on both points jointly; to wit "adequate compensation to be paid out of the nat^l treasury." it was objected to as out of order, the parts having been separately decided on. the presid^t refer^d the question of order to the house, and it was determined to be in order. con. n. j. del. m^d n. c. s. c.--ay.--n. y. p^a v^a geo. no.--mass. divided. the question on the sentence was then postponed by s. carolina in right of the state. col. mason moved to insert "twenty-five years of age as a qualification for the members of the 1^{st} branch." he thought it absurd that a man today should not be permitted by the law to make a bargain for himself, and tomorrow should be authorized to manage the affairs of a great nation. it was more extraordinary as every man carried with him in his own experience a scale for measuring the deficiency of young politicians; since he would if interrogated be obliged to declare that his political opinions at the age of 21. were too crude & erroneous to merit an influence on public measures. it had been said that cong^s had proved a good school for our young men. it might be so for any thing he knew but if it were, he chose that they should bear the expence of their own education. m^r wilson was ag^{st} abridging the rights of election in any shape. it was the same thing whether this were done by disqualifying the objects of choice, or the persons chusing. the motion tended to damp the efforts of genius, and of laudable ambition. there was no more reason for incapacitating _youth_ than _age_, where the requisite qualifications were found. many instances might be mentioned of signal services rendered in high stations to the public before the age of 25: the present m^r pitt and lord bolingbroke were striking instances. on the question for inserting "25 years of age" mass^{ts} no. con^t ay. n. y. div^d. n. j. ay. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. m^r ghorum moved to strike out the last member of the 3 resol: concerning ineligibility of members of the 1^{st} branch to office during the term of their membership & for one year after. he considered it as unnecessary & injurious. it was true abuses had been displayed in g. b. but no one c^d say how far they might have contributed to preserve the due influence of the gov^t nor what might have ensued in case the contrary theory had been tried. m^r butler opposed it. this precaution ag^{st} intrigue was necessary. he appealed to the example of g. b. where men got into parl^t that they might get offices for themselves or their friends. this was the source of the corruption that ruined their gov^t. m^r king, thought we were refining too much. such a restriction on the members would discourage merit. it would also give a pretext to the executive for bad appointments, as he might always plead this as a bar to the choice he wished to have made. m^r wilson was ag^{st} fettering elections, and discouraging merit. he suggested also the fatal consequence in time of war, of rendering perhaps the best commanders ineligible; appealing to our situation during the late war, and indirectly leading to a recollection of the appointment of the co[~m]ander in chief out of congress.[101] [101] according to yates, madison followed wilson: "mr. madison. some gentlemen give too much weight and others too little to this subject. if you have no exclusive clause, there may be danger of creating offices or augmenting the stipends of those already created, in order to gratify some members if they were not excluded. such an instance has fallen within my own observation. i am therefore of opinion, that no office ought to be open to a member, which may be created or augmented while he is in the legislature."--yates, _secret proceedings_, etc., 155. yates gives the rest of the debate as follows: "mr. mason. it seems as if it was taken for granted, that all offices will be filled by the executive, while i think many will remain in the gift of the legislature. in either case, it is necessary to shut the door against corruption. if otherwise, they may make or multiply offices, in order to fill them. are gentlemen in earnest when they suppose that this exclusion will prevent the first characters from coming forward? are we not struck at seeing the luxury and venality which has already crept in among us? if not checked we shall have ambassadors to every petty state in europe--the little republic of _st. marino_ not excepted. we must in the present system remove the temptation. i admire many parts of the british constitution and government, but i detest their corruption.--why has the power of the crown so remarkably increased the last century? a stranger, by reading their laws, would suppose it considerably diminished; and yet, by the sole power of appointing the increased officers of government, corruption pervades every town and village in the kingdom. if such a restriction should abridge the right of election, it is still necessary, as it will prevent the people from ruining themselves; and will not the same causes here produce the same effects? i consider this clause as the corner-stone on which our liberties depend--and if we strike it out we are erecting a fabric for our destruction. "mr. gorham. the corruption of the english government cannot be applied to america. this evil exists there in the venality of their boroughs; but even this corruption has its advantage, as it gives stability to their government. we do not know what the effect would be if members of parliament were excluded from offices. the great bulwark of our liberty is the frequency of elections, and the great danger is the septennial parliaments. "mr. hamilton. in all general questions which become the subjects of discussion, there are always some truths mixed with falsehoods. i confess there is danger where men are capable of holding two offices. take mankind in general, they are vicious--their passions may be operated upon. we have been taught to reprobate the danger of influence in the british government, without duly reflecting how far it was necessary to support a good government. we have taken up many ideas on trust, and at last, pleased with their own opinions, establish them as undoubted truths. hume's opinion of the british constitution confirms the remark, that there is always a body of firm patriots, who often shake a corrupt administration. take mankind as they are, and what are they governed by? their passions. there may be in every government a few choice spirits, who may act from more worthy motives. one great error is that we suppose mankind more honest than they are. our prevailing passions are ambition and interest; and it will ever be the duty of a wise government to avail itself of those passions, in order to make them subservient to the public good--for these ever induce us to action. perhaps a few men in a state, may, from patriotic motives, or to display their talents, or to reap the advantage of public applause, step forward; but if we adopt the clause, we destroy the motive. i am therefore against all exclusions and refinements, except only in this case; that when a member takes his seat, he should vacate every other office. it is difficult to put any exclusive regulation into effect. we must in some degree submit to the inconvenience."--yates, _secret proceedings_, etc., 155, 156. col. mason was for shutting the door at all events ag^{st} corruption. he enlarged on the venality and abuses in this particular in g. britain: and alluded to the multiplicity of foreign embassies by cong^s. the disqualification he regarded as a corner stone in the fabric. col. hamilton, there are inconveniences on both sides. we must take man as we find him, and if we expect him to serve the public must interest his passions in doing so. a reliance on pure patriotism had been the source of many of our errors. he thought the remark of m^r ghorum a just one. it was impossible to say what w^d be the effect in g. b. of such a reform as had been urged. it was known that one of the ablest politicians (m^r hume) had pronounced all that influence on the side of the crown, which went under the name of corruption, an essential part of the weight which maintained the equilibrium of the constitution. on m^r ghorum's motion for striking out "ineligibility," mass^{ts} ay. con^t no. n. y. div^d. n. j. ay. p^a div^d. del. div^d. mar^d no. v^a no. n. c. ay. s. c. no. g^a ay. adj^d. saturday june 23. in convention the 3^d resol: resumed. on question yesterday postponed by s. carol: for agreeing to the whole sentence "for allowing an adequate compensation to be paid out of the _treasury of the u. states_" mass^{ts} ay. con^t no. n. y. no. n. j. ay. pen^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. divided. so the question was lost, & the sentence not inserted: gen^l pinkney moves to strike out the ineligibility of members of the 1^{st} branch to offices established "by a particular state." he argued from the inconveniency to which such a restriction would expose both the members of the 1^{st} branch, and the states wishing for their services; & from the smallness of the object to be attained by the restriction. it w^d seem from the ideas of some that we are erecting a kingdom to be divided ag^{st} itself,[102] he disapproved such a fetter on the legislature. [102] according to yates wilson followed pinckney: "mr. wilson. i perceive that some gentlemen are of opinion to give a bias in favor of state governments. this question ought to stand on the same footing."--yates, _secret proceedings_, etc., 157. m^r sherman seconds the motion. it w^d seem that we are erecting a kingdom at war with itself. the legislature ought not to [be] fettered in such a case. on the question mass^{ts} no. con^t ay. n. y. ay. n. j. ay. p^a no. m^d div^d. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r madison renewed his motion yesterday made & waved to render the members of the 1^{st} branch "ineligible during their term of service, & for one year after--to such offices only as should be established, or the emoluments thereof augmented, by the legislature of the u. states during the time of their being members." he supposed that the unnecessary creation of offices, and increase of salaries, were the evils most experienced, & that if the door was shut ag^{st} them: it might properly be left open for the appoint^t of members to other offices as an encouragem^t to the legislative service. m^r alex: martin[103] seconded the motion. [103] "mr. martin was lately governor of north carolina, which office he filled with credit. he is a man of sense, and undoubtedly is a good politician, but he is not formed to shine in public debate, being no speaker. mr. martin was once a colonel in the american army, but proved unfit for the field. he is about 40 years of age."--pierce's notes, _am. hist. rev._, iii., 332. m^r butler. the amend^t does not go far eno. & w^d be easily evaded. m^r rutlidge, was for preserving the legislature as pure as possible, by shutting the door against appointments of its own members to offices, which was one source of its corruption. m^r mason.[104] the motion of my colleague is but a partial remedy for the evil. he appealed to him as a witness of the shameful partiality of the legislature of virginia to its own members. he enlarged on the abuses & corruption in the british parliament, connected with the appointment of its members. he c^d not suppose that a sufficient number of citizens could not be found who would be ready, without the inducement of eligibility to offices, to undertake the legislative service. genius & virtue it may be said, ought to be encouraged. genius, for aught he knew, might, but that virtue should be encouraged by such a species of venality, was an idea, that at least had the merit of being new. [104] yates gives mason's speech more fully and a speech by madison omitted here: "mr. mason. i differ from my colleague in his proposed amendment. let me state the practice in the state where we came from. there, all officers are appointed by the legislature. need i add, that many of their appointments are most shameful. nor will the check proposed by this amendment be sufficient. it will soon cease to be any check at all. it is asserted that it will be very difficult to find men sufficiently qualified as legislators without the inducement of emolument. i do believe that men of genius will be deterred unless possessed of great virtues. we may well dispense with the first characters when destitute of virtue--i should wish them never to come forward--but if we do not provide against corruption, our government will soon be at an end; nor would i wish to put a man of virtue in the way of temptation. evasions and caballing would evade the amendment. nor would the danger be less, if the executive has the appointment of officers. the first three or four years we might go on well enough; but what would be the case afterwards? i will add, that such a government ought to be refused by the people--and it will be refused. "mr. madison. my wish is that the national legislature be as uncorrupt as possible. i believe all public bodies are inclined, from various motives, to support its members; but it is not always done from the base motives of venality. friendship, and a knowledge of the abilities of those with whom they associate, may produce it. if you bar the door against such attachments, you deprive the government of its greatest strength and support. can you always rely on the patriotism of the members? if this be the only inducement, you will find a great indifferency in filling your legislative body. if we expect to call forth useful characters, we must hold out allurements; nor can any great inconveniency arise from such inducements. the legislative body must be the road to public honor; and the advantage will be greater to adopt my motion, than any possible inconvenience."--yates, _secret proceedings_, etc., 158. m^r king remarked that we were refining too much in this business; and that the idea of preventing intrigue and solicitation of offices was chimerical. you say that no member shall himself be eligible to any office. will this restrain him from availing himself of the same means which would gain appointments for himself, to gain them for his son, his brother, or any other object of his partiality. we were losing therefore the advantages on one side, without avoiding the evils on the other. m^r wilson supported the motion. the proper cure he said for corruption in the legislature was to take from it the power of appointing to offices. one branch of corruption would indeed remain, that of creating unnecessary offices, or granting unnecessary salaries, and for that the amendment would be a proper remedy. he animadverted on the impropriety of stigmatizing with the name of venality the laudable ambition of rising into the honorable offices of the government; an ambition most likely to be felt in the early & most incorrupt period of life, & which all wise & free gov^{ts} had deemed it sound policy, to cherish, not to check. the members of the legislature have perhaps the hardest & least profitable task of any who engage in the service of the state. ought this merit to be made a disqualification? m^r sherman observed that the motion did not go far enough. it might be evaded by the creation of a new office, the translation to it of a person from another office, and the appointment of a member of the legislature to the latter. a new embassy might be established to a new court, & an ambassador taken from another, in order to _create_ a vacancy for a favorite member. he admitted that inconveniences lay on both sides. he hoped there w^d be sufficient inducements to the public service without resorting to the prospect of desirable offices, and on the whole was rather ag^{st} the motion of m^r madison. m^r gerry thought there was great weight in the objection of m^r sherman. he added as another objection ag^{st} admitting the eligibility of members in any case that it would produce intrigues of ambitious men for displacing proper officers, in order to create vacancies for themselves.[105] in answer to m^r king he observed that although members, if disqualified themselves might still intrigue & cabal for their sons, brothers &c., yet as their own interests would be dearer to them, than those of their nearest connections, it might be expected they would go greater lengths to promote it. [105] yates gives gerry's remarks: "this amendment is of great weight, and its consequences ought to be well considered. at the beginning of the war, we possessed more than roman virtue. it appears to me it is now the reverse. we have more land and stock-jobbers than any place on earth. it appears to me that we have constantly endeavored to keep distinct the three great branches of government; but if we agree to this motion, it must be destroyed by admitting the legislators to share in the executive, or to be too much influenced by the executive, in looking up to them for offices."--yates, _secret proceedings_, etc., 160. m^r madison had been led to this motion as a middle ground between an eligibility in all cases, and an absolute disqualification. he admitted the probable abuses of an eligibility of the members, to offices particularly within the gift of the legislature. he had witnessed the partiality of such bodies to their own members, as had been remarked of the virginia assembly by his colleague (col. mason). he appealed however to him, in turn to vouch another fact not less notorious in virginia, that the backwardness of the best citizens to engage in the legislative service gave but too great success to unfit characters. the question was not to be viewed on one side only. the advantages & disadvantages on both ought to be fairly compared. the objects to be aimed at were to fill all offices with the fittest characters, & to draw the wisest & most worthy citizens into the legislative service. if on one hand, public bodies were partial to their own members; on the other they were as apt to be misled by taking characters on report, or the authority of patrons and dependents. all who had been concerned in the appointment of strangers on those recommendations must be sensible of this truth. nor w^d the partialities of such bodies be obviated by disqualifying their own members. candidates for office would hover round the seat of gov^t or be found among the residents there, and practise all the means of counting the favor of the members. a great proportion of the appointments made by the states were evidently brought about in this way. in the general gov^t the evil must be still greater, the characters of distant states, being much less known throughout the u. states than those of the distant parts of the same state. the elections by congress had generally turned on men living at the seat of the fed^l gov^t or in its neighbourhood.--as to the next object, the impulse to the legislative service, was evinced by experience to be in general too feeble with those best qualified for it. this inconveniency w^d also be more felt in the nat^l gov^t than in the state gov^{ts} as the sacrifices req^d from the distant members, w^d be much greater, and the pecuniary provisions, probably, more disproportionate. it w^d therefore be impolitic to add fresh objections to the legislative service by an absolute disqualification of its members. the point in question was whether this would be an objection with the most capable citizens. arguing from experience he concluded that it would. the legislature of virg^a would probably have been without many of its best members, if in that situation, they had been ineligible to cong^s to the gov^t & other honorable offices of the state. m^r butler thought characters fit for office w^d never be unknown. col. mason. if the members of the legislature are disqualified, still the honors of the state will induce those who aspire to them to enter that service, as the field in which they can best display & improve their talents, & lay the train for their subsequent advancement. m^r jenifer remarked that in maryland, the senators chosen for five years, c^d hold no other office & that this circumstance gained them the greatest confidence of the people. on the question for agreeing to the motion of m^r madison, mass^{ts} div^d. c^t ay. n. y. no. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r sherman mov^d to insert the words "and incapable of holding" after the words "eligible to offices" w^{ch} was agreed to without opposition. the word "established" & the words "nat^l gov^t" were struck out of the resolution 3^d. m^r spaight called for a division of the question, in consequence of which it was so put, as that it turned in the first member of it, "on the ineligibility of members _during the term for which they were elected_"--whereon the states were, mass^{ts} div^d. c^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. on the 2^d member of the sentence extending ineligibility of members to one year after the term for which they were elected col. mason thought this essential to guard ag^{st} evasions by resignations, and stipulations for office to be filled at the expiration of the legislative term. m^r gerry, had known such a case. m^r hamilton. evasions c^d not be prevented--as by proxies--by friends holding for a year, & then opening the way &c. m^r rutlidge admitted the possibility of evasions, but was for contracting them as possible. mass. no. c^t no. n. y. ay. n. j. no. p^a div^d. del. ay. mar^d ay. v^a no. n. c. no. s. c. ay. geo. no. adj^d. monday, june 25. in convention. resolution 4. being taken up. m^r pinkney spoke as follows--[106] the efficacy of the system will depend on this article. in order to form a right judgm^t in the case, it will be proper to examine the situation of this country more accurately than it has yet been done. the people of the u. states are perhaps the most singular of any we are acquainted with. among them there are fewer distinctions of fortune & less of rank, than among the inhabitants of any other nation. every freeman has a right to the same protection & security; and a very moderate share of property entitles them to the possession of all the honors and privileges the public can bestow: hence arises a greater equality, than is to be found among the people of any other country, and an equality which is more likely to continue--i say this equality is likely to continue, because in a new country, possessing immense tracts of uncultivated lands, where every temptation is offered to emigration & where industry must be rewarded with competency, there will be few poor, and few dependent--every member of the society almost, will enjoy an equal power of arriving at the supreme offices & consequently of directing the strength & sentiments of the whole community. none will be excluded by birth, & few by fortune, from voting for proper persons to fill the offices of government--the whole community will enjoy in the fullest sense that kind of political liberty which consists in the power the members of the state reserve to themselves, of arriving at the public offices, or at least, of having votes in the nomination of those who fill them. [106] pinckney furnished madison with a copy of this speech which he transcribed, but apparently not with the whole of it, as madison's note at the end indicates. the original pinckney draft is among the madison papers, and shows madison's copying to have been accurate. if this state of things is true & the prospect of its continuing probable, it is perhaps not politic to endeavour too close an imitation of a government calculated for a people whose situation is, & whose views ought to be extremely different. much has been said of the constitution of g. britain. i will confess that i believe it to be the best constitution in existence; but at the same time i am confident it is one that will not or cannot be introduced into this country, for many centuries.--if it were proper to go here into a historical dissertation on the british constitution, it might easily be shewn that the peculiar excellence, the distinguishing feature of that governm^t cannot possibly be introduced into our system--that its balance between the crown & the people cannot be made a part of our constitution,--that we neither have nor can have the members to compose it, nor the rights, privileges & properties of so distinct a class of citizens to guard,--that the materials for forming this balance or check do not exist, nor is there a necessity for having so permanent a part of our legislative, until the executive power is so constituted as to have something fixed & dangerous in its principle--by this i mean a sole, hereditary, though limited executive. that we cannot have a proper body for forming a legislative balance between the inordinate power of the executive and the people, is evident from a review of the accidents & circumstances which gave rise to the peerage of great britain--i believe it is well ascertained that the parts which compose the british constitution arose immediately from the forests of germany; but the antiquity of the establishment of nobility is by no means clearly defined. some authors are of opinion that the dignity denoted by the titles of dux et comes, was derived from the old roman to the german empire; while others are of the opinion that they existed among the germans long before the romans were acquainted with them. the institution however of nobility is immemorial among the nations who may properly be termed the ancestors of britain.--at the time they were summoned in england to become a part of the national council, the circumstances which contributed to make them a constituent part of that constitution, must be well known to all gentlemen who have had industry & curiosity enough to investigate the subject--the nobles with their possessions & dependents composed a body permanent in their nature and formidable in point of power. they had a distinct interest both from the king and the people; an interest which could only be represented by themselves, and the guardianship could not be safely intrusted to others.--at the time they were originally called to form a part of the national council, necessity perhaps as much as other cause, induced the monarch to look up to them. it was necessary to demand the aid of his subjects in personal & pecuniary services. the power and possessions of the nobility would not permit taxation from any assembly of which they were not a part: & the blending the deputies of the commons with them, & thus forming what they called their parlerment was perhaps as much the effect of chance as of any thing else. the commons were at that time compleatly subordinate to the nobles, whose consequence & influence seem to have been the only reasons for their superiority; a superiority so degrading to the commons that in the first summons we find the peers are called upon to consult the commons to consent. from this time the peers have composed a part of the british legislature, and notwithstanding their power and influence have diminished & those of the commons have increased, yet still they have always formed an excellent balance ag^{st} either the encroachments of the crown or the people. i have said that such a body cannot exist in this country for ages, and that untill the situation of our people is exceedingly changed no necessity will exist for so permanent a part of the legislature. to illustrate this i have remarked that the people of the united states are more equal in their circumstances than the people of any other country--that they have very few rich men among them,--by rich men i mean those whose riches may have a dangerous influence, or such as are esteemed rich in europe--perhaps there are not one hundred such on the continent; that it is not probable this number will be greatly increased; that the genius of the people their mediocrity of situation & the prospects which are afforded their industry in a country which must be a new one for centuries are unfavorable to the rapid distinction of ranks. the destruction of the right of primogeniture & the equal division of the property of intestates will also have an effect to preserve this mediocrity; for laws invariably affect the manners of a people. on the other hand that vast extent of unpeopled territory which opens to the frugal & industrious a sure road to competency & independence will effectually prevent for a considerable time the increase of the poor or discontented, and be the means of preserving that equality of condition which so eminently distinguishes us. if equality is as i contend the leading feature of the u. states, where then are the riches & wealth whose representation & protection is the peculiar province of this permanent body. are they in the hands of the few who may be called rich; in the possession of less than a hundred citizens? certainly not. they are in the great body of the people, among whom there are no men of wealth, and very few of real poverty.--is it probable that a change will be created, and that a new order of men will arise? if under the british government, for a century no such change was probable, i think it may be fairly concluded it will not take place while even the semblance of republicanism remains.--how is this change to be effected? where are the sources from whence it is to flow? from the landed interest? no. that is too unproductive & too much divided in most of the states. from the monied interest? if such exists at present, little is to be apprehended from that source. is it to spring from commerce? i believe it would be the first instance in which a nobility sprang from merchants. besides, sir, i apprehend that on this point the policy of the u. states has been much mistaken. we have unwisely considered ourselves as the inhabitants of an old instead of a new country. we have adopted the maxims of a state full of people & manufactures & established in credit. we have deserted our true interest, and instead of applying closely to those improvements in domestic policy which would have ensured the future importance of our commerce, we have rashly & prematurely engaged in schemes as extensive as they are imprudent. this however is an error which daily corrects itself & i have no doubt that a few more severe trials will convince us, that very different commercial principles ought to govern the conduct of these states. the people of this country are not only very different from the inhabitants of any state we are acquainted with in the modern world; but i assert that their situation is distinct from either the people of greece or rome, or of any state we are acquainted with among the antients.--can the orders introduced by the institution of solon, can they be found in the united states? can the military habits & manners of sparta be resembled to our habits & manners? are the distinction of patrician & plebeian known among us? can the helvetic or belgic confederacies, or can the unwieldy, unmeaning body called the germanic empire, can they be said to possess either the same or a situation like ours? i apprehend not.--they are perfectly different, in their distinctions of rank, their constitutions, their manners & their policy. our true situation appears to me to be this,--a new extensive country containing within itself the materials for forming a government capable of extending to its citizens all the blessings of civil & religious liberty--capable of making them happy at home. this is the great end of republican establishments. we mistake the object of our government, if we hope or wish that it is to make us respectable abroad. conquest or superiority among other powers is not or ought not ever to be the object of republican systems. if they are sufficiently active & energetic to rescue us from contempt & preserve our domestic happiness & security, it is all we can expect from them,--it is more than almost any other government ensures to its citizens. i believe this observation will be found generally true:--that no two people are so exactly alike in their situation or circumstances as to admit the exercise of the same government with equal benefit; that a system must be suited to the habits & genius of the people it is to govern, and must grow out of them. the people of the u. s. may be divided into three classes--_professional men_ who must from their particular pursuits always have a considerable weight in the government while it remains popular--_commercial men_, who may or may not have weight as a wise or injudicious commercial policy is pursued.--if that commercial policy is pursued which i conceive to be the true one, the merchants of this country will not or ought not for a considerable time to have much weight in the political scale.--the third is the _landed interest_, the owners and cultivators of the soil, who are and ought ever to be the governing spring in the system.--these three classes, however distinct in their pursuits are individually equal in the political scale, and may be easily proved to have but one interest. the dependence of each on the other is mutual. the merchant depends on the planter. both must in private as well as public affairs be connected with the professional men; who in their turn must in some measure depend on them. hence it is clear from this manifest connection, & the equality which i before stated exists, & must for the reasons then assign, continue, that after all there is one, but one great & equal body of citizens composing the inhabitants of this country among whom there are no distinctions of rank, and very few or none of fortune. for a people thus circumstanced are we then to form a government & the question is what sort of government is best suited to them. will it be the british gov^t? no. why? because g. britain contains three orders of people distinct in their situation, their possessions & their principles.--these orders combined form the great body of the nation. and as in national expences the wealth of the whole community must contribute, so ought each component part to be properly & duly represented.--no other combination of power could form this due representation, but the one that exists.--neither the peers or the people could represent the royalty, nor could the royalty & the people form a proper representation for the peers.--each therefore must of necessity be represented by itself, or the sign of itself; and this accidental mixture has certainly formed a government admirably well balanced. but the u. states contain but one order that can be assimilated to the british nation,--this is the order of commons. they will not surely then attempt to form a government consisting of three branches, two of which shall have nothing to represent. they will not have an executive & senate (hereditary) because the king & lords of england are so. the same reasons do not exist and therefore the same provisions are not necessary. we must as has been observed suit our governm^t to the people it is to direct. these are i believe as active, intelligent & susceptible of good governm^t as any people in the world. the confusion which has produced the present relaxed state is not owing to them. it is owing to the weakness & (defects) of a gov^t incapable of combining the various interests it is intended to unite, and destitute of energy.--all that we have to do then is to distribute the powers of gov^t in such a manner, and for such limited periods, as while it gives a proper degree of permanency to the magistrate, will reserve to the people, the right of election they will not or ought not frequently to part with.--i am of opinion that this may easily be done; and that with some amendments the propositions before the committee will fully answer this end. no position appears to me more true than this; that the general gov^t cannot effectually exist without reserving to the states the possession of their local rights. they are the instruments upon which the union must frequently depend for the support & execution of their powers, however immediately operating upon the people, and not upon the states. much has been said about the propriety of abolishing the distinction of state governments, & having but one general system. suffer me for a moment to examine this question.[107] [107] the residue of this speech was not furnished, like the above, by mr. pinckney.--madison's note. yates' report of the speech is meagre. the closing paragraph, apparently the part lacking in madison's report, is: "while we were dependent on the crown of great britain, it was in contemplation to form the whole into one; but it was found impracticable. no legislature could make good laws for the whole, nor can it now be done. it would necessarily place the power in the hands of the few nearest the seat of government. state governments must therefore remain, if you mean to prevent confusion. the general negative powers will support the general government. upon these considerations, i am led to form the second branch differently from the report. these powers are important, and the number not too large, upon the principle of proportion. i have considered the subject with great attention; and i propose this plan (reads it), and if no better plan is proposed, i will then move its adoption."--yates, _secret proceedings_, etc., 163. the mode of constituting the 2^d branch being under consideration. the word "national" was struck out, and "united states" inserted. m^r ghorum, inclined to a compromise as to the rule of proportion. he thought there was some weight in the objections of the small states. if v^a should have 16. votes & del^{re} with several other states together 16, those from virg^a would be more likely to unite than the others, and would therefore have an undue influence. this remark was applicable not only to states, but to counties or other districts of the same state. accordingly the constitution of mass^{ts} had provided that the representatives of the larger districts should not be in an exact ratio to their numbers, and experience he thought had shewn the provision to be expedient. m^r read. the states have heretofore been in a sort of partnership. they ought to adjust their old affairs before they open a new account. he brought into view the appropriation of the co[~m]on interest in the western lands, to the use of particular states. let justice be done on this head; let the fund be applied fairly & equally to the discharge of the general debt, and the smaller states who had been injured; would listen then perhaps to those ideas of just representation which had been held out. m^r ghorum, did not see how the convention could interpose in the case. errors he allowed had been committed on the subject. but cong^s were now using their endeavours to rectify them. the best remedy would be such a government as would have vigor enough to do justice throughout. this was certainly the best chance that could be afforded to the smaller states. m^r wilson, the question is shall the members of the 2^d branch be chosen by the legislatures of the states? when he considered the amazing extent of country--the immense population which is to fill it, the influence which the gov^t we are to form will have, not only on the present generation of our people & their multiplied posterity, but on the whole globe, he was lost in the magnitude of the object. the project of henry the 4^{th} & his statesmen was but the picture in miniature of the great portrait to be exhibited. he was opposed to an election by the state legislatures. in explaining his reasons it was necessary to observe the twofold relation in which the people would stand, 1. as citizens of the gen^l gov^t 2. as citizens of their particular state. the gen^l gov^t was meant for them in the first capacity: the state gov^{ts} in the second. both gov^{ts} were derived from the people--both meant for the people--both therefore ought to be regulated on the same principles. the same train of ideas which belonged to the relation of the citizens to their state gov^{ts} were applicable to their relation to the gen^l gov^t and in forming the latter, we ought to proceed, by abstracting as much as possible from the idea of the state gov^{ts}. with respect to the province & object of the gen^l gov^t they should be considered as having no existence. the election of the 2^d branch by the legislatures, will introduce & cherish local interests & local prejudices. the gen^l gov^t is not an assemblage of states, but of individuals for certain political purposes--it is not meant for the states, but for the individuals composing them; the _individuals_ therefore not the _states_, ought to be represented in it: a proportion in this representation can be preserved in the 2^d as well as in the 1^{st} branch; and the election can be made by electors chosen by the people for that purpose. he moved an amendment to that effect which was not seconded. m^r elseworth saw no reason for departing from the mode contained in the report. whoever chooses the member, he will be a citizen of the state he is to represent & will feel the same spirit & act the same part whether he be appointed by the people or the legislature. every state has its particular views & prejudices, which will find their way into the general councils, through whatever channel they may flow. wisdom was one of the characteristics which it was in contemplation to give the second branch. would not more of it issue from the legislatures; than from an immediate election by the people. he urged the necessity of maintaining the existence, & agency of the states. without their co-operation it would be impossible to support a republican gov^t over so great an extent of country. an army could scarcely render it practicable. the largest states are the worst governed. virg^a is obliged to acknowledge her incapacity to extend her gov^t to kentuckey. mass^{ts} cannot keep the peace one hundred miles from her capitol and is now forming an army for its support. how long pen^a may be free from a like situation cannot be foreseen. if the principles & materials of our gov^t are not adequate to the extent of these single states; how can it be imagined that they can support a single gov^t throughout the u. states. the only chance of supporting a gen^l gov^t lies in grafting it on that of the individual states. doc^r johnson urged the necessity of preserving the state gov^{ts} which would be at the mercy of the gen^l gov^t on m^r wilson's plan. m^r madison thought it w^d obviate difficulty if the present resol: were postponed, & the 8{th} taken up, which is to fix the right of suffrage in the 2^d branch. doc^r williamson professed himself a friend to such a system as would secure the existence of the state gov^{ts}. the happiness of the people depended on it. he was at a loss to give his vote as to the senate untill he knew the number of its members. in order to ascertain this, he moved to insert these words after "2^d branch of the nat^l legislature"--"who shall bear such proportion to the n^o of the 1^{st} branch as 1 to ----." he was not seconded. m^r mason. it has been agreed on all hands that an efficient gov^t is necessary that to render it such it ought to have the faculty of self defence, that to render its different branches effectual each of them ought to have the same power of self defence. he did not wonder that such an agreement should have prevailed in these points. he only wondered that there should be any disagreement about the necessity of allowing the state gov^{ts} the same self-defence. if they are to be preserved as he conceived to be essential, they certainly ought to have this power. and the only mode left of giving it to them, was by allowing them to appoint the 2^d branch of the nat^l legislature. m^r butler observing that we were put to difficulties at every step by the uncertainty whether an equality or a ratio of representation w^d prevail finally in the 2^d branch, moved to postpone the 4^{th} resol: & to proceed to the resol: on that point. m^r madison seconded him. on the question mass^{ts} no. con^t no. n. y. ay. n. j. no. p^a no. del. no. m{d.} no. v^a ay. n. c. no. s. c. ay. geo. ay. on a question to postpone the 4 and take up the 7 resol: ays, mary^d v^a n. c. s. c. geo;--noes, mass. c^t n. y. n. j. p^a del: on the question to agree "that the members of the 2^d branch be chosen by the indiv^l legislatures" mass^{ts} ay. con^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay.[108] [108] madison's note: it must be kept in view that the largest states particularly pennsylvania & virginia always considered the choice of the 2^d branch by the state legislatures as opposed to a proportional representation to which they were attached as a fundamental principle of just government. the smaller states who had opposite views, were reinforced by the members from the large states most anxious to secure the importance of the state governments. on a question on the clause requiring the age of 30 years at least,--it was agreed to unanimously: on a question to strike out the words, "sufficient to ensure their independency" after the word "term" it was agreed to. that the 2^d branch hold their offices for a term of seven years, considered. m^r ghorum suggests a term of "4 years," 1/4 to be elected every year. m^r randolph, supported the idea of rotation, as favorable to the wisdom & stability of the corps, which might possibly be always sitting, and aiding the executive. and moves after "7 years," to add, "to go out in fixt proportion" which was agreed to. m^r williamson suggests "6 years," as more convenient for rotation than 7 years. m^r sherman seconds him. m^r reed proposed that they s^d hold their offices "during good behaviour." mr. r. morris seconds him. gen^l pinkney, proposed "4 years." a longer term w^d fix them at the seat of gov^t. they w^d acquire an interest there, perhaps transfer their property & lose sight of the states they represent. under these circumstances the distant states w^d labour under great disadvantages.[109] [109] according to yates, madison followed pinckney: "mr. madison. we are proceeding in the same manner that was done when the confederation was first formed. its original draft was excellent, but in its progress and completion it became so insufficient as to give rise to the present convention. by the vote already taken, will not the temper of the state legislatures transfuse itself into the senate? do we create a free government?"--yates, _secret proceedings_, etc., 168. m^r sherman moved to strike out "7 years" in order to take questions on the several propositions. on the question to strike out "seven" mass^{ts} ay. con^t ay. n. y. ay. n. j. ay. p^a no. del. no. m^d div^d. v^a no. n. c. ay. s. c. ay. geo. ay. on the question to insert "6 years", which failed 5 st^s being ay. 5 no, & 1 divided mass^{ts} no. con^t ay. n. y. no. n. j. no. p^a ay. del. ay. m^d div^d. v^a ay. n. c. ay. s. c. no. geo. no. on a motion to adjourn, the votes were 5 for 5 ag^{st} it & 1 divided,--con. n. j. p^a del. v^a ay. mass^{ts} n. y. n. c. s. c. geo: no. mary^d divided. on the question for "5 years" it was lost. mass^{ts} no. con^t ay. n. y. no. n. j. no. p^a ay. del. ay. m^d div^d. v^a ay. n. c. ay. s. c. no. geo. no. adj^d. tuesday, june 26. in convention the duration of the 2^d branch under consideration. m^r ghorum moved to fill the blank with "six years," one third of the members to go out every second year. m^r wilson 2^{ded} the motion. gen^l pinkney opposed six years in favor of four years. the states he said had different interests. those of the southern, and of s. carolina in particular were different from the northern. if the senators should be appointed for a long term, they w^d settle in the state where they exercised their functions; and would in a little time be rather the representatives of that than of the state appoint^g them. m^r reed mov^d that the term be nine years. this w^d admit of a very convenient rotation, one third going out triennially. he w^d still prefer "during good behaviour," but being little supported in that idea, he was willing to take the longest term that could be obtained. m^r broome 2^{ded} the motion. m^r madison. in order to judge of the form to be given to this institution, it will be proper to take a view of the ends to be served by it. these were first to protect the people ag^{st} their rulers; secondly to protect the people ag^{st} the transient impressions into which they themselves might be led. a people deliberating in a temperate moment, and with the experience of other nations before them, on the plan of gov^t most likely to secure their happiness, would first be aware, that those charg^d with the public happiness might betray their trust. an obvious precaution ag^{st} this danger w^d be to divide the trust between different bodies of men, who might watch & check each other. in this they w^d be governed by the same prudence which has prevailed in organizing the subordinate departments of gov^t, where all business liable to abuses is made to pass thro' separate hands, the one being a check on the other. it w^d next occur to such people, that they themselves were liable to temporary errors, thro' want of information as to their true interest, and that men chosen for a short term, & employed but a small portion of that in public affairs, might err from the same cause. this reflection w^d naturally suggest that the gov^t be so constituted as that one of its branches might have an opp^y of acquiring a competent knowledge of the public interests. another reflection equally becoming a people on such an occasion, w^d be that they themselves, as well as a numerous body of representatives, were liable to err also, from fickleness and passion. a necessary fence ag^{st} this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose ag^{st} impetuous councils. it ought finally to occur to a people deliberating on a gov^t for themselves, that as different interests necessarily result from the liberty meant to be secured, the major interest might under sudden impulses be tempted to commit injustice on the minority. in all civilized countries the people fall into different classes hav^g a real or supposed difference of interests. there will be creditors & debtors; farmers, merch^{ts} & manufacturers. there will be particularly the distinction of rich & poor. it was true as had been observ^d (by m^r pinkney) we had not among us those hereditary distinctions, of rank which were a great source of the contests in the ancient gov^{ts} as well as the modern states of europe, nor those extremes of wealth or poverty which characterize the latter. we cannot however be regarded even at this time, as one homogeneous mass, in which every thing that affects a part will affect in the same manner the whole. in framing a system which we wish to last for ages, we sh^d not lose sight of the changes which ages will produce. an increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, & secretly sigh for a more equal distribution of its blessings. these may in time outnumber those who are placed above the feelings of indigence. according to the equal laws of suffrage, the power will slide into the hands of the former. no agrarian attempts have yet been made in this country, but symptoms, of a levelling spirit, as we have understood, have sufficiently appeared in certain quarters, to give notice of the future danger. how is this danger to be guarded ag^{st} on the republican principles? how is the danger in all cases of interested coalitions to oppress the minority to be guarded ag^{st}? among other means by the establishment of a body in the gov^t sufficiently respectable for its wisdom & virtue, to aid on such emergencies, the preponderance of justice by throwing its weight into that scale. such being the objects of the second branch in the proposed gov^t he thought a considerable duration ought to be given to it. he did not conceive that the term of nine years could threaten any real danger; but in pursuing his particular ideas on the subject, he should require that the long term allowed to the 2^d branch should not commence till such a period of life, as would render a perpetual disqualification to be re-elected little inconvenient either in a public or private view. he observed that as it was more than probable we were now digesting a plan which in its operation w^d decide for ever the fate of republican gov^t we ought not only to provide every guard to liberty that its preservation c^d require, but be equally careful to supply the defects which our own experience had particularly pointed out. m^r sherman. gov^t is instituted for those who live under it. it ought therefore to be so constituted as not to be dangerous to their liberties. the more permanency it has the worse if it be a bad gov^t. frequent elections are necessary to preserve the good behavior of rulers. they also tend to give permanency to the government, by preserving that good behavior, because it ensures their re-election. in connecticut elections have been very frequent, yet great stability & uniformity both as to persons & measures have been experienced from its original establishm^t to the present time; a period of more than a 130 years. he wished to have provision made for steadiness & wisdom in the system to be adopted; but he thought six or four years would be sufficient. he sh^d be content with either. m^r read wished it to be considered by the small states that it was their interest that we should become one people as much as possible; that state attachments sh^d be extinguished as much as possible; that the senate, sh^d be so constituted as to have the feelings of citizens of the whole. m^r hamilton. he did not mean to enter particularly into the subject. he concurred with m^r madison in thinking we were now to decide forever the fate of republican government; and that if we did not give to that form due stability and wisdom, it would be disgraced & lost among ourselves, disgraced & lost to mankind forever. he acknowledged himself not to think favorably of republican government; but addressed his remarks to those who did think favorably of it, in order to prevail on them to tone their government as high as possible. he professed himself to be as zealous an advocate for liberty as any man whatever, and trusted he should be as willing a martyr to it though he differed as to the form in which it was most eligible.--he concurred also in the general observations of (m^r madison) on the subject, which might be supported by others if it were necessary. it was certainly true that nothing like an equality of property existed; that an inequality would exist as long as liberty existed, and that it would unavoidably result from that very liberty itself. this inequality of property constituted the great & fundamental distinction in society. when the tribunitial power had levelled the boundary between the _patricians_ & _plebeians_, what followed? the distinction between rich & poor was substituted. he meant not however to enlarge on the subject. he rose principally to remark that (m^r sherman) seemed not to recollect that one branch of the proposed gov^t was so formed, as to render it particularly the guardians of the poorer orders of citizens; nor to have adverted to the true causes of the stability which had been exemplified in con^t. under the british system as well as the federal, many of the great powers appertaining to gov^t particularly all those relating to foreign nations were not in the hands of the gov^t there. their internal affairs also were extremely simple, owing to sundry causes many of which were peculiar to that country. of late the governm^t had entirely given way to the people, and had in fact suspended many of its ordinary functions in order to prevent those turbulent scenes which had appeared elsewhere. he asks m^r s. whether the state at this time dare impose & collect a tax on y^e people? to these causes & not to the frequency of elections, the effect as far as it existed ought to be chiefly ascribed. m^r gerry, wished we could be united in our ideas concerning a permanent gov^t. all aim at the same end, but there are great differences as to the means. one circumstance he thought should be carefully attended to. there was not 1/1000 part of our fellow citizens who were not ag^{st} every approach towards monarchy. will they ever agree to a plan which seems to make such an approach. the convention ought to be extremely cautious in what they hold out to the people. whatever plan may be proposed will be espoused with warmth by many out of respect to the quarter it proceeds from as well as from an approbation of the plan itself. and if the plan should be of such a nature as to rouse a violent opposition, it is easy to foresee that discord & confusion will ensue, and it is even possible that we may become a prey to foreign powers. he did not deny the position of m^r madison, that the majority will generally violate justice when they have an interest in so doing: but did not think there was any such temptation in this country. our situation was different from that of g. britain; and the great body of lands yet to be parcelled out & settled would very much prolong the difference. notwithstanding the symptoms of injustice which had marked many of our public councils, they had not proceeded so far as not to leave hopes, that there would be a sufficient sense of justice & virtue for the purpose of gov^t. he admitted the evils arising from a frequency of elections; and would agree to give the senate a duration of four or five years. a longer term would defeat itself. it never would be adopted by the people. m^r wilson did not mean to repeat what had fallen from others, but w^d add an observation or two which he believed had not yet been suggested. every nation may be regarded in two relations 1 to its own citizens. 2 to foreign nations. it is therefore not only liable to anarchy & tyranny within, but has wars to avoid & treaties to obtain from abroad. the senate will probably be the depository of the powers concerning the latter objects. it ought therefore to be made respectable in the eyes of foreign nations. the true reason why g. britain has not yet listened to a commercial treaty with us has been, because she had no confidence in the stability or efficacy of our government. 9 years with a rotation, will provide these desirable qualities; and give our gov^t an advantage in this respect over monarchy itself. in a monarchy much must always depend on the temper of the man. in such a body, the personal character will be lost in the political. he w^d add another observation. the popular objection ag^{st} appointing any public body for a long term was that it might by gradual encroachments prolong itself first into a body for life, and finally become a hereditary one. it would be a satisfactory answer to this objection that as 1/3 would go out triennially, there would be always three divisions holding their places for unequal times, and consequently acting under the influence of different views, and different impulses.--on the question for 9 years, 1/3 to go out triennially, mass^{ts} no. con^t, no. n. y. no. n. j. no. p^a ay. del. ay. m^d no. v^a ay. n. c. no. s. c. no. geo. no. on the question for 6 years,[110] 1/3 to go out biennially mass^{ts} ay. con^t ay. n. y. no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. [110] yates has the question on _five_ years, but this is obviously a mistake.--yates, _secret proceedings_, etc., 172. "to receive fixt stipends by which they may be compensated for their services" considered. general pinkney proposed "that no salary should be allowed." as this (the senatorial) branch was meant to represent the wealth of the country, it ought to be composed of persons of wealth; and if no allowance was to be made the wealthy alone would undertake the service. he moved to strike out the clause. doct^r franklin seconded the motion. he wished the convention to stand fair with the people. there were in it a number of young men who would probably be of the senate. if lucrative appointments should be recommended we might be chargeable with having carved out places for ourselves. on the question,--mas^{ts} connecticut[111] p^a m^d s. carolina ay. n. y. n. j. del. virg^a n. c. geo. no. [111] quer. whether connecticut should not be, no. & delaware, ay.--madison's note. m^r williamson moved to change the expression into these words to wit "to receive a compensation for the devotion of their time to the public service." the motion was seconded by m^r elseworth, and agreed to by all the states except s. carol^a. it seemed to be meant only to get rid of the word "fixt" and leave greater room for modifying the provision on this point. m^r elseworth moved to strike out "to be paid out of the nat^l treasury" and insert "to be paid by their respective states." if the senate was meant to strengthen the gov^t it ought to have the confidence of the states. the states will have an interest in keeping up a representation, and will make such provision for supporting the members as will ensure their attendance. m^r madison considered this as a departure from a fundamental principle, and subverting the end intended by allowing the senate a duration of 6 years. they would if this motion should be agreed to, hold their places during pleasure; during the pleasure of the state legislatures. one great end of the institution was, that being a firm, wise and impartial body, it might not only give stability to the gen^l gov^t in its operations on individuals, but hold an even balance among different states. the motion would make the senate like congress, the mere agents & advocates of state interests & views, instead of being the impartial umpires & guardians of justice and the general good. cong^s had lately by the establishment of a board with full powers to decide on the mutual claims between the u. states & the individual states, fairly acknowledged themselves to be unfit for discharging this part of the business referred to them by the confederation. m^r dayton[112] considered the payment of the senate by the states as fatal to their independence, he was decided for paying them out of the nat^l treasury. [112] "cap. dayton is a young gentleman of talents, with ambition to exert them. he possesses a good education and some reading; he speaks well, and seems desirous of improving himself in oratory. there is an impetuosity in his temper that is injurious to him; but there is an honest rectitude about him that makes him a valuable member of society, and secures to him the esteem of all good men. he is about 30 years old, served with me a brother aid to general sullivan in the western expedition of '79."--pierce's notes, _am. hist. rev._, iii., 328. on the question for payment of the senate to be left to the states as moved by m^r elseworth. mass^{ts} no. con^t ay. n. y. ay. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. col. mason. he did not rise to make any motion, but to hint an idea which seemed to be proper for consideration. one important object in constituting the senate was to secure the rights of property. to give them weight & firmness for this purpose, a considerable duration in office was thought necess[~a]y. but a longer term than 6 years, would be of no avail in this respect, if needy persons should be appointed. he suggested therefore the propriety of annexing to the office a qualification of property. he thought this would be very practicable; as the rules of taxation would supply a scale for measuring the degree of wealth possessed by every man. a question was then taken whether the words "to be paid out of the public treasury," should stand. mass^{ts} ay. con^t no. n. y. no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. m^r butler moved to strike out the ineligibility of senators to _state offices_. mr. williamson seconded the motion.[113] [113] according to yates, before wilson spoke: "mr. madison. congress heretofore depended on state interests; we are now going to pursue the same plan."--yates, _secret proceedings_, etc., 173. m^r wilson remarked the additional dependance this w^d create in the senators on the states. the longer the time he observed allotted to the officer, the more compleat will be the dependance if it exists at all.[114] [114] after wilson, according to yates: "mr. butler. this second branch i consider as the aristocratic part of our government; and they must be controlled by the states, or they will be too independent."--yates, _secret proceedings_, etc., 173. gen^l pinkney was for making the states as much as could be conveniently done, a part of the gen^l gov^t. if the senate was to be appointed by the states, it ought in pursuance of the same idea to be paid by the states: and the states ought not to be barred from the opportunity of calling members of it into offices at home. such a restriction would also discourage the ablest men from going into the senate. m^r williamson moved a resolution so penned as to admit of the two following questions. 1. whether the members of the senate should be ineligible to & incapable of holding offices _under the u. states_ 2. whether &c. under the _particular states_. on the question to postpone in order to consider williamson's resol^n mas^{ts} no. con^t ay. n. y. no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gerry & m^r madison move to add to m^r williamson's 1. quest: "and for 1 year thereafter." on this amend^t mas^{ts} no. con^t ay. n. y. ay. n. j. no. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. on m^r will[iam]son's 1 question as amend^{ed} vz, inelig: & incapable &c. &c. for 1 year &c. ag^d to un[~a]mously. on the 2. question as to ineligibility &c. to state offices, mass. ay. c^t no. n. y. no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. the 5. resol: "that each branch have the right of originating acts," was agreed to nem. con. adj^d. wednesday june 27. in convention. m^r rutlidge moved to postpone the 6^{th} resolution, defining the powers of cong^s in order to take up the 7 & 8 which involved the most fundamental points; the rules of suffrage in the 2 branches which was agreed to nem. con. a question being proposed on the resol: 7; declaring that the suffrage in the first branch sh^d be according to an equitable ratio. m^r l. martin[115] contended at great length and with great eagerness that the general gov^t was meant merely to preserve the state govern^{ts} not to govern individuals: that its powers ought to be kept within narrow limits: that if too little power was given to it, more might be added; but that if too much, it could never be resumed: that individuals as such have little to do but with their own states; that the gen^l gov^t has no more to apprehend from the states composing the union, while it pursues proper measures, that gov^t over individuals has to apprehend from its subjects: that to resort to the citizens at large for their sanction to a new govern^t will be throwing them back into a state of nature; that the dissolution of the state gov^{ts} is involved in the nature of the process; that the people have no right to do this without the consent of those to whom they have delegated their power for state purposes: through their tongues only they can speak, through their ears, only can hear: that the states have shewn a good disposition to comply with the acts of cong^s, weak, contemptibly weak as that body has been; and have failed through inability alone to comply: that the heaviness of the private debts, and the waste of property during the war, were the chief causes of this inability; that he did not conceive the instances mentioned by m^r madison of compacts between v^a & m^d between p^a & n. j. or of troops raised by mass^{ts} for defence against the rebels, to be violations of the articles of confederation--that an equal vote in each state was essential to the federal idea, and was founded in justice & freedom, not merely in policy: that tho' the states may give up this right of sovereignty, yet they had not, and ought not: that the states like individuals were in a state of nature equally sovereign & free. in order to prove that individuals in a state of nature are equally free & independent he read passages from locke, vattel, lord summers--priestly. to prove that the case is the same with states till they surrender their equal sovereignty, he read other passages in locke & vattel, and also rutherford: that the states being equal cannot treat or confederate so as to give up an equality of votes without giving up their liberty: that the propositions on the table were a system of slavery for 10 states: that as v^a mass^{ts} & p^a have 42/90 of the votes they can do as they please without a miraculous union of the other ten: that they will have nothing to do, but to gain over one of the ten to make them compleat masters of the rest; that they can then appoint an execut^e & judiciary & legislate for them as they please: that there was & would continue a natural predilection & partiality in men for their own states; that the states, particularly the smaller, would never allow a negative to be exercised over their laws: that no state in ratifying the confederation had objected to the equality of votes; that the complaints at present run not ag^{st} this equality but the want of power: that 16 members from v^a would be more likely to act in concert than a like number formed of members from different states: that instead of a junction of the small states as a remedy, he thought a division of the large states would be more eligible.--this was the substance of a speech which was continued more than three hours. he was too much exhausted he said to finish his remarks, and reminded the house that he should tomorrow, resume them. [115] "mr. martin, the attorney-general from maryland, spoke on this subject upwards of three hours. as his arguments were too diffuse, and in many instances desultory, it was not possible to trace him through the whole, or to methodize his ideas into a systematic or argumentative arrangement."--yates, _secret proceedings_, etc., 174. adj^d. thursday june 28th. in convention m^r l. martin resumed his discourse,[116] contending that the gen^l gov^t ought to be formed for the states, not for individuals: that if the states were to have votes in proportion to their numbers of people, it would be the same thing whether their representatives were chosen by the legislatures or the people; the smaller states would be equally enslaved; that if the large states have the same interest with the smaller as was urged, there could be no danger in giving them an equal vote; they would not injure themselves, and they could not injure the large ones on that supposition without injuring themselves and if the interests, were not the same, the inequality of suffrage w^d be dangerous to the smaller states: that it will be in vain to propose any plan offensive to the rulers of the states, whose influence over the people will certainly prevent their adopting it: that the large states were weak at present in proportion to their extent; & could only be made formidable to the small ones, by the weight of their votes: that in case a dissolution of the union should take place, the small states would have nothing to fear from their power; that if in such a case the three great states should league themselves together, the other ten could do so too; & that he had rather see partial confederacies take place, than the plan on the table. this was the substance of the residue of his discourse which was delivered with much diffuseness & considerable vehemence. [116] yates gives martin's speech more fully: "on federal grounds, it is said, that a minority will govern a majority--but on the virginia plan a minority would tax a majority. in a federal government, a majority of states must and ought to tax. in the local government of states, counties may be unequal--still numbers, not property, govern. what is the government now forming, over states or persons? as to the latter, their rights cannot be the object of a general government. these are already secured by their guardians, the state governments. the general government is therefore intended only to protect and guard the rights of the states as states. "this general government, i believe, is the first upon earth which gives checks against democracies or aristocracies. the only necessary check in a general government ought to be a restraint to prevent its absorbing the powers of the state governments. representation on federal principles can only flow from state societies. representation and taxation are ever inseparable--not according to the quantum of property, but the quantum of freedom. "will the representatives of a state forget state interests? the mode of election cannot change it. these prejudices cannot be eradicated--your general government cannot be just or equal upon the virginia plan, unless you abolish state interests. if this cannot be done, you must go back to principles purely federal. "on this latter ground, the state legislatures and their constituents will have no interests to pursue different from the general government, and both will be interested to support each other. under these ideas can it be expected that the people can approve the virginia plan? but it is said, the people, not the state legislatures, will be called upon for approbation--with an evident design to separate the interests of the governors from the governed. what must be the consequence? anarchy and confusion. we lose the ideas of the powers with which we are intrusted. the legislatures must approve. by them it must, on your own plan, be laid before the people. how will such a government, over so many great states, operate. wherever new settlements have been formed in large states, they immediately want to shake off their independency. why? because the government is too remote for their good. the people want it nearer home. "the basis of all ancient and modern confederacies is the freedom and the independency of the states composing it. the states forming the amphictionic council were equal, though lacedemon, one of the greatest states, attempted the exclusion of three of the lesser states from this right. the plan reported, it is true, only intends to diminish those rights, not to annihilate them--it was the ambition and power of the great grecian states which at last ruined this respectable council. the states as societies are ever respectful. has holland or switzerland ever complained of the equality of the states which compose their respective confederacies? bern and zurich are larger than the remaining eleven cantons--so of many of the states of germany; and yet their governments are not complained of. bern alone might usurp the whole power of the helvetic confederacy, but she is contented still with being equal. "the admission of the larger states into the confederation, on the principle of equality, is dangerous--but on the virginia system it is ruinous and destructive. still it is the true interest of all the states to confederate--it is their joint efforts which must protect and secure us from foreign danger, and give us peace and harmony at home. "(here mr. martin entered into a detail of the comparative powers of each state, and stated their probable weakness and strength.) "at the beginning of our troubles with great britain, the smaller states were attempted to be cajoled to submit to the views of that nation, lest the larger states should usurp their rights. we then answered them--your present plan is slavery, which on the remote prospect of a distant evil, we will not submit to. "i would rather confederate with any single state, than submit to the virginia plan. but we are already confederated, and no power on earth can dissolve it but by the consent of _all_ the contracting powers--and four states, on this floor, have already declared their opposition to annihilate it. is the old confederation dissolved, because some of the states wish a new confederation?"--yates, _secret proceedings_, etc., 177. m^r lansing & m^r dayton moved to strike out "not," so that the 7 art. might read that the rights of suffrage in the 1^{st} branch ought to be according to the rule established by the confederation." m^r dayton expressed great anxiety that the question might not be put till tomorrow; govern^r livingston being kept away by indisposition, and the representation of n. jersey thereby suspended. m^r williamson, thought that if any political truth could be grounded on mathematical demonstration, it was that if the states were equally sovereign now, and parted with equal proportions of sovereignty, that they would remain equally sovereign. he could not comprehend how the smaller states would be injured in the case, and wished some gentleman would vouchsafe a solution of it. he observed that the small states, if they had a plurality of votes would have an interest in throwing the burdens off their own shoulders on those of the large ones. he begged that the expected addition of new states from the westward might be kept in view. they would be small states, they would be poor states, they would be unable to pay in proportion to their numbers; their distance from market rendering the produce of their labour less valuable; they would consequently be tempted to combine for the purpose of laying burdens on com[~m]erce & consumption which would fall with greatest weight on the old states. m^r madison, s^d he was much disposed to concur in any expedient not inconsistent with fundamental principles, that could remove the difficulty concerning the rule of representation. but he could neither be convinced that the rule contended for was just, nor necessary for the safety of the small states ag^{st} the large states. that it was not just, had been conceded by m^r breerly & m^r paterson themselves. the expedient proposed by them was a new partition of the territory of the u. states. the fallacy of the reasoning drawn from the equality of sovereign states in the formation of compacts, lay in confounding together mere treaties, in which were specified certain duties to which the parties were to be bound, and certain rules by which their subjects were to be reciprocally governed in their intercourse, with a compact by which an authority was created paramount to the parties, & making laws for the government of them. if france, england & spain were to enter into a treaty for the regulation of commerce &c. with the prince of monacho & 4 or 5 other of the smallest sovereigns of europe, they would not hesitate to treat as equals, and to make the regulations perfectly reciprocal. w^d the case be the same, if a council were to be formed of deputies from each with authority and discretion, to raise money, levy troops, determine the value of coin &c.? would 30 or 40, million of people submit their fortunes into the hands of a few thousands? if they did it would only prove that they expected more from the terror of their superior force, than they feared from the selfishness of their feeble associates. why are counties of the same states represented in proportion to their numbers? is it because the representatives are chosen by the people themselves? so will be the representatives in the nation^l legislature. is it because, the larger have more at stake than the smaller? the case will be the same with the larger & smaller states. is it because the laws are to operate immediately on their persons & properties? the same is the case in some degree as the articles of confederation stand; the same will be the case in a far greater degree, under the plan proposed to be substituted. in the cases of captures, of piracies, and of offences in a federal army, the property & persons of individuals depend on the laws of cong^s. by the plan proposed a compleat power of taxation, the highest prerogative of supremacy is proposed to be vested in the national gov^t. many other powers are added which assimilate it to the gov^t of individual states. the negative proposed on the state laws, will make it an essential branch of the state legislatures & of course will require that it should be exercised by a body established on like principles with the other branches of those legislatures.--that it is not necess[~a]y to secure the small states ag^{st} the large ones he conceived to be equally obvious: was a combination of the large ones dreaded? this must arise either from some interest common to v^a mass^{ts} & p^a & distinguishing them from the other states, or from the mere circumstance of similarity of size. did any such common interest exist? in point of situation they could not have been more effectually separated from each other by the most jealous citizen of the most jealous state. in point of manners, religion, and the other circumstances which sometimes beget affection between different communities, they were not more assimilated than the other states--in point of the staple productions they were as dissimilar as any three other states in the union. the staple of mass^{ts} was _fish_, of p^a _flower_, of v^a _tob^o_. was a combination to be apprehended from the mere circumstance of equality of size? experience suggested no such danger. the journals of cong^s did not present any peculiar association of these states in the votes recorded. it had never been seen that different counties in the same state, conformable in extent, but disagreeing in other circumstances, betrayed a propensity to such combinations. experience rather taught a contrary lesson. among individuals of superior eminence & weight in society, rivalships were much more frequent than coalitions. among independent nations, pre-eminent over their neighbours, the same remark was verified. carthage & rome tore one another to pieces instead of uniting their forces to devour the weaker nations of the earth. the houses of austria & france were hostile as long as they remained the greatest powers of europe. england & france have succeeded to the pre-eminence & to the enmity. to this principle we owe perhaps our liberty. a coalition between those powers would have been fatal to us. among the principal members of antient & modern confederacies, we find the same effect from the same cause. the contentions, not the coalitions of sparta, athens & thebes, proved fatal to the smaller members of the amphyctionic confederacy. the contentions, not the combinations of prussia & austria, have distracted & oppressed the german empire. were the large states formidable _singly_ to their smaller neighbours? on this supposition the latter ought to wish for such a general gov^t as will operate with equal energy on the former as on themselves. the more lax the band, the more liberty the larger will have to avail themselves of their superior force. here again experience was an instructive monitor. what is y^e situation of the weak compared with the strong in those stages of civilization in which the violence of individuals is least controuled by an efficient government? the heroic period of antient greece, the feudal licentiousness of the middle ages of europe, the existing condition of the american savages, answer this question. what is the situation of the minor sovereigns in the great society of independent nations, in which the more powerful are under no controul but the nominal authority of the law of nations? is not the danger to the former exactly in proportion to their weakness. but there are cases still more in point. what was the condition of the weaker members of the amphyctionic confederacy. plutarch (life of themistocles) will inform us that it happened but too often that the strongest cities corrupted & awed the weaker, and that judgment went in favor of the more powerful party. what is the condition of the lesser states in the german confederacy? we all know that they are exceedingly trampled upon: and that they owe their safety as far as they enjoy it, partly to their enlisting themselves, under the rival banners of the pre-eminent members, partly to alliances with neighbouring princes which the constitution of the empire does not prohibit. what is the state of things in the lax system of the dutch confederacy? holland contains about 1/2 the people, supplies about 1/2 of the money, and by her influence, silently & indirectly governs the whole republic. in a word; the two extremes before us are a perfect separation & a perfect incorporation, of the 13 states. in the first case they would be independent nations subject to no law, but the law of nations. in the last, they would be mere counties of one entire republic, subject to one common law. in the first case the smaller states would have every thing to fear from the larger. in the last they would have nothing to fear. the true policy of the small states therefore lies in promoting those principles & that form of gov^t which will most approximate the states to the condition of counties. another consideration may be added. if the gen^l gov^t be feeble, the large states distrusting its continuance, and foreseeing that their importance & security may depend on their own size & strength, will never submit to a partition. give to the gen^l gov^t sufficient energy & permanency, & you remove the objection. gradual partitions of the large, & junctions of the small states will be facilitated, and time may effect that equalization, which is wished for by the small states now, but can never be accomplished at once. m^r wilson. the leading argument of those who contend for equality of votes among the states is that the states as such being equal, and being represented not as districts of individuals, but in their political & corporate capacities, are entitled to an equality of suffrage. according to this mode of reasoning the representation of the boroughs in engl[~d] which has been allowed on all hands to be the rotten part of the constitution, is perfectly right & proper. they are like the states represented in their corporate capacity like the states therefore they are entitled to equal voices, old sarum to as many as london. and instead of the injury supposed hitherto to be done to london, the true ground of complaint lies with old sarum: for london instead of two which is her proper share, sends four representatives to parliament.[117] [117] according to king's notes, charles pinckney spoke after madison: "_charles pinckney._ the honors & offices may become the objects of strong desire and of combination to acquire them. if representatives be apportioned among the states in the ratio of numbers, the citizens will be free and equal but the states will be unequal, and their sovereignty will be degraded."--king's _life and correspondence of rufus king_, i., 610. m^r sherman. the question is not what rights naturally belong to man; but how they may be most equally & effectually guarded in society. and if some give up more than others in order to obtain this end, there can be no room for complaint. to do otherwise, to require an equal concession from all, if it would create danger to the rights of some, would be sacrificing the end to the means. the rich man who enters into society along with the poor man, gives up more than the poor man, yet with an equal vote he is equally safe. were he to have more votes than the poor man in proportion to his superior stake the rights of the poor man would immediately cease to be secure. this consideration prevailed when the articles of confederation were formed.[118] [118] according to yates, madison followed sherman: "mr. madison. there is danger in the idea of the gentleman from connecticut. unjust representation will ever produce it. in the united netherlands, holland governs the whole, although she has only one vote. the counties in virginia are exceedingly disproportionate, and yet the smaller has an equal vote with the greater, and no inconvenience arises."--yates, _secret proceedings_, etc., 182. the determination of the question from striking out the word "not" was put off till tomorrow at the request of the deputies of n. york. doc^r franklin. m^r president. the small progress we have made after 4 or five weeks close attendance & continual reasonings with each other--our different sentiments on almost every question, several of the last producing as many noes as ays, is methinks a melancholy proof of the imperfection of the human understanding. we indeed seem to feel our own want of political wisdom, since we have been running about in search of it. we have gone back to ancient history for models of government, and examined the different forms of those republics which having been formed with the seeds of their own dissolution now no longer exist. and we have viewed modern states all round europe, but find none of their constitutions suitable to our circumstances. in this situation of this assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, sir, that we have not hitherto once thought of humbly applying to the father of lights to illuminate our understandings? in the beginning of the contest with g. britain, when we were sensible of danger we had daily prayer in this room for the divine protection.--our prayers, sir, were heard, & they were graciously answered. all of us who were engaged in the struggle must have observed frequent instances of a superintending providence in our favor. to that kind providence we owe this happy opportunity of consulting in peace on the means of establishing our future national felicity. and have we now forgotten that powerful friend? or do we imagine that we no longer need his assistance? i have lived, sir, a long time, and the longer i live, the more convincing proofs i see of this truth--_that god governs in the affairs of men_. and if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? we have been assured, sir, in the sacred writings that "except the lord build the house they labour in vain that build it." i firmly believe this; and i also believe that without his concurring aid we shall succeed in this political building no better than the builders of babel: we shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and bye word down to future ages. and what is worse, mankind may hereafter from this unfortunate instance, despair of establishing governments by human wisdom and leave it to chance, war and conquest. i therefore beg leave to move--that henceforth prayers imploring the assistance of heaven, and its blessings on our deliberations, be held in this assembly every morning before we proceed to business, and that one or more of the clergy of this city be requested to officiate in that service-m^r sherman seconded the motion. m^r hamilton & several others expressed their apprehensions that however proper such a resolution might have been at the beginning of the convention, it might at this late day, 1. bring on it some disagreeable animadversions, & 2. lead the public to believe that the embarrassments and dissensions within the convention, had suggested this measure. it was answered by doc^r f. m^r sherman & others, that the past omission of a duty could not justify a further omission--that the rejection of such a proposition would expose the convention to more unpleasant animadversions than the adoption of it: and that the alarm out of doors that might be excited for the state of things within, would at least be as likely to do good as ill. m^r williamson, observed that the true cause of the omission could not be mistaken. the convention had no funds. m^r randolph proposed in order to give a favorable aspect to y^e measure, that a sermon be preached at the request of the convention on 4^{th} of july, the anniversary of independence; & thenceforward prayers be used in y^e convention every morning. d^r frank^n 2^{ded} this motion. after several unsuccessful attempts for silently postponing this matter by adjourn^g the adjournment was at length carried, without any vote on the motion. friday june 29^{th} in convention. doc^r johnson. the controversy must be endless whilst gentlemen differ in the grounds of their arguments; those on one side considering the states as districts of people composing one political society; those on the other considering them as so many political societies. the fact is that the states do exist as political societies, and a gov^t is to be formed for them in their political capacity, as well as for the individuals composing them. does it not seem to follow, that if the states as such are to exist they must be armed with some power of self-defence. this is the idea of (col. mason) who appears to have looked to the bottom of this matter. besides the aristocratic and other interests, which ought to have the means of defending themselves, the states have their interests as such, and are equally entitled to like means. on the whole he thought that as in some respects the states are to be considered in their political capacity, and in others as districts of individual citizens the two ideas embraced on different sides, instead of being opposed to each other, ought to be combined; that in _one_ branch the _people_, ought to be represented, in the _other_ the _states_. m^r ghoram. the states as now confederated have no doubt a right to refuse to be consolidated, or to be formed into any new system. but he wished the small states which seemed most ready to object, to consider which are to give up most, they or the larger ones. he conceived that a rupture of the union w^d be an event unhappy for all, but surely the large states would be least unable to take care of themselves, and to make connections with one another. the weak therefore were most interested in establishing some general system for maintaining order. if among individuals, composed partly of weak, and partly of strong, the former most need the protection of law & government, the case is exactly the same with weak & powerful states. what would be the situation of delaware (for these things he found must be spoken out, & it might as well be done at first as last) what w^d be the situation of delaware in case of a separation of the states? would she not be at the mercy of pennsylvania? would not her true interest lie in being consolidated with her, and ought she not now to wish for such a union with p^a under one gov^t as will put it out of the power of pen^a to oppress her? nothing can be more ideal than the danger apprehended by the states from their being formed into one nation. mass^{ts} was originally three colonies, viz old mass^{ts} plymouth--& the province of mayne. these apprehensions existed then. an incorporation took place; all parties were safe & satisfied; and every distinction is now forgotten. the case was similar with connecticut & new haven. the dread of union was reciprocal; the consequence of it equally salutary and satisfactory. in like manner n. jersey has been made one society out of two parts. should a separation of the states take place, the fate of n. jersey w^d be worst of all. she has no foreign commerce & can have but little. p^a & n. york will continue to levy taxes on her consumption. if she consults her interest she w^d beg of all things to be annihilated. the apprehensions of the small states ought to be appeased by another reflection mass^{ts} will be divided. the province of maine is already considered as approaching the term of its annexation to it; and p^a will probably not increase, considering the present state of her population, & other events that may happen. on the whole he considered a union of the states as necessary to their happiness, & a firm gen^l gov^t as necessary to their union. he sh^d consider it as his duty if his colleagues viewed the matter in the same light he did to stay here as long as any other state would remain with them, in order to agree on some plan that could with propriety be recommended to the people. m^r elseworth, did not despair. he still trusted that some good plan of gov^t w^d be devised & adopted. m^r read. he sh^d have no objection to the system if it were truly national, but it has too much of a federal mixture in it. the little states he thought had not much to fear. he suspected that the large states felt their want of energy, & wished for a gen^l gov^t to supply the defect. mass^{ts} was evidently labouring under her weakness and he believed delaware w^d not be in much danger if in her neighbourhood. delaware had enjoyed tranquillity & he flattered himself w^d continue to do so. he was not however so selfish as not to wish for a good gen^l gov^t. in order to obtain one the whole states must be incorporated. if the states remain, the representatives of the large ones will stick together, and carry everything before them. the executive also will be chosen under the influence of this partiality, and will betray it in his administration. these jealousies are inseparable from the scheme of leaving the states in existence. they must be done away. the ungranted lands also which have been assumed by particular states must also be given up. he repeated his approbation of the plan of m^r hamilton, & wished it to be substituted in the place of that on the table. m^r madison agreed with doc^r johnson, that the mixed nature of the gov^t ought to be kept in view; but thought too much stress was laid on the rank of the states as political societies. there was a gradation, he observed from the smallest corporation, with the most limited powers, to the largest empire with the most perfect sovereignty. he pointed out the limitations on the sovereignty of the states, as now confederated their laws in relation to the paramount law of the confederacy were analagous to that of bye laws to the supreme law within a state. under the proposed gov^t the powers of the states will be much farther reduced. according to the views of every member, the gen^l gov^t will have powers far beyond those exercised by the british parliament, when the states were part of the british empire. it will in particular have the power, without the consent of the state legislatures, to levy money directly on the people themselves; and therefore not to divest such _unequal_ portions of the people as composed the several states, of an _equal_ voice, would subject the system to the reproaches & evils which have resulted from the vicious representation in g. b. he entreated the gentlemen representing the small states to renounce a principle w^{ch} was confessedly unjust, which c^d never be admitted, & if admitted must infuse mortality into a constitution which we wished to last forever. he prayed them to ponder well the consequences of suffering the confederacy to go to pieces. it had been s^d that the want of energy in the large states w^d be a security to the small. it was forgotten that this want of energy proceeded from the supposed security of the states ag^{st} all external danger. let each state depend on itself for its security, & let apprehensions arise of danger, from distant powers or from neighbouring states, & the languishing condition of all the states, large as well as small, w^d soon be transformed into vigorous & high toned gov^{ts}. his great fear was that their gov^{ts} w^d then have too much energy, that these might not only be formidable in the large to the small states, but fatal to the internal liberty of all. the same causes which have rendered the old world the theatre of incessant wars, & have banished liberty from the face of it, w^d soon produce the same effects here. the weakness & jealousy of the small states w^d quickly introduce some regular military force ag^{st} sudden danger from their powerful neighbours. the example w^d be followed by others, and w^d soon become universal. in time of actual war, great discretionary powers are constantly given to the executive magistrate. constant apprehension of war, has the same tendency to render the head too large for the body. a standing military force, with an overgrown executive will not long be safe companions to liberty. the means of defence ag^{st} foreign danger, have been always the instruments of tyranny at home. among the romans it was a standing maxim to excite a war, whenever a revolt was apprehended. throughout all europe, the armies kept up under the pretext of defending, have enslaved the people. it is perhaps questionable, whether the best concerted system of absolute power in europe c^d maintain itself, in a situation, where no alarms of external danger c^d tame the people to the domestic yoke. the insular situation of g. britain was the principal cause of her being an exception to the general fate of europe. it has rendered less defence necessary, and admitted a kind of defence w^{ch} c^d not be used for the purpose of oppression.--these consequences he conceived ought to be apprehended whether the states should run into a total separation from each other, or sh^d enter into partial confederacies. either event w^d be truly deplorable; & those who might be accessary to either, could never be forgiven by their country, nor by themselves. [119]m^r hamilton observed that individuals forming political societies modify their rights differently with regard to suffrage. examples of it are found in all the states. in all of them some individuals are deprived of the right altogether, not having the requisite qualification of property. in some of the states the right of suffrage is allowed in some cases and refused in others. to vote for a member in one branch, a certain quantum of property, to vote for a member in another branch of the legislature, a higher quantum of property is required. in like manner states may modify their right of suffrage differently, the larger exercising a larger, the smaller a smaller share of it. but as states are a collection of individual men which ought we to respect most, the rights of the people composing them, or of the artificial beings resulting from the composition. nothing could be more preposterous or absurd than to sacrifice the former to the latter. it has been s^d that if the smaller states renounce their _equality_, they renounce at the same time their _liberty_. the truth is it is a contest for power, not for liberty. will the men composing the small states be less free than those composing the larger. the state of delaware having 40,000 souls will _lose power_, if she has 1/10 only of the votes allowed to p^a having 400,000: but will the people of del: _be less free_, if each citizen has an equal vote with each citizen of p^a he admitted that common residence within the same state would produce a certain degree of attachment; and that this principle might have a certain influence in public affairs. he thought however that this might by some precautions be in a great measure excluded: and that no material inconvenience could result from it, as there could not be any ground for combination among the states whose influence was most dreaded. the only considerable distinction of interests, lay between the carrying & non-carrying states, which divides instead of uniting the largest states. no considerable inconvenience had been found from the division of the state of n. york into different districts of different sizes. [119] from this date he was absent till the ---of ----.--madison's note. some of the consequences of a dissolution of the union, and the establishment of partial confederacies, had been pointed out. he would add another of a most serious nature. alliances will immediately be formed with different rival & hostile nations of europes, who will foment disturbances among ourselves, and make us parties to all their own quarrels. foreign nations having american dominion are & must be jealous of us. their representatives betray the utmost anxiety for our fate, & for the result of this meeting, which must have an essential influence on it.--it had been said that respectability in the eyes of foreign nations was not the object at which we aimed; that the proper object of republican government was domestic tranquillity & happiness. this was an ideal distinction. no government could give us tranquillity & happiness at home, which did not possess sufficient stability and strength to make us respectable abroad. this was the critical moment for forming such a government. we should run every risk in trusting to future amendments. as yet we retain the habits of union. we are weak & sensible of our weakness. henceforward the motives will become feebler, and the difficulties greater. it is a miracle that we were now here exercising our tranquil & free deliberations on the subject. it would be madness to trust to future miracles. a thousand causes must obstruct a reproduction of them. m^r pierce considered the equality of votes under the confederation as the great source of the public difficulties. the members of cong^s were advocates for local advantages. state distinctions must be sacrificed as far as the general good required, but without destroying the states. tho' from a small state he felt himself a citizen of the u. s. m^r gerry, urged that we never were independent states, were not such now, & never could be even on the principles of the confederation. the states & the advocates for them were intoxicated with the idea of their _sovereignty_. he was a member of congress at the time the federal articles were formed. the injustice of allowing each state an equal vote was long insisted on. he voted for it, but it was ag^{st} his judgment, and under the pressure of public danger, and the obstinacy of the lesser states. the present confederation he considered as dissolving. the fate of the union will be decided by the convention. if they do not agree on something, few delegates will probably be appointed to cong^s. if they do cong^s will probably be kept up till the new system should be adopted. he lamented that instead of coming here like a band of brothers, belonging to the same family, we seemed to have brought with us the spirit of political negotiators. m^r l. martin remarked that the language of the states being _sovereign & independent_, was once familiar & understood; though it seemed now so strange & obscure. he read those passages in the articles of confederation, which describe them in that language. on the question as moved by m^r lansing. shall the word "not" be struck out. mass^{ts} no. con^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d div^d. v^a no. n. c. no. s. c. no. geo. no. on the motion to agree to the clause as reported, "that the rule of suffrage in the 1^{st} branch ought not to be according to that established by the articles of the confederation mass. ay. con^t no. n. y. no. n. j. no. p^a ay. del. no. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. doc^r johnson & m^r elseworth moved to postpone the residue of the clause, & take up y^e 8 resol: on question mas. no. con^t ay. n. y. ay. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r elseworth moved that the rule of suffrage in the 2^d branch be the same with that established by the articles of confederation. "he was not sorry on the whole he said that the vote just passed, had determined against this rule in the first branch. he hoped it would become a ground of compromise with regard to the 2^d branch. we were partly national; partly federal. the proportional representation in the first branch was conformable to the national principle & would secure the large states ag^{st} the small. an equality of voices was conformable to the federal principle and was necessary to secure the small states ag^{st} the large. he trusted that on this middle ground a compromise would take place. he did not see that it could on any other. and if no compromise should take place, our meeting would not only be in vain but worse than in vain. to the eastward he was sure mass^{ts} was the only state that would listen to a proposition for excluding the states as equal political societies, from an equal voice in both branches. the others would risk every consequence rather than part with so dear a right. an attempt to deprive them of it, was at once cutting the body of america in two, and as he supposed would be the case, somewhere about this part of it. the large states he conceived would notwithstanding the equality of votes, have an influence that would maintain their superiority. holland, as had been admitted (by m^r madison) had, notwithstanding a like equality in the dutch confederacy, a prevailing influence in the public measures. the power of self defence was essential to the small states. nature had given it to the smallest insect of the creation. he could never admit that there was no danger of combinations among the large states. they will like individuals find out and avail themselves of the advantage to be gained by it. it was true the danger would be greater if they were contiguous and had a more immediate common interest. a defensive combination of the small states was rendered more difficult by their great number. he would mention another consideration of great weight. the existing confederation was founded on the equality of the states in the article of suffrage: was it meant to pay no regard to this antecedent plighted faith. let a strong executive, a judiciary & legislative power be created, but let not too much be attempted; by which all may be lost. he was not in general a half-way man, yet he preferred doing half the good we could, rather than do nothing at all. the other half may be added, when the necessity shall be more fully experienced.[120] [120] in king's notes another speech of madison's is given after ellsworth's: "_madison._ one gentleman from connecticut has proposed doing as much as is prudent now, leaving future amendments to posterity,--this is a dangerous doctrine. the defects of the amphictionic league were acknowledged, but were reformed. the netherlands have four times attempted to make amendments in their confederation, but have failed in each attempt. the fear of innovation, the hue & cry in favour of the liberty of the people will as they have done prevent the necessary reforms. if the states have equal votes & influence in the senate we shall be in the utmost danger, the minority of the people will govern the majority. delaware during the late war opposed and defeated an embargo, to which twelve states had agreed, and continued to supply the enemy with provisions in time of war."--king's _life and times of rufus king_, i., 612. m^r baldwin[121] could have wished that the powers of the general legislature had been defined, before the mode of constituting it had been agitated. he should vote against the motion of m^r elseworth, tho. he did not like the resolution as it stood in the report of the committee of the whole. he thought the second branch ought to be the representation of property, and that in forming it therefore some reference ought to be had to the relative wealth of their constituents, and to the principles on which the senate of mass^{ts} was constituted. he concurred with those who thought it w^d be impossible for the gen^l legislature to extend its cares to the local matters of the states.[122] adj^d. [121] "mr. baldwin is a gentleman of superior abilities, and joins in a public debate with great art and eloquence. having laid the foundation of a compleat classical education at harvard college, he pursues every other study with ease. he is well acquainted with books and characters, and has an accommodating turn of mind, which enables him to gain the confidence of men, and to understand them. he is a practising attorney in georgia, and has been twice a member of congress. mr. baldwin is about 38 years of age."--pierce's notes _am. hist. rev._, iii., 333. [122] according to yates, after baldwin spoke: "mr. madison. i would always exclude inconsistent principles in framing a system of government. the difficulty of getting its defects amended are great and sometimes insurmountable. the virginia state government was the first which was made, and though its defects are evident to every person, we cannot get it amended. the dutch have made four several attempts to amend their system without success. the few alterations made in it were by tumult and faction, and for the worse. if there was real danger, i would give the smaller states the defensive weapons--but there is none from that quarter. the great danger to our general government is the great southern and northern interests of the continent, being opposed to each other. look to the votes in congress, and most of them stand divided by the geography of the country, not according to the size of the states. "suppose the first branch granted money, may not the second branch, from state views, counteract the first? in congress, the single state of delaware prevented an embargo, at the time that all the other states thought it absolutely necessary for the support of the army. other powers, and those very essential, besides the legislative, will be given to the second branch--such as the negativing all state laws. i would compromise on this question, if i could do it on correct principles, but otherwise not--if the old fabric of the confederation must be the groundwork of the new, we must fall."--yates, _secret proceedings_, etc., 189. saturday june 30. 1787. in convention m^r brearly moved that the presid^t write to the executive of n. hampshire, informing it that the business depending before the convention was of such a nature as to require the immediate attendance of the deputies of that state. in support of his motion he observed that the difficulties of the subject and the diversity of opinions called for all the assistance we could possibly obtain, (it was well understood that the object was to add n. hampshire to the n^o of states opposed to the doctrine of proportional representation, which it was presumed from her relative size she must be adverse to). m^r patterson seconded the motion. m^r rutlidge could see neither the necessity nor propriety of such a measure. they are not unapprized of the meeting, and can attend if they choose. rho. island might as well be urged to appoint & send deputies. are we to suspend the business until the deputies arrive? if we proceed he hoped all the great points would be adjusted before the letter could produce its effect. m^r king, said he had written more than once as a private correspondent, & the answers gave him every reason to expect that state would be represented very shortly, if it sh^d be so at all. circumstances of a personal nature had hitherto prevented it. a letter c^d have no effect. m^r wilson wished to know whether it would be consistent with the rule or reason of secrecy, to communicate to n. hampshire that the business was of such a nature as the motion described. it w^d spread a great alarm. besides he doubted the propriety of soliciting any state on the subject; the meeting being merely voluntary--on motion of m^r brearly mas^{ts} no. con^t no. n. y. ay. n. j. ay. p^a not on y^e floor. del. not on floor. m^d div^d v^a no. n. c. no. s. c. no. geo. not on floor. the motion of m^r elseworth resumed for allowing each state an equal vote in y^e 2^d branch. m^r wilson did not expect such a motion after the establishment of y^e contrary principle in the 1^{st} branch; and considering the reasons which would oppose it, even if an equal vote had been allowed in the 1^{st} branch. the gentleman from connecticut (m^r elseworth) had pronounced that if the motion should not be acceded to, of all the states north of pen^a one only would agree to any gen^l government. he entertained more favorable hopes of conn^t and of the other northern states. he hoped the alarms exceeded their cause, and that they would not abandon a country to which they were bound by so many strong and endearing ties. but should the deplored event happen, it would neither stagger his sentiments nor his duty. if the minority of the people of america refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen on better grounds. the votes of yesterday ag^{st} the just principle of representation, were as 22 to 90 of the people of america. taking the opinions to be the same on this point, and he was sure if there was any room for change, it could not be on the side of the majority, the question will be shall less than 1/4 of the u. states withdraw themselves from the union; or shall more than 3/4 renounce the inherent, indisputable and unalienable rights of men, in favor of the artificial systems of states. if issue must be joined, it was on this point he would chuse to join it. the gentleman from connecticut in supposing that the preponderancy secured to the majority in the 1^{st} branch had removed the objections to an equality of votes in the 2^d branch for the security of the minority, narrowed the case extremely. such an equality will enable the minority to controul in all cases whatsoever, the sentiments and interests of the majority. seven states will controul six: seven states, according to the estimates that had been used, composed 24/90 of the whole people. it would be in the power then of less than 1/3 to overrule 2/3 whenever a question should happen to divide the states in that manner. can we forget for whom we are forming a government? is it for _men_, or for the imaginary beings called _states_? will our honest constituents be satisfied with metaphysical distinctions? will they, ought they to be satisfied with being told, that the one-third compose the greater number of states? the rule of suffrage ought on every principle to be the same in the 2^d as in the 1^{st} branch. if the government be not laid on this foundation, it can be neither solid nor lasting. any other principle will be local, confined & temporary. this will expand with the expansion, and grow with the growth of the u. states.--much has been said of an imaginary combination of three states. sometimes a danger of monarchy, sometimes of aristocracy has been charged on it. no explanation however of the danger has been vouchsafed. it would be easy to prove both from reason & history that rivalships would be more probable than coalitions; and that there are no coinciding interests that could produce the latter. no answer has yet been given to the observations of (m^r madison) on this subject. should the executive magistrate be taken from one of the large states would not the other two be thereby thrown into the scale with the other states? whence then the danger of monarchy? are the people of the three large states more aristocratic than those of the small ones? whence then the danger of aristocracy from their influence? it is all a mere illusion of names. we talk of states, till we forget what they are composed of. is a real & fair majority, the natural hot-bed of aristocracy? it is a part of the definition of this species of gov^t or rather of tyranny, that the smaller number governs the greater. it is true that a majority of states in the 2^d branch cannot carry a law ag^{st} a majority of the people in the 1^{st}. but this removes half only of the objection. bad govern^{ts} are of two sorts. 1. that which does too little. 2. that which does too much: that which fails thro' weakness; and that which destroys thro' oppression. under which of these evils do the u. states at present groan? under the weakness and inefficiency of its govern^t. to remedy this weakness we have been sent to this convention. if the motion should be agreed to, we shall leave the u. s. fettered precisely as heretofore; with the additional mortification of seeing the good purposes of y^e fair representation of the people in the 1^{st} branch, defeated in the 2^d. twenty four will still controul sixty six. he lamented that such a disagreement should prevail on the point of representation, as he did not foresee that it would happen on the other point most contested, the boundary between the gen^l & the local authorities. he thought the states necessary & valuable parts of a good system. m^r elseworth. the capital objection of m^r wilson, "that the minority will rule the majority" is not true. the power is given to the few to save them from being destroyed by the many. if an equality of votes had been given to them in both branches, the objection might have had weight. is it a novel thing that the few should have a check on the many? is it not the case in the british constitution the wisdom of which so many gentlemen have united in applauding? have not the house of lords, who form so small a proportion of the nation a negative on the laws, as a necessary defence of their peculiar rights ag^{st} the encroachm^{ts} of the commons. no instance of a confederacy has existed in which an equality of voices has not been exercised by the members of it. we are running from one extreme to another. we are razing the foundations of the building, when we need only repair the roof. no salutary measure has been lost for want of _a majority of the states_, to favor it. if security be all that the great states wish for the 1^{st} branch secures them. the danger of combinations among them is not imaginary. altho' no particular abuses could be foreseen by him, the possibility of them would be sufficient to alarm him. but he could easily conceive cases in which they might result from such combinations. suppose that in pursuance of some commercial treaty or arrangement, three or four free ports & no more were to be established would not combinations be formed in favor of boston--philad^a & some port of the chesapeak? a like concert might be formed in the appointment of the great officers. he appealed again to the obligations of the federal pact which was still in force, and which had been entered into with so much solemnity; persuading himself that some regard would still be paid to the plighted faith under which each state small as well as great, held an equal right of suffrage in the general councils. his remarks were not the result of partial or local views. the state he represented (connecticut) held a middle rank. m^r madison did justice to the able and close reasoning of m^r e. but must observe that it did not always accord with itself. on another occasion, the large states were described by him as the aristocratic states, ready to oppress the small. now the small are the house of lords requiring a negative to defend them ag^{st} the more numerous commons. m^r e. had also erred in saying that no instance had existed in which confederated states had not retained to themselves a perfect equality of suffrage. passing over the german system in which the k. of prussia has nine voices, he reminded m^r e. of the lycian confederacy, in which the component members had votes proportioned to their importance, and which montesquieu recommends as the fittest model for that form of government. had the fact been as stated by m^r e. it would have been of little avail to him, or rather would have strengthened the arguments ag^{st} him; the history & fate of the several confederacies modern as well as antient, demonstrating some radical vice in their structure. in reply to the appeal of m^r e. to the faith plighted in the existing federal compact, he remarked that the party claiming from others an adherence to a common engagement ought at least to be guiltless itself of a violation. of all the states however connecticut was perhaps least able to urge this plea. besides the various omissions to perform the stipulated acts from which no state was free, the legislature of that state had by a pretty recent vote, _positively refused_ to pass a law for complying with the requisitions of cong^s, and had transmitted a copy of the vote to cong^s. it was urged, he said, continually that an equality of votes in the 2^d branch was not only necessary to secure the small, but would be perfectly safe to the large ones whose majority in the 1^{st} branch was an effectual bulwark. but notwithstanding this apparent defence, the majority of states might still injure the majority of people. 1. they could _obstruct_ the wishes and interests of the majority. 2. they could _extort_ measures repugnant to the wishes & interest of the majority. 3. they could _impose_ measures adverse thereto; as the 2^d branch will prob[~l]y exercise some great powers, in which the 1^{st} will not participate. he admitted that every peculiar interest whether in any class of citizens, or any description of states, ought to be secured as far as possible. wherever there is danger of attack there ought to be given a constitutional power of defence. but he contended that the states were divided into different interests not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. these two causes concurred in forming the great division of interests in the u. states. it did not lie between the large & small states: it lay between the northern & southern. and if any defensive power were necessary, it ought to be mutually given to these two interests. he was so strongly impressed with this important truth that he had been casting about in his mind for some expedient that would answer the purpose. the one which had occurred was that instead of proportioning the votes of the states in both branches, to their respective numbers of inhabitants computing the slaves in the ratio of 5 to 3, they should be represented in one branch according to the number of free inhabitants only; and in the other according to the whole n^o counting the slaves as free. by this arrangement the southern scale would have the advantage in one house, and the northern in the other. he had been restrained from proposing this expedient by two considerations: one was his unwillingness to urge any diversity of interests on an occasion where it is but too apt to arise of itself--the other was, the inequality of powers that must be vested in the two branches, and which w^d destroy the equilibrium of interests. m^r elseworth assured the house that whatever might be thought of the representatives of connecticut the state was entirely federal in her disposition. he appealed to her great exertions during the war, in supplying both men & money. the muster rolls would show she had more troops in the field than virg^a. if she had been delinquent, it had been from inability, and not more so than other states. m^r sherman. m^r madison had animadverted on the delinquency of the states, when his object required him to prove that the constitution of cong^s was faulty. cong^s is not to blame for the faults of the states. their measures have been right, and the only thing wanting has been, a further power in cong^s to render them effectual. m^r davy was much embarrassed and wished for explanations. the report of the committee allowing the legislatures to choose the senate, and establishing a proportional representation in it, seemed to be impracticable. there will according to this rule be ninety members in the outset, and the number will increase as new states are added. it was impossible that so numerous a body could possess the activity and other qualities required in it. were he to vote on the comparative merits of the report as it stood, and the amendment, he should be constrained to prefer the latter. the appointment of the senate by electors chosen by the people for that purpose was he conceived liable to an insuperable difficulty. the larger counties or districts thrown into a general district, would certainly prevail over the smaller counties or districts, and merit in the latter would be excluded altogether. the report therefore seemed to be right in referring the appointment to the legislatures, whose agency in the general system did not appear to him objectionable as it did to some others. the fact was that the local prejudices & interests which could not be denied to exist, would find their way into the national councils whether the representatives should be chosen by the legislatures or by the people themselves. on the other hand if a proportional representation was attended with insuperable difficulties, the making the senate the representative of the states, looked like bringing us back to cong^s again, and shutting out all the advantages expected from it. under this view of the subject he could not vote for any plan for the senate yet proposed. he thought that in general there were extremes on both sides. we were partly federal, partly national in our union, and he did not see why the gov^t might not in some respects operate on the states, in others on the people. m^r wilson admitted the question concerning the number of senators, to be embarrassing. if the smallest states be allowed one, and the others in proportion, the senate will certainly be too numerous. he looked forward to the time when the smallest states will contain 100,000 souls at least. let there be then one senator in each for every 100,000 souls and let the states not having that n^o of inhabitants be allowed one. he was willing himself to submit to this temporary concession to the small states; and threw out the idea as a ground of compromise. doc^r franklin. the diversity of opinions turns on two points. if a proportional representation takes place, the small states contend that their liberties will be in danger. if an equality of votes is to be put in its place, the large states say their money will be in danger. when a broad table is to be made, and the edges of planks do not fit, the artist takes a little from both, and makes a good joint. in like manner here both sides must part with some of their demands, in order that they may join in some accommodating proposition. he had prepared one which he would read, that it might lie on the table for consideration. the proposition was in the words following "that the legislatures of the several states shall choose & send an equal number of delegates, namely ---who are to compose the 2^d branch of the general legislature- that in all cases or questions wherein the sovereignty of individual states may be affected, or whereby their authority over their own citizens may be diminished, or the authority of the general government within the several states augmented, each state shall have equal suffrage. that in the appointment of all civil officers of y^e gen^l gov^t in the election of whom the 2^d branch may by the constitution have part, each state shall have equal suffrage. that in fixing the salaries of such officers, and in all allowances for public services, and generally in all appropriations & dispositions of money to be drawn out of the general treasury; and in all laws for supplying that treasury, the delegates of the several states shall have suffrage in proportion to the sums which their respective states do actually contribute to the treasury." where a ship had many owners this was the rule of deciding on her expedition. he had been one of the ministers from this country to france during the joint war and w^d have been very glad if allowed a vote in distributing the money to carry it on. m^r king observed that the simple question was whether each state should have an equal vote in the 2^d branch; that it must be apparent to those gentlemen who liked neither the motion for this equality, nor the report as it stood, that the report was as susceptible of melioration as the motion; that a reform would be nugatory & nominal only if we should make another congress of the proposed senate: that if the adherence to an equality of votes was fixed & unalterable, there could not be less obstinacy on the other side, & that we were in fact cut asunder already, and it was in vain to shut our eyes against it: that he was however filled with astonishment that if we were convinced that every _man_ in america was secured in all his rights, we should be ready to sacrifice this substantial good to the phantom of _state_ sovereignty: that his feelings were more harrowed & his fears more agitated for his country than he could express, that he conceived this to be the last opportunity of providing for its liberty & happiness: that he could not therefore but repeat his amazement that when a just govern^t founded on a fair representation of the _people_ of america was within our reach, we should renounce the blessing, from an attachment to the ideal freedom & importance of _states_: that should this wonderful illusion continue to prevail, his mind was prepared for every event, rather than to sit down under a gov^t founded in a vicious principle of representation, and which must be as short lived as it would be unjust. he might prevail on himself to accede to some such expedient as had been hinted by m^r wilson; but he never could listen to an equality of votes as proposed in the motion. m^r dayton. when assertion is given for proof, and terror substituted for argument, he presumed they would have no effect however eloquently spoken. it should have been shewn that the evils we have experienced have proceeded from the equality now objected to; and that the seeds of dissolution for the state governments are not sown in the gen^l government. he considered the system on the table as a novelty, an amphibious monster; and was persuaded that it never would be rec^d by the people. m^r martin w^d never confederate if it could not be done on just principles. m^r madison would acquiesce in the concession hinted by m^r wilson, on condition that a due independence should be given to the senate. the plan in its present shape makes the senate absolutely dependent on the states. the senate therefore is only another edition of cong^s. he knew the faults of that body & had used a bold language ag^{st} it. still he would preserve the state rights, as carefully as the trials by jury. m^r bedford, contended that there was no middle way between a perfect consolidation and a mere confederacy of the states. the first is out of the question, and in the latter they must continue if not perfectly, yet equally sovereign. if political societies possess ambition avarice, and all the other passions which render them formidable to each other, ought we not to view them in this light here? will not the same motives operate in america as elsewhere? if any gentleman doubts it let him look at the votes. have they not been dictated by interest, by ambition? are not the large states evidently seeking to aggrandize themselves at the expense of the small? they think no doubt that they have right on their side, but interest had blinded their eyes. look at georgia. though a small state at present, she is actuated by the prospect of soon being a great one. s. carolina is actuated both by present interest & future prospects. she hopes too to see the other states cut down to her own dimensions. n. carolina has the same motives of present & future interest. virg^a follows. mary^d is not on that side of the question. pen^a has a direct and future interest. mass^{ts} has a decided and palpable interest in the part she takes. can it be expected that the small states will act from pure disinterestedness. look at g. britain. is the representation there less unequal? but we shall be told again that that is the rotten part of the constitution. have not the boroughs however held fast their constitutional rights? and are we to act with greater purity than the rest of mankind. an exact proportion in the representation is not preserved in any one of the states. will it be said that an inequality of power will not result from an inequality of votes. give the opportunity, and ambition will not fail to abuse it. the whole history of mankind proves it. the three large states have a common interest to bind them together in commerce. but whether a combination as we suppose, or a competition as others suppose, shall take place among them, in either case, the small states must be ruined. we must like solon make such a govern^t as the people will approve. will the smaller states ever agree to the proposed degradation of them. it is not true that the people will not agree to enlarge the powers of the present cong^s. the language of the people has been that cong^s ought to have the power of collecting an impost, and of coercing the states where it may be necessary. on the first point they have been explicit &, in a manner, unanimous in their declarations. and must they not agree to this & similar measures if they ever mean to discharge their engagements. the little states are willing to observe their engagements, but will meet the large ones on no ground but that of the confederation. we have been told with a dictatorial air that this is the last moment for a fair trial in favor of a good governm^t. it will be the last indeed if the propositions reported from the committee go forth to the people. he was under no apprehensions. the large states dare not dissolve the confederation. if they do the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice. he did not mean by this to intimidate or alarm. it was a natural consequence, which ought to be avoided by enlarging the federal powers not annihilating the federal system. this is what the people expect. all agree in the necessity of a more efficient gov^t and why not make such an one as they desire. m^r elseworth. under a national gov^t he should participate in the national security, as remarked by (m^r king) but that was all. what he wanted was domestic happiness. the nat^l gov^t could not descend to the local objects on which this depended. it could only embrace objects of a general nature. he turned his eyes therefore for the preservation of his rights to the state gov^{ts}. from these alone he could derive the greatest happiness he expects in this life. his happiness depends on their existence, as much as a new born infant on its mother for nourishment. if this reasoning was not satisfactory, he had nothing to add that could be so. m^r king was for preserving the states in a subordinate degree, and as far as they could be necessary for the purposes stated by m^r elseworth. he did not think a full answer had been given to those who apprehended a dangerous encroachment on their jurisdictions. expedients might be devised as he conceived that would give them all the security the nature of things would admit of. in the establish^t of societies the constitution was to the legislature what the laws were to individuals. as the fundamental rights of individuals are secured by express provisions in the state constitutions; why may not a like security be provided for the rights of states in the national constitution. the articles of union between engl^d & scotland furnish an example of such a provision in favor of sundry rights of scotland. when that union was in agitation, the same language of apprehension which has been heard from the smaller states, was in the mouths of the scotch patriots. the articles however have not been violated and the scotch have found an increase of prosperity & happiness. he was aware that this will be called a mere _paper security_. he thought it a sufficient answer to say that if fundamental articles of compact, are no sufficient defence against physical power, neither will there be any safety ag^{st} it if there be no compact. he could not sit down, without taking some notice of the language of the honorable gentleman from delaware (m^r bedford). it was not he that had uttered a dictatorial language. this intemperance had marked the honorable gentleman himself. it was not he who with a vehemence unprecedented in that house, had declared himself ready to turn his hopes from our common country, and court the protection of some foreign hand. this too was the language of the honbl member himself. he was grieved that such a thought had entered into his heart. he was more grieved that such an expression had dropped from his lips. the gentleman c^d only excuse it to himself on the score of passion. for himself whatever might be his distress, he w^d never court relief from a foreign power. adjourned. monday july 2^d in convention. on the question for allowing each state one vote in the second branch as moved by m^r elseworth, mass^{ts} no. con^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d ay. m^r jenifer being not present m^r martin alone voted v^a no. n. c. no. s. c. no. geo. div^d. m^r houston no. m^r baldwin ay. m^r pinkney thought an equality of votes in the 2^d branch inadmissible. at the same time candor obliged him to admit that the large states would feel a partiality for their own citizens & give them a preference, in appointments: that they might also find some common points in their commercial interests, and promote treaties favorable to them. there is a real distinction [between] the northern & south^n interests. n. carol^a s. carol: & geo. in their rice & indigo had a peculiar interest which might be sacrificed. how then shall the larger states be prevented from administering the gen^l gov^t as they please, without being themselves unduly subjected to the will of the smaller? by allowing them some but not a full, proportion. he was extremely anxious that something should be done, considering this as the last appeal to a regular experiment. cong^s have failed in almost every effort for an amendment of the federal system. nothing has prevented a dissolution of it, but the appointm^t of this convention; & he could not express his alarms for the consequence of such an event. he read his motion, to form the states into classes, with an apportionment of senators among them (see art: 4, of his plan). general pinkney was willing the motion might be considered. he did not entirely approve it. he liked better the motion of doc^r franklin (which see saturday june 30). some compromise seemed to be necessary, the states being exactly divided on the question for an equality of votes in the 2^d branch. he proposed that a committee consisting of a member from each state should be appointed to devise & report some compromise. m^r l. martin had no objection to a commitment, but no modifications whatever could reconcile the smaller states to the least diminution of their equal sovereignty. m^r sherman. we are now at a full stop, and nobody he supposed meant that we sh^d break up without doing something. a committee he thought most likely to hit on some expedient. [123]mr. gov^r morris. thought a com^e adviseable as the convention had been equally divided. he had a stronger reason also. the mode of appointing the 2^d branch tended he was sure to defeat the object of it. what is this object? to check the precipitation, changeableness, and excesses of the first branch. every man of observation had seen in the democratic branches of the state legislatures, precipitation--in congress changeableness, in every department excesses ag^{st} personal liberty private property & personal safety. what qualities are necessary to constitute a check in this case? _abilities_ and _virtue_, are equally necessary in both branches. something more then is now wanted, 1. the checking branch must have a personal interest in checking the other branch, one interest must be opposed to another interest. vices as they exist, must be turned ag^{st} each other. 2. it must have great personal property, it must have the aristocratic spirit; it must love to lord it thro' pride. pride is indeed the great principle that actuates both the poor & the rich. it is this principle which in the former resists, in the latter abuses authority. 3. it should be independent. in religion the creature is apt to forget its creator. that it is otherwise in political affairs, the late debates here are an unhappy proof. the aristocratic body, should be as independent & as firm as the democratic. if the members of it are to revert to a dependence on the democratic choice, the democratic scale will preponderate. all the guards contrived by america have not restrained the senatorial branches of the legislatures from a servile complaisance to the democratic. if the 2^d branch is to be dependent we are better without it. to make it independent, it should be for life. it will then do wrong, it will be said. he believed so; he hoped so. the rich will strive to establish their dominion & enslave the rest. they always did. they always will. the proper security ag^{st} them is to form them into a separate interest. the two forces will then controul each other. let the rich mix with the poor and in a commercial country, they will establish an oligarchy. take away commerce, and the democracy will triumph. thus it has been all the world over. so it will be among us. reason tells us we are but men: and we are not to expect any particular interference of heaven in our favor. by thus combining & setting apart, the aristocratic interest, the popular interest will be combined ag^{st} it. there will be a mutual check and mutual security. 4. an independence for life, involves the necessary permanency. if we change our measures nobody will trust us: and how avoid a change of measures, but by avoiding a change of men. ask any man if he confides in cong^s if he confides in the state of pen^a if he will lend his money or enter into contract? he will tell you no. he sees no stability. he can repose no confidence. if g. b. were to explain her refusal to treat with us, the same reasoning would be employed.--he disliked the exclusion of the 2^d branch from holding offices. it is dangerous. it is like the imprudent exclusion of the military officers during the war, from civil appointments. it deprives the executive of the principal source of influence. if danger be apprehended from the executive what a left-handed way is this of obviating it? if the son, the brother or the friend can be appointed, the danger may be even increased, as the disqualified father &c. can then boast of a disinterestedness which he does not possess. besides shall the best, the most able, the most virtuous citizens not be permitted to hold offices? who then are to hold them? he was also ag^{st} paying the senators. they will pay themselves if they can. if they can not they will be rich and can do without it. of such the 2^d branch ought to consist; and none but such can compose it if they are not to be paid--he contended that the executive should appoint the senate & fill up vacancies. this gets rid of the difficulty in the present question. you may begin with any ratio you please; it will come to the same thing. the members being independ^t & for life, may be taken as well from one place as from another.--it should be considered too how the scheme could be carried through the states. he hoped there was strength of mind eno' in this house to look truth in the face. he did not hesitate therefore to say that loaves & fishes must bribe the demagogues. they must be made to expect higher offices under the general than the state gov^{ts}. a senate for life will be a noble bait. without such captivating prospects, the popular leaders will oppose & defeat the plan. he perceived that the 1^{st} branch was to be chosen by the people of the states; the 2^d by those chosen by the people. is not here a gov^t by the states, a govern^t by compact between virg^a in the 1^{st} & 2^d branch, mass^{ts} in the 1^{st} & 2^d branch &c. this is going back to mere treaty. it it no gov^t at all. it is altogether dependent on the states, and will act over again the part which cong^s has acted. a firm govern^t alone can protect our liberties. he fears the influence of the rich. they will have the same effect here as elsewhere if we do not by such a gov^t keep them within their proper sphere. we should remember that the people never act from reason alone. the rich will take the advantage of their passions & make these the instruments for oppressing them. the result of the contest will be a violent aristocracy, or a more violent despotism. the schemes of the rich will be favored by the extent of the country. the people in such distant parts cannot communicate & act in concert. they will be the dupes of those who have more knowledge & intercourse. the only security ag^{st} encroachments will be a select & sagacious body of men, instituted to watch ag^{st} them on all sides. he meant only to hint these observations, without grounding any motion on them. [123] he had just returned from n. y. hav^g left y^e convention a few days after it commenced business.--madison's note. m^r randolph favored the commitment though he did not expect much benefit from the expedient. he animadverted on the warm & rash language of m^r bedford on saturday; reminded the small states that if the large states should combine some danger of which he did not deny there would be a check in the revisionary power of the executive, and intimated that in order to render this still more effectual, he would agree that in the choice of an executive each state should have an equal vote. he was persuaded that two such opposite bodies as m^r morris had planned, could never long co-exist. dissentions would arise, as has been seen even between the senate and h. of delegates in maryland, appeals would be made to the people; and in a little time commotions would be the result--he was far from thinking the large states could subsist of themselves any more than the small; an avulsion would involve the whole in ruin, and he was determined to pursue such a scheme of government as would secure us ag^{st} such a calamity. m^r strong was for the co[~m]itment; and hoped the mode of constituting both branches would be referred. if they should be established on different principles, contentions would prevail, and there would never be a concurrence in necessary measures. doc^r williamson. if we do not concede on both sides, our business must soon be at an end. he approved of the co[~m]itment, supposing that as the com^e w^d be a smaller body, a compromise would be pursued with more coolness. m^r wilson objected to the committee, because it would decide according to that very rule of voting which was opposed on one side. experience in cong^s had also proved the inutility of committees consisting of members from each state. m^r lansing w^d not oppose the commitment, though expecting little advantage from it. m^r madison opposed the co[~m]itment. he had rarely seen any other effect than delay from _such_ committees in cong^s. any scheme of compromise that could be proposed in the committee might as easily be proposed in the house; and the report of the committee where it contained merely the _opinion_ of the com^e would neither shorten the discussion, nor influence the decision of the house. m^r gerry was for the commitm^t. something must be done, or we shall disappoint not only america, but the whole world. he suggested a consideration of the state we should be thrown into by the failure of the union. we should be without an umpire to decide controversies and must be at the mercy of events. what too is to become of our treaties--what of our foreign debts, what of our domestic? we must make concessions on both sides. without these the constitutions of the several states would never have been formed. on the question "for co[~m]iting," generally: mass^{ts} ay. con^t ay. n. y. ay. n. j. no. p. ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. on the question for co[~m]iting it "to a member from each state," mass^{ts} ay. con^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. the co[~m]ittee elected by ballot, were m^r gerry, m^r elseworth, m^r yates, m^r patterson, d^r franklin, m^r bedford, m^r martin, m^r mason, m^r davy, m^r rutlidge, mr. baldwin. that time might be given to the co[~m]ittee, and to such as chose to attend to the celebrations on the anniversary of independence, the convention adjourned till thursday.[124] [124] "tuesday, _july 3, 1787_. "the _grand committee_ met. mr. gerry was chosen chairman. "the committee proceeded to consider in what manner they should discharge the business with which they were intrusted. by the proceedings in the convention, they were so equally divided on the important question of _representation in the two branches_, that the idea of a conciliatory adjustment must have been in contemplation of the house in the appointment of this committee. but still, how to effect this salutory purpose was the question. many of the members, impressed with the utility of a general government, connected with it the indispensable necessity of a representation from the states according to their numbers and wealth; while others, equally tenacious of the rights of the states, would admit of no other representation but such as _was strictly federal_, or, in other words, _equality of suffrage_. this brought on a discussion of the principles on which the house had divided, and a lengthy recapitulation of the arguments advanced in the house in support of these opposite propositions. as i had not openly explained my sentiments on any former occasion on this question, but constantly, in giving my vote, _showed my attachment to the national government on federal principles, i took this occasion to explain my motives_. "these remarks gave rise to a motion of dr. franklin, which after some modification was agreed to, and made the basis of the following report of the committee."--yates, _secret proceedings_, etc., 205. the report is given by madison. * * * * * hamilton, who had gone to new york, wrote to washington under date of july 3d: "in my passage through the jerseys, and since my arrival here, i have taken particular pains to discover the public sentiment, and i am more and more convinced that this is the critical opportunity for establishing the prosperity of this country on a solid foundation. i have conversed with men of information, not only in this city, but from different parts of the state, and they agree that there has been an astonishing revolution for the better in the minds of the people. "the prevailing apprehension among thinking men is, that the convention, from the fear of shocking the popular opinion, will not go far enough. they seem to be convinced that a strong, well-mounted government will better suit the popular palate than one of a different complexion. men in office are indeed taking all possible pains to give an unfavorable impression of the convention, but the current seems to be moving strongly the other way. "a plain but sensible man, in a conversation i had with him yesterday, expressed himself nearly in this manner: the people begin to be convinced that 'their excellent form of government,' as they have been used to call it, will not answer their purpose, and that they must substitute something not very remote from that which they have lately quitted. "these appearances, though they will not warrant a conclusion that the people are yet ripe for such a plan as i advocate, yet serve to prove that there is no reason to despair of their adopting one equally energetic, if the convention should think proper to propose it. they serve to prove that we ought not to allow too much weight to objections drawn from the supposed repugnance of the people to an efficient constitution. i confess i am more and more inclined to believe that former habits of thinking are regaining their influence with more rapidity than is generally imagined. "not having compared ideas with you, sir, i cannot judge how far our sentiments agree; but, as i persuade myself the genuineness of my representations will receive credit with you, my anxiety for the event of the deliberations of the convention induces me to make this communication of what appears to be the tendency of the public mind. "i own to you, sir, that i am seriously and deeply distressed at the aspect of the counsels which prevailed when i left philadelphia. i fear we shall let slip the golden opportunity of rescuing the american empire from disunion, anarchy, and misery. "no motley or feeble measure can answer the end, or will finally receive the public support. decision is true wisdom, and will not be less reputable to the convention than salutary to the community. "i shall of necessity remain here ten or twelve days. if i have reason to believe that my attendance at philadelphia will not be mere waste of time, i shall, after that period, rejoin the convention."--_hamilton's works_ (lodge). thursday july 5^{th} in convention m^r gerry delivered in from the committee appointed on monday last the following report. "the committee to whom was referred the 8^{th} resol. of the report from the committee of the whole house, and so much of the 7^{th} as has not been decided on, submit the following report: that the subsequent propositions be recommended to the convention on condition that both shall be generally adopted. i. that in the 1^{st} branch of the legislature each of the states now in the union shall be allowed 1 member for every 40,000 inhabitants of the description reported in the 7^{th} resolution of the com^e of the whole house: that each state not containing that number shall be allowed 1 member: that all bills for raising or appropriating money, and for fixing the salaries of the officers of the govern^t of the u. states shall originate in the 1^{st} branch of the legislature, and shall not be altered or amended by the 2^d branch; and that no money shall be drawn from the public treasury but in pursuance of appropriations to be originated in the 1^{st} branch. "ii. that in the 2^d branch each state shall have an equal vote."[125] [125] this report was founded on a motion in the co[~m]itte made by d^r franklin. it was barely acquiesced in by the members from the states opposed to an equity of votes in the 2^d branch and was evidently considered by the members on the other side, as a gaining of their point. a motion was made by m^r sherman. he acted in the place of m^r elseworth who was kept away by indisposition, in the committee to the following effect "that each state should have an equal vote in the 2^d branch; provided that no decision therein should prevail unless the majority of states concurring should also comprise a majority of the inhabitants of the u. states." this motion was not much deliberated on nor approved in the committee. a similar proviso had been proposed in the debates on the articles of confederation in 1777, to the articles giving certain powers to "nine states." see journals of cong^s for 1777, p. 462.--madison note. m^r ghoram observed that as the report consisted of propositions mutually conditional he wished to hear some explanations touching the grounds on which the conditions were estimated. m^r gerry. the committee were of different opinions as well as the deputations from which the com^e were taken, and agreed to the report merely in order that some ground of accommodation might be proposed. those opposed to the equality of votes have only assented conditionally; and if the other side do not generally agree will not be under any obligation to support the report. mr. wilson thought the committee had exceeded their powers. m^r martin was for taking the question on the whole report. m^r wilson was for a division of the question; otherwise it w^d be a leap in the dark. m^r madison could not regard the privilege of originating money bills as any concession on the side of the small states. experience proved that it had no effect. if seven states in the upper branch wished a bill to be originated, they might surely find some member from some of the same states in the lower branch who would originate it. the restriction as to amendments was of as little consequence. amendments could be handed privately by the senate to members in the other house. bills could be negatived that they might be sent up in the desired shape. if the senate should yield to the obstinacy of the 1^{st} branch the use of that body as a check would be lost. if the 1^{st} branch should yield to that of the senate, the privilege would be nugatory. experience had also shewn both in g. b. and the states having a similar regulation that it was a source of frequent & obstinate altercations. these considerations had produced a rejection of a like motion on a former occasion when judged by its own merits. it could not therefore be deemed any concession on the present, and left in force all the objections which had prevailed ag^{st} allowing each state an equal voice. he conceived that the convention was reduced to the alternative of either departing from justice in order to conciliate the smaller states, and the minority of the people of the u. s. or of displeasing these by justly gratifying the larger states and the majority of the people. he could not himself hesitate as to the option he ought to make. the convention with justice & the majority of the people on their side, had nothing to fear. with injustice and the minority on their side they had every thing to fear. it was in vain to purchase concord in the convention on terms which would perpetuate discord among their constituents. the convention ought to pursue a plan which would bear the test of examination, which would be espoused & supported by the enlightened and impartial part of america, & which they could themselves vindicate and urge. it should be considered that altho' at first many may judge of the system reco[~m]ended, by their opinion of the convention, yet finally all will judge of the convention by the system. the merits of the system alone can finally & effectually obtain the public suffrage. he was not apprehensive that the people of the small states would obstinately refuse to accede to a gov^t founded on just principles, and promising them substantial protection. he could not suspect that delaware would brave the consequences of seeking her fortunes apart from the other states, rather than submit to such a gov^t; much less could he suspect that she would pursue the rash policy of courting foreign support, which the warmth of one of her representatives (m^r bedford) had suggested, or if she sh^d, that any foreign nation w^d be so rash as to hearken to the overture. as little could he suspect that the people of n. jersey notwithstanding the decided tone of the gentlemen from that state, would choose rather to stand on their own legs, and bid defiance to events, than to acquiesce under an establishment founded on principles the justice of which they could not dispute, and absolutely necessary to redeem them from the exactions levied on them by the co[~m]erce of the neighbouring states. a review of other states would prove that there was as little reason to apprehend an inflexible opposition elsewhere. harmony in the convention was no doubt much to be desired. satisfaction to all the states, in the first instance still more so. but if the principal states comprehending a majority of the people of the u. s. should concur in a just & judicious plan, he had the firmest hopes, that all the other states would by degrees accede to it.[126] [126] yates, and his colleague, lansing, left the convention july 5, despairing of the result of its labors being satisfactory to them. madison's speech is the last one reported by yates.--yates, _secret proceedings_, etc. m^r butler said he could not let down his idea of the people, of america so far as to believe they would from mere respect to the convention adopt a plan evidently unjust. he did not consider the privilege concerning money bills as of any consequence. he urged that the 2^d branch ought to represent the states according to their property. m^r gov^r morris, thought the form as well as the matter of the report objectionable. it seemed in the first place to render amendments impracticable. in the next place, it seemed to involve a pledge to agree to the 2^d part if the 1^{st} sh^d be agreed to. he conceived the whole aspect of it to be wrong. he came here as a representative of america; he flattered himself he came here in some degree as a representative of the whole human race; for the whole human race will be affected by the proceedings of this convention. he wished gentlemen to extend their views beyond the present moment of time; beyond the narrow limits of place from which they derive their political origin. if he were to believe some things which he had heard, he should suppose that we were assembled to truck and bargain for our particular states. he can not descend to think that any gentlemen are really actuated by these views. we must look forward to the effects of what we do. these alone ought to guide us. much has been said of the sentiments of the people. they were unknown. they could not be known. all that we can infer is that if the plan we recommend be reasonable & right; all who have reasonable minds and sound intentions will embrace it, notwithstanding what had been said by some gentlemen. let us suppose that the larger states shall agree; and that the smaller refuse; and let us trace the consequences. the opponents of the system in the smaller states will no doubt make a party, and a noise for a time, but the ties of interest, of kindred & of common habits which connect them with other states will be too strong to be easily broken. in n. jersey particularly he was sure a great many would follow the sentiments of pen^a & n. york. this country must be united. if persuasion does not unite it, the sword will. he begged that this consideration might have its due weight. the scenes of horror attending civil commotion cannot be described, and the conclusion of them will be worse than the term of their continuance. the stronger party will then make traytors of the weaker; and the gallows & halter will finish the work of the sword. how far foreign powers would be ready to take part in the confusions he would not say. threats that they will be invited have it seems been thrown out. he drew the melancholy picture of foreign intrusions as exhibited in the history of germany, & urged it as a standing lesson to other nations. he trusted that the gentlemen who may have hazarded such expressions, did not entertain them till they reached their own lips. but returning to the report he could not think it in any respect calculated for the public good. as the 2^d branch is now constituted, there will be constant disputes & appeals to the states which will undermine the gen^l government & controul & annihilate the 1^{st} branch. suppose that the delegates from mass^{ts} & rho i. in the upper house disagree, and that the former are outvoted. what results? they will immediately declare that their state will not abide by the decision, and make such representations as will produce that effect. the same may happen as to virg^a & other states. of what avail then will be what is on paper. state attachments, and state importance have been the bane of this country. we cannot annihilate; but we may perhaps take out the teeth of the serpents. he wished our ideas to be enlarged to the true interest of man, instead of being circumscribed within the narrow compass of a particular spot. and after all how little can be the motive yielded by selfishness for such a policy. who can say whether he himself, much less whether his children, will the next year be an inhabitant of this or that state. m^r bedford. he found that what he had said as to the small states being taken by the hand, had been misunderstood; and he rose to explain. he did not mean that the small states would court the aid & interposition of foreign powers. he meant that they would not consider the federal compact as dissolved untill it should be so by the acts of the large states. in this case the consequences of the breach of faith on their part, and the readiness of the small states to fulfill their engagements, would be that foreign nations having demands on this country would find it their interest to take the small states by the hand, in order to do themselves justice. this was what he meant. but no man can foresee to what extremities the small states may be driven by oppression. he observed also in apology that some allowance ought to be made for the habits of his profession in which warmth was natural & sometimes necessary. but is there not an apology in what was said by (m^r gov^r morris) that the sword is to unite: by m^r ghorum that delaware must be annexed to penn^a and n. jersey divided between pen^a and n. york. to hear such language without emotion, would be to renounce the feelings of a man and the duty of a citizen--as to the propositions of the committee, the lesser states have thought it necessary to have a security somewhere. this has been thought necessary for the executive magistrate of the proposed gov^t who has a sort of negative on the laws; and is it not of more importance that the states should be protected, than that the executive branch of the gov^t sh^d be protected. in order to obtain this, the smaller states have conceded as to the constitution of the first branch, and as to money bills. if they be not gratified by correspondent concessions as to the 2^d branch is it to be supposed they will ever accede to the plan; and what will be the consequence if nothing should be done? the condition of the u. states requires that something should be immediately done. it will be better that a defective plan should be adopted, than that none should be recommended. he saw no reason why defects might not be supplied with meetings 10, 15, or 20 years hence. m^r elseworth said he had not attended the proceedings of the committee, but was ready to accede to the compromise they had reported. some compromise was necessary; and he saw none more convenient or reasonable. m^r williamson hoped that the expressions of individuals would not be taken for the sense of their colleagues, much less of their states which was not & could not be known. he hoped also that the meaning of those expressions would not be misconstrued or exaggerated. he did not conceive that (m^r gov^r morris) meant that the sword ought to be drawn ag^{st} the smaller states. he only pointed out the probable consequences of anarchy in the u. s. a similar exposition ought to be given of the expressions of (m^r ghorum). he was ready to hear the report discussed; but thought the propositions contained in it, the most objectionable of any he had yet heard. m^r patterson said that he had when the report was agreed to in the com^e reserved to himself the right of freely discussing it. he acknowledged that the warmth complained of was improper; but he thought the sword & the gallows little calculated to produce conviction. he complained of the manner in which m^r m and m^r gov^r morris had treated the small states. m^r gerry. tho' he had assented to the report in the committee, he had very material objections to it. we were however in a peculiar situation. we were neither the same nation nor different nations. we ought not therefore to pursue the one or the other of these ideas too closely. if no compromise should take place what will be the consequence. a secession he foresaw would take place; for some gentlemen seem decided on it: two different plans will be proposed; and the result no man could foresee. if we do not come to some agreement among ourselves some foreign sword will probably do the work for us. m^r mason. the report was meant not as specific propositions to be adopted; but merely as a general ground of accommodation. there must be some accommodation on this point, or we shall make little further progress in the work. accommodation was the object of the house in the appointment of the committee; and of the committee in the report they had made. and however liable the report might be to objections, he thought it preferable to an appeal to the world by the different sides, as had been talked of by some gentlemen. it could not be more inconvenient to any gentleman to remain absent from his private affairs, than it was for him; but he would bury his bones in this city rather than expose his country to the consequences of a dissolution of the convention without any thing being done. the 1^{st} proposition in the report for fixing the representation in the 1^{st} branch, "one member for every 40,000 inhabitants," being taken up. m^r gov^r morris objected to that scale of apportionment. he thought property ought to be taken into the estimate as well as the number of inhabitants. life & liberty were generally said to be of more value than property. an accurate view of the matter would nevertheless prove that property was the main object of society. the savage state was more favorable to liberty than the civilized; and sufficiently so to life. it was preferred by all men who had not acquired a taste for property; it was only renounced for the sake of property which could only be secured by the restraints of regular government. these ideas might appear to some new, but they were nevertheless just. if property then was the main object of gov^t certainly it ought to be one measure of the influence due to those who were to be affected by the govern^t. he looked forward also to that range of new states which w^d soon be formed in the west. he thought the rule of representation ought to be so fixed as to secure to the atlantic states a prevalence in the national councils. the new states will know less of the public interest than these, will have an interest in many respects different, in particular will be little scrupulous of involving the community in wars the burdens & operations of which would fall chiefly on the maritime states. provision ought therefore to be made to prevent the maritime states from being hereafter outvoted by them. he thought this might be easily done by irrevocably fixing the number of representatives which the atlantic states should respectively have, and the number which each new state will have. this w^d not be unjust, as the western settlers w^d previously know the conditions on which they were to possess their lands. it would be politic as it would reco[~m]end the plan to the present as well as future interest of the states which must decide the fate of it. m^r rutlidge. the gentleman last up had spoken some of his sentiments precisely. property was certainly the principal object of society. if numbers should be made the rule of representation, the atlantic states will be subjected to the western. he moved that the first proposition in the report be postponed in order to take up the following viz "that the suffrages of the several states be regulated and proportioned according to the sums to be paid towards the general revenue by the inhabitants of each state respectively: that an apportionment of suffrages, according to the ratio aforesaid shall be made and regulated at the end of ---years from the 1^{st} meeting of the legislature of the u. s., and at the end of every ---years but that for the present, and until the period above mentioned, the suffrages shall be for n. hampshire ---for massach^{ts} ---&c. col. mason said the case of new states was not unnoticed in the committee; but it was thought and he was himself decidedly of opinion that if they made a part of the union, they ought to be subject to no unfavorable discriminations. obvious considerations required it. m^r randolph concurred with col. mason. on question on m^r rutlidges motion, mas^{ts} no. con^t no. n. y. no. n. j. no. p^a no. del. no. mary^d no. v^a no. n. c. no. s. c. ay. geo. not on floor. friday july 6^{th} in convention m^r gov^r morris moved to commit so much of the report as relates to "1 member for every 40,000 inhabitants." his view was that they might absolutely fix the number for each state in the first instance; leaving the legislature at liberty to provide for changes in the relative importance of the states, and for the case of new states. m^r wilson 2^{ded} the motion; but with a view of leaving the committee under no implied shackles. m^r ghorum apprehended great inconveniency from fixing directly the number of representatives to be allowed to each state. he thought the number of inhabitants the true guide; tho' perhaps some departure might be expedient from the full proportion. the states also would vary in their relative extent by separations of parts of the largest states. a part of virg^a is now on the point of a separation. in the province of mayne a convention is at this time deliberating on a separation from mas^{ts}. in such events the number of representatives ought certainly to be reduced. he hoped to see all the states made small by proper divisions, instead of their becoming formidable as was apprehended, to the small states. he conceived that let the gen^l government be modified as it might, there would be a constant tendency in the state governm^{ts} to encroach upon it: it was of importance therefore that the extent of the states sh^d be reduced as much & as fast as possible. the stronger the gov^t shall be made in the first instance the more easily will these divisions be effected; as it will be of less consequence in the opinion of the states whether they be of great or small extent. m^r gerry did not think with his colleague that the large states ought to be cut up. this policy has been inculcated by the middling and smaller states, ungenerously & contrary to the spirit of the confederation. ambitious men will be apt to solicit needless divisions, till the states be reduced to the size of counties. if this policy should still actuate the small states, the large ones cou'd not confederate safely with them; but would be obliged to consult their safety by confederating only with one another. he favored the commitment and thought that representation ought to be in the combined ratio of numbers of inhabitants and of wealth, and not of either singly. m^r king wished the clause to be committed, chiefly in order to detach it from the report with which it had no connection. he thought also that the ratio of representation proposed could not be safely fixed, since in a century & a half our computed increase of population would carry the number of representatives to an enormous excess; that y^e number of inhabitants was not the proper index of ability & wealth; that property was the primary object of society; and that in fixing a ratio this ought not to be excluded from the estimate.--with regard to new states, he observed that there was something peculiar in the business which had not been noticed. the u. s. were now admitted to be proprietors of the country n. west of the ohio. cong^s by one of their ordinances have impoliticly laid it out into ten states, and have made it a fundamental article of compact with those who may become settlers, that as soon as the number in any one state shall equal that of the smallest of the 13 original states, it may claim admission into the union. delaware does not contain it is computed more than 35,000 souls, and for obvious reasons will not increase much for a considerable time. it is possible then that if this plan be persisted in by cong^s 10 new votes may be added, without a greater addition of inhabitants than are represented by the single vote of pen^a. the plan as it respects one of the new states is already irrevocable, the sale of the lands having commenced, and the purchasers & settlers will immediately become entitled to all the privileges of the compact. m^r butler agreed to the commitment if the committee were to be left at liberty. he was persuaded that the more the subject was examined, the less it would appear that the number of inhabitants would be a proper rule of proportion. if there were no other objection the changeableness of the standard would be sufficient. he concurred with those who thought some balance was necessary between the old & the new states. he contended strenuously that property was the only just measure of representation. this was the great object of govern^t; the great cause of war; the great means of carrying it on. m^r pinkney saw no good reason for committing. the value of land had been found on full investigation to be an impracticable rule. the contributions of revenue including imports & exports must be too changeable in their amount; too difficult to be adjusted; and too injurious to the non-commercial states. the number of inhabitants appeared to him the only just & practicable rule. he thought the blacks ought to stand on an equality with the whites: but w^d agree to the ratio settled by cong^s. he contended that cong^s had no right under the articles of confederation to authorize the admission of new states; no such case having been provided for. m^r davy was for committing the clause in order to get at the merits of the question arising on the report. he seemed to think that wealth or property ought to be represented in the 2^d branch; and numbers in the 1^{st} branch. on the motion for committing as made by m^r gov^r morris, mass^{ts} ay. con^t ay. n. y. no. n. j. no. p^a ay. del. no. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. the members app^d by ballot were m^r gov^r morris, m^r gorham, m^r randolph, m^r rutlidge, m^r king. m^r wilson signified that his view in agreeing to the co[~m]itm^t was that the com^e might consider the propriety of adopting a scale similar to that established by the constitution of mass^{ts} which w^d give an advantage to y^e small states without substantially departing from the rule of proportion. m^r wilson & m^r mason moved to postpone the clause relating to money bills in order to take up the clause relating to an equality of votes in the second branch. on the question mass^{ts} no. con^t no. n. y. ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. ay. geo. ay. the clause relating to equality of votes being under consideration, doc^r franklin observed that this question could not be properly put by itself, the co[~m]ittee having reported several propositions as mutual conditions of each other. he could not vote for it if separately taken, but should vote for the whole together. col. mason perceived the difficulty & suggested a reference of the rest of the report to y^e committee just appointed, that the whole might be brought into one view. m^r randolph disliked y^e reference to that committee, as it consisted of members from states opposed to the wishes of the smaller states, and could not therefore be acceptable to the latter. m^r martin & m^r jenifer moved to postpone the clause till the com^e last appointed sh^d report. m^r madison observed that if the uncommitted part of the report was connected with the part just committed, it ought also to be committed; if not connected, it need not be postponed till report should be made. on the question for postponing, moved by m^r martin & m^r jenifer,--con^t n. j. del. m^d v^a geo. ay. p^a n. c. s. c. no. mass. n. y. divided. the 1^{st} clause relating to the originating of money bills was then resumed. m^r govern^r morris was opposed to a restriction of this right in either branch, considered merely in itself and as unconnected with the point of representation in the 2^d branch. it will disable the 2^d branch from proposing its own money plans, and giving the people an opportunity of judging by comparison of the merits of those proposed by the 1^{st} branch. m^r wilson could see nothing like a concession here on the part of the smaller states. if both branches were to say yes or no, it was of little consequence which should say yes or no first, which last. if either was indiscriminately to have the right of originating, the reverse of the report, would he thought be most proper; since it was a maxim that the least numerous body was the fittest for deliberation; the most numerous for decision. he observed that this discrimination had been transcribed from the british into several american constitutions. but he was persuaded that on examination of the american experiments it would be found to be a trifle light as air. nor could he ever discover the advantage of it in the parliamentary history of g. britain. he hoped if there was any advantage in the privilege, that it would be pointed out. m^r williamson thought that if the privilege were not common to both branches it ought rather to be confined to the 2^d as the bills in that case would be more narrowly watched, than if they originated with the branch having most of the popular confidence. m^r mason. the consideration which weighed with the committee was that the 1^{st} branch would be the immediate representatives of the people, the 2^d would not. should the latter have the power of giving away the people's money, they might soon forget the source from whence they received it. we might soon have an aristocracy. he had been much concerned at the principles which had been advanced by some gentlemen, but had the satisfaction to find they did not generally prevail. he was a friend to proportional representation in both branches; but supposed that some points must be yielded for the sake of accomodation. m^r wilson. if he had proposed that the 2^d branch should have an independent disposal of public money, the observations of (col. mason) would have been a satisfactory answer. but nothing could be farther from what he had said. his question was how is the power of the 1^{st} branch increased or that of the 2^d diminished by giving the proposed privilege to the former? where is the difference, in which branch it begins, if both must concur, in the end? m^r gerry would not say that the concession was a sufficient one on the part of the small states. but he could not but regard it in the light of a concession. it w^d make it a constitutional principle that the 2^d branch were not possessed of the confidence of the people in money matters, which w^d lessen their weight & influence. in the next place if the 2^d branch were dispossessed of the privilege, they w^d be deprived of the opportunity which their continuance in office 3 times as long as the 1^{st} branch would give them of making three successive essays in favor of a particular point. m^r pinkney thought it evident that the concession was wholly on one side, that of the large states, the privilege of originating money bills being of no account. m^r gov^r morris had waited to hear the good effects of the restriction. as to the alarm sounded, of an aristocracy, his creed was that there never was, nor ever will be a civilized society without an aristocracy. his endeavor was to keep it as much as possible from doing mischief. the restriction if it has any real operation, will deprive us of the services of the 2^d branch in digesting & proposing money bills of which it will be more capable than the 1^{st} branch. it will take away the responsibility of the 2^d branch, the great security for good behavior. it will always leave a plea, as to an obnoxious money bill that it was disliked, but could not be constitutionally amended; nor safely rejected. it will be a dangerous source of disputes between the two houses. we should either take the british constitution altogether or make one for ourselves. the executive there has dissolved two houses as the only cure for such disputes. will our executive be able to apply such a remedy? every law directly or indirectly takes money out of the pockets of the people. again what use may be made of such a privilege in case of great emergency? suppose an enemy at the door, and money instantly & absolutely necessary for repelling him, may not the popular branch avail itself of this duress, to extort concessions from the senate destructive of the constitution itself. he illustrated this danger by the example of the long parliament's exped^{ts} for subverting the h. of lords; concluding on the whole that the restriction would be either useless or pernicious. doc^r franklin did not mean to go into a justification of the report, but as it had been asked what would be the use of restraining the 2^d branch from medling with money bills, he could not but remark that it was always of importance that the people should know who had disposed of their money, & how it had been disposed of. it was a maxim that those who feel, can best judge. this end would, he thought, be best attained, if money affairs were to be confined to the immediate representatives of the people. this was his inducement to concur in the report. as to the danger or difficulty that might arise from a negative in the 2^d where the people w^d not be proportionately represented, it might easily be got over by declaring that there should be no such negative; or if that will not do, by declaring that there shall be no such branch at all. m^r martin said that it was understood in the committee that the difficulties and disputes which had been apprehended, should be guarded ag^{st} in the detailing of the plan. m^r wilson. the difficulties & disputes will increase with the attempts to define & obviate them. queen anne was obliged to dissolve her parliam^t in order to terminate one of these obstinate disputes between the two houses. had it not been for the mediation of the crown, no one can say what the result would have been. the point is still sub judice in england. he approved of the principles laid down by the honble president (doct^r franklin) his colleague, as to the expediency of keeping the people informed of their money affairs. but thought they would know as much, and be as well satisfied, in one way as in the other. gen^l pinkney was astonished that this point should have been considered as a concession. he remarked that the restriction to money bills had been rejected on the merits singly considered, by 8 states ag^{st} 3. and that the very states which now called it a concession, were then ag^{st} it as nugatory or improper in itself. on the question whether the clause relating to money bills in the report of the com^e consisting of a member from each state, sh^d stand as part of the report mass^{ts} divid^d con^t ay. n. y. div^d. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. no. geo. div^d a question was then raised whether the question was carried in the affirmative; there being but 5 ays out of 11. states present. the words of the rule are (see may 28). on this question: mas. con^t n. j. p^a del. m^d n. c. s. c. geo. ay. n. y. v^a no (in several preceding instances like votes had sub silentio been entered as decided in the affirmative.) adjourned saturday, july 7. in convention. "shall the clause allowing each state one vote in the 2^d branch, stand as part of the report,"? being taken up-m^r gerry. this is the critical question. he had rather agree to it than have no accommodation. a govern^t short of a proper national plan, if generally acceptable, would be preferable to a proper one which if it could be carried at all, would operate on discontented states. he thought it would be best to suspend the question till the comm^e yesterday appointed, should make report. m^r sherman supposed that it was the wish of every one that some gen^l gov^t should be established. an equal vote in the 2^d branch would, he thought, be most likely to give it the necessary vigor. the small states have more vigor in their gov^{ts} than the large ones, the more influence therefore the large ones have, the weaker will be the gov^t. in the large states it will be most difficult to collect the real & fair sense of the people. fallacy & undue influence will be practised with most success; and improper men will most easily get into office. if they vote by states in the 2^d branch, and each state has an equal vote, there must be always a majority of states as well as a majority of the people on the side of public measures, & the gov^t will have decision and efficacy. if this be not the case in the 2^d branch there may be a majority of states ag^{st} public measures, and the difficulty of compelling them to abide by the public determination, will render the government feebler than it has ever yet been. m^r wilson was not deficient in a conciliating temper, but firmness was sometimes a duty of higher obligation. conciliation was also misapplied in this instance. it was pursued here rather among the representatives, than among the constituents; and it w^d be of little consequence if not established among the latter; and there could be little hope of its being established among them if the foundation should not be laid in justice and right. on question shall the words stand as part of the report? mass^{ts} div^d. con^t ay. n. y. ay. n. j, ay. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. no. geo. div^d (note. several votes were given here in the affirmative or were div^d because another final question was to be taken on the whole report.) m^r gerry[127] thought it would be proper to proceed to enumerate & define the powers to be vested in the gen^l gov^t before a question on the report should be taken as to the rule of representation in the 2^d branch. [127] king gives the three speeches of gerry, madison and patterson as follows: "_gerry._ i agree to the measure, provided that the first br. (h. of reps.) shall originate money bills and money appropriations. the prejudices as well as the interest of our constituents must be regarded--two or three thousand men are in office in the states--their influence will be in favor of an equality of votes among the states. "_madison._ equality in the senate will enable a minority to hold a majority, and to oblige them to submit to their interests, or they will withdraw their assent to measures essential and necessary to the general good. i have known one man, when the state was represented by only two, and they were divided, oppose six states in congress on an important occasion for three days, and finally compel them to gratify his caprice in order to obtain his suffrage. the senate will possess certain exclusive powers, such as the appointments to office, if the states have equal votes; a minority of people will appoint the great offices. besides the small states may be near the seat of govt.--a bare quorum of the h. of r. may be easily assembled, and carry a bill against the sense of a majority if all were present, and the senate, tho' all were present, might confirm such bill. virginia has objected to every addition of the powers of congress, because she has only 1/13 of the power when she ought to have one sixth. "_paterson._ i hope the question will be taken: if we do not give equal votes in the senate to the states, the small states agreeing that money bills and appropriations shall originate in the h. of reps., elected according to numbers, it must not be expected that the small states will agree to the amendments of the confederation. let us decide this question and lose no more time. i think that i shall vote against the provision, because i think that the exclusive originating of money bills & appropriations by the h. of reps. is giving up too much on the part of the small states."--king's _life and correspondence of rufus king_, i., 613. m^r madison, observed that it w^d be impossible to say what powers could be safely & properly vested in the gov^t before it was known, in what manner the states were to be represented in it. he was apprehensive that if a just representation were not the basis of the gov^t it would happen, as it did when the articles of confederation were depending, that every effectual prerogative would be withdrawn or withheld, and the new gov^t w^d be rendered as impotent and as shortlived as the old. m^r patterson would not decide whether the privilege concerning money bills were a valuable consideration or not: but he considered the mode & rule of representation in the 1^{st} branch as fully so; and that after the establishment of that point, the small states would never be able to defend themselves without an equality of votes in the 2^d branch. there was no other ground of accommodation. his resolution was fixt. he would meet the large states on that ground and no other. for himself he should vote ag^{st} the report, because it yielded too much. m^r gov^r morris. he had no resolution unalterably fixed except to do what should finally appear to him right. he was ag^{st} the report because it maintained the improper constitution of the 2^d branch. it made it another congress, a mere whisp of straw. it had been s^d (by m^r gerry) that the new govern^t would be partly national, partly federal; that it ought in the first quality to protect individuals; in the second, the states. but in what quality was it to protect the aggregate interest of the whole. among the many provisions which had been urged, he had seen none for supporting the dignity and splendor of the american empire. it had been one of our greatest misfortunes that the great objects of the nation had been sacrificed constantly to local views; in like manner as the general interests of states had been sacrificed to those of the counties. what is to be the check in the senate? none; unless it be to keep the majority of the people from injuring particular states. but particular states ought to be injured for the sake of a majority of the people, in case their conduct should deserve it. suppose they should insist on claims evidently unjust, and pursue them in a manner detrimental to the whole body. suppose they should give themselves up to foreign influence. ought they to be protected in such cases. they were originally nothing more than colonial corporations. on the declaration of independence, a governm^t was to be formed. the small states aware of the necessity of preventing anarchy, and taking advantage of the moment, extorted from the large ones an equality of votes. standing now on that ground, they demand under the new system greater rights as men, than their fellow citizens of the large states. the proper answer to them is that the same necessity of which they formerly took advantage, does not now exist, and that the large states are at liberty now to consider what is right, rather than what may be expedient. we must have an efficient gov^t and if there be an efficiency in the local gov^{ts} the former is impossible. germany alone proves it. notwithstanding their common diet, notwithstanding the great prerogatives of the emperor as head of the empire, and his vast resources, as sovereign of his particular dominions, no union is maintained; foreign influence disturbs every internal operation, & there is no energy whatever in the general governm^t. whence does this proceed? from the energy of the local authorities; from its being considered of more consequence to support the prince of hesse, than the happiness of the people of germany. do gentlemen wish this to be y^e case here. good god, sir, is it possible they can so delude themselves. what if all the charters & constitutions of the states were thrown into the fire, and all their demagogues into the ocean. what would it be to the happiness of america. and will not this be the case here if we pursue the train in w^{ch} the business lies. we shall establish an aulic council without an emperor to execute its decrees. the same circumstances which unite the people here, unite them in germany. they have there a common language, a common law, common usages and manners, and a common interest in being united; yet their local jurisdictions destroy every tie. the case was the same in the grecian states. the united netherlands are at this time torn in factions. with these examples before our eyes shall we form establishments which must necessarily produce the same effects. it is of no consequence from what districts the 2^d branch shall be drawn, if it be so constituted as to yield an asylum ag^{st} these evils. as it is now constituted he must be ag^{st} its being drawn from the states in equal portions. but still he was ready to join in devising such an amendment of the plan, as will be most likely to secure our liberty & happiness. m^r sherman & m^r elseworth moved to postpone the question on the report from the committee of a member from each state, in order to wait for the report from the com^e of 5 last appointed. mass^{ts} ay. con^t ay. n. y. no. n. j. ay. p^a ay. del. ay. maryland ay. v^a no. n. c. no. s. c. no. geo. no. adj^d. monday july 9^{th} in convention. m^r daniel carroll, from maryland took his seat. m^r gov^r morris delivered a report from the com^e of 5 members to whom was committed the clause in the report of the com^e consisting of a member from each state, stating the proper ratio of representatives in the 1^{st} branch, to be as 1 to every 40,000 inhabitants, as follows viz "the committee to whom was referred the 1^{st} clause of the 1^{st} proposition reported from the grand committee, beg leave to report: i. that in the 1^{st} meeting of the legislature the 1^{st} branch thereof consist of 56. members of which number n. hampshire shall have 2, mass^{ts} 7, r. i^d 1, con^t 4, n. y. 5, n. j. 3, p^a 8, del. 1, m^d 4, v^a 9, n. c. 5, s. c. 5, geo. 2. ii. but as the present situation of the states may probably alter as well in point of wealth as in the number of their inhabitants, that the legislature be authorized from time to time to augment y^e number of representatives. and in case any of the states shall hereafter be divided, or any two or more states united, or any new states created within the limits of the united states, the legislature shall possess authority to regulate the number of representatives in any of the foregoing cases, upon the principles of their wealth and number of inhabitants." m^r sherman wished to know on what principles or calculations the report was founded. it did not appear to correspond with any rule of numbers, or of any requisition hitherto adopted by cong^s m^r gorham. some provision of this sort was necessary in the outset. the number of blacks & whites with some regard to supposed wealth was the general guide. fractions could not be observed. the legisl^{re} is to make alterations from time to time as justice & propriety may require. two objections prevailed ag^{st} the rate of 1 member for every 40,000 inh^{ts}. the 1^{st} was that the representation would soon be too numerous: the 2^d that the west^n states who may have a different interest, might if admitted on that principle by degrees, outvote the atlantic. both these objections are removed. the number will be small in the first instance and may be continued so. and the atlantic states having y^e gov^t in their own hands, may take care of their own interest, by dealing out the right of representation in safe proportions to the western states. these were the views of the committee. m^r l. martin wished to know whether the com^e were guided in the ratio, by the wealth or number of inhabitants, of the states, or by both; noting its variations from former apportionments by cong^s m^r gov^r morris & m^r rutlidge moved to postpone the 1^{st} paragraph relating to the number of members to be allowed each state in the first instance, and to take up the 2^d paragraph authorizing the legisl^{re} to alter the number from time to time according to wealth & inhabitants. the motion was agreed to nem. con. on question on the 2^d parag^h taken without any debate mass^{ts} ay. con^t ay. n. y. no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r sherman moved to refer the 1^{st} part apportioning the representatives, to a comm^e of a member from each state. m^r gov^r morris seconded the motion; observing that this was the only case in which such committees were useful. m^r williamson thought it would be necessary to return to the rule of numbers, but that the western states stood on different footing. if their property shall be rated as high as that of the atlantic states, then their representation ought to hold a like proportion. otherwise if their property was not to be equally rated. m^r gov^r morris. the report is little more than a guess. wealth was not altogether disregarded by the com^e. where it was apparently in favor of one state, whose n^{os} were superior to the numbers of another, by a fraction only, a member extraordinary was allowed to the former: and so vice versa. the committee meant little more than to bring the matter to a point for the consideration of the house. m^r reed asked why georgia was allowed 2 members, when her number of inhabitants had stood below that of delaware. m^r gov^r morris. such is the rapidity of the population of that state, that before the plan takes effect, it will probably be entitled to 2 representatives. m^r randolph, disliked the report of the com^e but had been unwilling to object to it. he was apprehensive that as the number was not be changed, till the nat^l legislature should please, a pretext would never be wanting to postpone alterations, and keep the power in the hands of those possessed of it. he was in favor of the commitm^t to a member from each state. m^r patterson considered the proposed estimate for the future according to the combined rules of numbers and wealth, as too vague. for this reason n. jersey was ag^{st} it. he could regard negroes slaves in no light but as property. they are no free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, & like other property entirely at the will of the master. has a man in virg^a a number of votes in proportion to the number of his slaves? and if negroes are not represented in the states to which they belong, why should they be represented in the gen^l gov^t. what is the true principle of representation? it is an expedient by which an assembly of certain individ^{ls} chosen by the people is substituted in place of the inconvenient meeting of the people themselves. if such a meeting of the people was actually to take place, would the slaves vote? they would not. why then sh^d they be represented. he was also ag^{st} such an indirect encouragem^t of the slave trade; observing that cong^s in their act relating to the change of the 8 art: of confed^n had been ashamed to use the term "slaves" & had substituted a description. m^r madison reminded m^r patterson that his doctrine of representation which was in its principle the genuine one, must forever silence the pretensions of the small states to an equality of votes with the large ones. they ought to vote in the same proportion in which their citizens would do, if the people of all the states were collectively met. he suggested as a proper ground of compromise, that in the first branch the states should be represented according to their number of free inhabitants; and in the 2^d which had for one of its primary objects the guardianship of property, according to the whole number, including slaves. m^r butler urged warmly the justice & necessity of regarding wealth in the apportionment of representation. m^r king had always expected that as the southern states are the richest, they would not league themselves with the north^n unless some respect were paid to their superior wealth. if the latter expect those preferential distinctions in commerce, & other advantages which they will derive from the connexion they must not expect to receive them without allowing some advantages in return. eleven out of 13 of the states had agreed to consider slaves in the apportionment of taxation; and taxation and representation ought to go together. on the question for committing the first paragraph of the report to a member from each state mass^{ts} ay. con^t ay. n. y. no. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. the com^e appointed were m^r king, m^r sherman, m^r yates, m^r brearly, m^r gov^r morris, m^r reed, m^r carrol, m^r madison, m^r williamson, m^r rutlidge, m^r houston. adj^d. tuesday july 10. in convention. m^r king reported from the com^e yesterday appointed that the states at the 1^{st} meeting of the general legislature, should be represented by 65 members, in the following proportions, to wit n. hampshire by 3, mass^{ts} 8, r. is^d 1, con^t 5, n. y. 6, n. j. 4, p^a 8, del. 1, m^d 6, v^a 10, n. c. 5, s. c. 5, georgia 3. m^r rutlidge moved that n. hampshire be reduced from 3 to 2. members. her numbers did not entitle her to 3 and it was a poor state. gen^l pinkney seconds the motion. m^r king. n. hampshire has probably more than 120,000 inhab^{ts} and has an extensive country of tolerable fertility. its inhab^{ts} therefore may be expected to increase fast. he remarked that the four eastern states, having 800,000 souls, have 1/3 fewer representatives than the four southern states, having not more than 700,000 souls, rating the blacks as 5 for 3. the eastern people will advert to these circumstances, and be dissatisfied. he believed them to be very desirous of uniting with their southern brethren, but did not think it prudent to rely so far on that disposition as to subject them to any gross inequality. he was fully convinced that the question concerning a difference of interests did not lie where it had hitherto been discussed, between the great & small states; but between the southern & eastern. for this reason he had been ready to yield something in the proportion of representatives for the security of the southern. no principle would justify the giving them a majority. they were brought as near an equality as was possible. he was not averse to giving them a still greater security, but did not see how it could be done. gen^l pinkney. the report before it was committed was more favorable to the s. states than as it now stands. if they are to form so considerable a minority, and the regulation of trade is to be given to the gen^l government, they will be nothing more than overseers for the northern states. he did not expect the s. states to be raised to a majority of representatives, but wished them to have something like an equality. at present by the alterations of the com^e in favor of the n. states they are removed farther from it than they were before. one member indeed had been added to virg^a which he was glad of as he considered her as a southern state. he was glad also that the members of georgia were increased. m^r williamson was not for reducing n. hampshire from 3 to 2, but for reducing some others. the south^n interest must be extremely endangered by the present arrangement. the north^n states are to have a majority in the first instance and the means of perpetuating it. m^r dayton observed that the line between north^n & southern interest had been improperly drawn; that p^a was the dividing state, there being six on each side of her. gen^l pinkney urged the reduction, dwelt on the superior wealth of the southern states, and insisted on its having its due weight in the government. m^r gov^r morris regretted the turn of the debate. the states he found had many representatives on the floor. few he fears were to be deemed the representatives of america. he thought the southern states have by the report more than their share of representation. property ought to have its weight, but not all the weight. if the south^n states are to supply money. the north^n states are to spill their blood. besides, the probable revenue to be expected from the s. states has been greatly overrated. he was ag^{st} reducing n. hampshire. m^r randolph was opposed to a reduction of n. hampshire, not because she had a full title to three members; but because it was in his contemplation 1. to make it the duty instead of leaving it in the discretion of the legislature to regulate the representation by a periodical census. 2. to require more than a bare majority of votes in the legislature in certain cases & particularly in commercial cases. on the question for reducing n. hampshire from 3 to 2 represent^s it passed in the negative mass^{ts} no. con^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. no.[128] [128] in printed journal. n. c. no. geo. ay. note in madison's hand. gen^l pinkney and m^r alex^r martin moved that 6 rep^s instead of 5 be allowed to n. carolina. on the question, it passed in the negative mass^{ts} no. con^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. gen^l pinkney & m^r butler made the same motion in favor of s. carolina on the question it passed in the negative mass^{ts} no. con^t no. n. y. no. n. j. no. p^a no. del. ay. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. gen^l pinckney & m^r houston moved that georgia be allowed 4 instead of 3 rep^s urging the unexampled celerity of its population. on the question, it passed in the negative mass^{ts} no. con^t no. n. y. no. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r madison, moved that the number allowed to each state be doubled. a _majority_ of a _quorum_ of _65_ members, was too small a number to represent the whole inhabitants of the u. states; they would not possess enough of the confidence of the people, and w^d be too sparsely taken from the people, to bring with them all the local information which would be frequently wanted. double the number will not be too great, even with the future additions from new states. the additional expence was too inconsiderable to be regarded in so important a case. and as far as the augmentation might be unpopular on that score, the objection was overbalanced by its effect on the hopes of a greater number of the popular candidates. m^r elseworth urged the objection of expence, & that the greater the number, the more slowly would the business proceed; and the less probably be decided as it ought, at last. he thought the number of representatives too great in most of the state legislatures; and that a large number was less necessary in the gen^l legislature than in those of the states, as its business would relate to a few great national objects only. m^r sherman would have preferred 50 to 65. the great distance they will have to travel will render their attendance precarious and will make it difficult to prevail on a sufficient number of fit men to undertake the service. he observed that the expected increase from new states also deserved consideration. m^r gerry was for increasing the number beyond 65. the larger the number, the less the danger of their being corrupted. the people are accustomed to & fond of a numerous representation, and will consider their rights as better secured by it. the danger of excess in the number may be guarded ag^{st} by fixing a point within which the number shall always be kept. col. mason admitted that the objection drawn from the consideration of expence, had weight both in itself, and as the people might be affected by it. but he thought it outweighed by the objections ag^{st} the smallness of the number. 38, will he supposes, as being a majority of 65. form a quorum. 20 will be a majority of 38. this was certainly too small a number to make laws for america. they would neither bring with them all the necessary information relative to various local interests, nor possess the necessary confidence of the people. after doubling the number, the laws might still be made by so few as almost to be objectionable on that account. m^r read was in favor of the motion. two of the states (del. & r. i.) would have but a single member if the aggregate number should remain at 65. and in case of accident to either of these one state w^d have no representative present to give explanations or informations of its interests or wishes. the people would not place their confidence in so small a number. he hoped the objects of the gen^l gov^t would be much more numerous than seemed to be expected by some gentlemen, and that they would become more & more so. as to new states the highest number of rep^s for the whole might be limited, and all danger of excess thereby prevented. m^r rutlidge opposed the motion. the representatives were too numerous in all the states. the full number allotted to the states may be expected to attend, & the lowest possible quorum sh^d not therefore be considered. the interests of their constituents will urge their attendance too strongly for it to be omitted: and he supposed the gen^l legislature would not sit more than 6 or 8 weeks in the year. on the question for doubling the number, it passed in the negative mas^{ts} no. con^t no. n. y. no. n. j. no. p^a no. del. ay. m^d no. v^a ay. n. c. no. s. c. no. geo. no. on the question for agreeing to the apportionment of rep^s as amended by the last committee, it passed in the affirmative mas. ay. con^t ay. n. y. ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. m^r broom gave notice to the house that he had concurred with a reserve to himself of an intention to claim for his state an equal voice in the 2^d branch; which he thought could not be denied after this concession of the small states as to the first branch. m^r randolph moved as an amendment to the report of the comm^e of five "that in order to ascertain the alterations in the population & wealth of the several states the legislature should be required to cause a census, and estimate to be taken within one year after its first meeting; and every ---years thereafter, and that the legisl^{re} arrange the representation accordingly." m^r gov^r morris opposed it as fettering the legislature too much. advantage may be taken of it in time of war or the apprehension of it, by new states to extort particular favors. if the mode was to be fixed for taking a census, it might certainly be extremely inconvenient: if unfixt the legislature may use such a mode as will defeat the object: and perpetuate the inequality. he was always ag^{st} such shackles on the legisl^{re}. they had been found very pernicious in most of the state constitutions. he dwelt much on the danger of throwing such a preponderancy into the western scale, suggesting that in time the western people w^d outnumber the atlantic states. he wished therefore to put it in the power of the latter to keep a majority of votes in their own hands. it was objected he said that if the legisl^{re} are left at liberty, they will never readjust the representation. he admitted that this was possible; but he did not think it probable unless the reasons ag^{st} a revision of it were very urgent & in this case, it ought not to be done. it was moved to postpone the proposition of m^r randolph in order to take up the following, viz. "that the committee of eleven, to whom was referred the report of the committee of five on the subject of representation, be requested to furnish the convention with the principles on which they grounded the report," which was disagreed to; s. c. alone voting in the affirmative. adjourned wednesday july 11. in convention. m^r randolph's motion requiring the legisl^{re} to take a periodical census for the purpose of redressing inequalities in the representation was resumed. m^r sherman was ag^{st}. shackling the legislature too much. we ought to choose wise & good men, and then confide in them. m^r mason. the greater the difficulty we find in fixing a proper rule of representation, the more unwilling ought we to be, to throw the task from ourselves on the gen^l legisl^{re}. he did not object to the conjectural ratio which was to prevail in the outset; but considered a revision from time to time according to some permanent & precise standard as essential to y^e fair representation required in the 1^{st} branch. according to the present population of america, the north^n part of it had a right to preponderate, and he could not deny it. but he wished it not to preponderate hereafter when the reason no longer continued. from the nature of man we may be sure that those who have power in their hands will not give it up while they can retain it. on the contrary we know that they will always when they can rather increase it. if the s. states therefore should have 3/4 of the people of america within their limits, the northern will hold fast the majority of representatives. 1/4 will govern the 3/4. the s. states will complain; but they may complain from generation to generation without redress. unless some principle therefore which will do justice to them hereafter shall be inserted in the constitution, disagreable as the declaration was to him, he must declare he could neither vote for the system here, nor support it, in his state. strong objections had been drawn from the danger to the atlantic interests from new western states. ought we to sacrifice what we know to be right in itself, lest it should prove favorable to states which are not yet in existence. if the western states are to be admitted into the union, as they arise, they must, he w^d repeat, be treated as equals, and subjected to no degrading discriminations. they will have the same pride & other passions which we have and will either not unite with or will speedily revolt from the union, if they are not in all respects placed on an equal footing with their brethren. it has been said they will be poor, and unable to make equal contributions to the general treasury. he did not know but that in time they would be both more numerous & more wealthy than their atlantic brethren. the extent & fertility of their soil, made this probable; and though spain might for a time deprive them of the natural outlet for their productions, yet she will, because she must, finally yield to their demands. he urged that numbers of inhabitants; though not always a precise standard of wealth was sufficiently so for every substantial purpose. m^r williamson was for making it a duty of the legislature to do what was right & not leaving it at liberty to do or not to do it. he moved that m^r randolph's propositions be postpon^d in order to consider the following "that in order to ascertain the alterations that may happen in the population & wealth of the several states, a census shall be taken of the free white inhabitants and 3/5^{ths} of those of other descriptions on the 1^{st} year after this government shall have been adopted and every ---year thereafter; and that the representation be regulated accordingly." m^r randolph agreed that m^r williamson's proposition should stand in the place of his. he observed that the ratio fixt for the 1^{st} meeting was a mere conjecture, that it placed the power in the hands of that part of america, which could not always be entitled to it, that this power would not be voluntarily renounced; and that it was consequently the duty of the convention to secure its renunciation when justice might so require; by some constitutional provisions. if equality between great & small states be inadmissible, because in that case unequal numbers of constituents w^d be represented by equal number of votes; was it not equally inadmissible that a larger & more populous district of america should hereafter have less representation, than a smaller & less populous district. if a fair representation of the people be not secured, the injustice of the gov^t will shake it to its foundations. what relates to suffrage is justly stated by the celebrated montesquieu, as a fundamental article in republican gov^t. if the danger suggested by m^r gov^r morris be real, of advantage being taken of the legislature in pressing moments, it was an additional reason, for tying their hands in such a manner that they could not sacrifice their trust to momentary considerations. cong^s have pledged the public faith to new states, that they shall be admitted on equal terms. they never would or ought to accede on any other. the census must be taken under the direction of the general legislature. the states will be too much interested to take an impartial one for themselves. m^r butler & gen^l pinkney insisted that blacks be included in the rule of representation _equally_ with the whites; and for that purpose moved that the words "three-fifths" be struck out. m^r gerry thought that 3/5 of them was to say the least the full proportion that could be admitted. m^r ghorum. this ratio was fixed by cong^s as a rule of taxation. then it was urged by the delegates representing the states having slaves that the blacks were still more inferior to freemen. at present when the ratio of representation is to be established, we are assured that they are equal to freemen. the arguments on y^e former occasion convinced him that 3/5 was pretty near the just proportion and he should vote according to the same opinion now. m^r butler insisted that the labour of a slave in s. carol^a was as productive & valuable as that of a freeman in mass^{ts}, that as wealth was the great means of defence and utility to the nation they were equally valuable to it with freemen; and that consequently an equal representation ought to be allowed for them in a government which was instituted principally for the protection of property, and was itself to be supported by property. m^r mason could not agree to the motion, notwithstanding it was favorable to virg^a because he thought it unjust. it was certain that the slaves were valuable, as they raised the value of land, increased the exports & imports, and of course the revenue, would supply the means of feeding & supporting an army, and might in cases of emergency become themselves soldiers. as in these important respects they were useful to the community at large, they ought not to be excluded from the estimate of representation. he could not however regard them as equal to freemen and could not vote for them as such. he added as worthy of remark, that the southern states have this peculiar species of property over & above the other species of property common to all the states. m^r williamson reminded m^r ghorum that if the south^n states contended for the inferiority of blacks to whites when taxation was in view, the eastern states on the same occasion contended for their equality. he did not however either then or now concur in either extreme, but approved of the ratio of 3/5. on m^r butler's motion for considering blacks as equal to whites in the apportionm^t of representation mass^{ts} no. con^t no. (n. y. not on floor). n. j. no. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. m^r gov^r morris said he had several objections to the proposition of m^r williamson. 1. it fettered the legislature too much. 2. it would exclude some states altogether who would not have a sufficient number to entitle them to a single representative. 3. it will not consist with the resolution passed on saturday last authorizing the legislature to adjust the representation from time to time on the principles of population & wealth or with the principles of equity. if slaves were to be considered as inhabitants, not as wealth then the s^d resolution would not be pursued. if as wealth, then why is no other wealth but slaves included? these objections may perhaps be removed by amendments. his great objection was that the number of inhabitants was not a proper standard of wealth. the amazing difference between the comparative numbers & wealth of different countries, rendered all reasoning superfluous on the subject. numbers might with greater propriety be deemed a measure of strength, than of wealth, yet the late defence made by g. britain, ag^{st} her numerous enemies proved in the clearest manner, that it is entirely fallacious even in this respect. m^r king thought there was great force in the objections of m^r gov^r morris: he would however accede to the proposition for the sake of doing something. m^r rutlidge contended for the admission of wealth in the estimate by which representation should be regulated. the western states will not be able to contribute in proportion to their numbers; they sh^d not therefore be represented in that proportion. the atlantic states will not concur in such a plan. he moved that "at the end of ---years after the 1^{st} meeting of the legislature, and of every ---years thereafter, the legislature shall proportion the representation according to the principles of wealth & population." m^r sherman thought the number of people alone the best rule for measuring wealth as well as representation; and that if the legislature were to be governed by wealth, they would be obliged to estimate it by numbers. he was at first for leaving the matter wholly to the discretion of the legislature; but he had been convinced by the observation of (m^r randolph & m^r mason), that the _periods_ & the _rule_, of revising the representation ought to be fixt by the constitution. m^r reed thought the legislature ought not to be too much shackled. it would make the constitution like religious creeds, embarrassing to those bound to conform to them & more likely to produce dissatisfaction and scism, than harmony and union. m^r mason objected to m^r rutlidge's motion, as requiring of the legislature something too indefinite & impracticable, and leaving them a pretext for doing nothing. m^r wilson had himself no objection to leaving the legislature entirely at liberty. but considered wealth as an impracticable rule. m^r ghorum. if the convention who are comparatively so little biassed by local views are so much perplexed, how can it be expected that the legislature hereafter under the full biass of those views, will be able to settle a standard. he was convinced by the arguments of others & his own reflections, that the convention ought to fix some standard or other. m^r gov^r morris. the arg^{ts} of others & his own reflections had led him to a very different conclusion. if we can't agree on a rule that will be just at this time, how can we expect to find one that will be just in all times to come. surely those who come after us will judge better of things present, than we can of things future. he could not persuade himself that numbers would be a just rule at any time. the remarks of (m^r mason) relative to the western country had not changed his opinion on that head. among other objections it must be apparent they would not be able to furnish men equally enlightened, to share in the administration of our common interests. the busy haunts of men not the remote wilderness, was the proper school of political talents. if the western people get the power into their hands they will ruin the atlantic interests. the back members are always most averse to the best measures. he mentioned the case of pen^a formerly. the lower part of the state had y^e power in the first instance. they kept it in y^r own hands & the country was y^e better for it. another objection with him ag^{st} admitting the blacks into the census, was that the people of pen^a would revolt at the idea of being put on a footing with slaves. they would reject any plan that was to have such an effect. two objections had been raised ag^{st} leaving the adjustment of the representation from time, to time, to the discretion of the legislature. the 1. was, they would be unwilling to revise it at all. the 2 that by referring to _wealth_ they would be bound by a rule which if willing, they would be unable to execute. the 1^{st} obj^n distrusts their fidelity. but if their duty, their honor & their oaths will not bind them, let us not put into their hands our liberty, and all our other great interests; let us have no gov^t at all. 2. if these ties will bind them, we need not distrust the practicability of the rule. it was followed in part by the com^e in the apportionment of representatives yesterday reported to the house. the best course that could be taken would be to leave the interests of the people to the representatives of the people. m^r madison was not a little surprised to hear this implicit confidence urged by a member who on all occasions, had inculcated so strongly, the political depravity of men, and the necessity of checking one vice and interest by opposing to them another vice & interest. if the representatives of the people would be bound by the ties he had mentioned, what need was there of a senate? what of a revisionary power? but his reasoning was not only inconsistent with his former reasoning, but with itself. at the same time that he recommended this implicit confidence to the southern states in the northern majority, he was still more zealous in exhorting all to a jealousy of a western majority. to reconcile the gentl^n with himself, it must be imagined that he determined the human character by the points of the compass. the truth was that all men having power ought to be distrusted to a certain degree. the case of pen^a had been mentioned where it was admitted that those who were possessed of the power in the original settlement, never admitted the new settlem^{ts} to a due share of it. england was a still more striking example. the power there had long been in the hands of the boroughs, of the minority; who had opposed & defeated every reform which had been attempted. virg^a was in a lesser degree another example. with regard to the western states, he was clear & firm in opinion, that no unfavorable distinctions were admissible either in point of justice or policy. he thought also that the hope of contributions to the treas^y from them had been much underrated. future contributions it seemed to be understood on all hands would be principally levied on imports & exports. the extent and fertility of the western soil would for a long time give to agriculture a preference over manufactures. trials would be repeated till some articles could be raised from it that would bear a transportation to places where they could be exchanged for imported manufactures. whenever the mississippi should be opened to them, which would of necessity be y^e case as soon as their population would subject them to any considerable share of the public burden, imposts on their trade could be collected with less expence & greater certainty, than on that of the atlantic states. in the mean time, as their supplies must pass through the _atlantic states_, their contributions would be levied in the same manner with those of the atlantic states. he could not agree that any substantial objection lay ag^{st} fix^g numbers for the perpetual standard of representation. it was said that representation & taxation were to go together; that taxation and wealth ought to go together, that population & wealth were not measures of each other. he admitted that in different climates, under different forms of gov^t and in different stages of civilization the inference was perfectly just. he would admit that in no situation, numbers of inhabitants were an accurate measure of wealth. he contended however that in the u. states it was sufficiently so for the object in contemplation. altho' their climate varied considerably, yet as the gov^{ts} the laws, and the manners of all were nearly the same, and the intercourse between different parts perfectly free, population, industry, arts, and the value of labour, would constantly tend to equalize themselves. the value of labour might be considered as the principal criterion of wealth and ability to support taxes; and this would find its level in different places where the intercourse should be easy & free, with as much certainty as the value of money or any other thing. wherever labour would yield most, people would resort, till the competition should destroy the inequality. hence it is that the people are constantly swarming from the more to the less populous places--from europe to am^a--from the north^n & middle parts of the u. s. to the southern & western. they go where land is cheaper, because there labour is dearer. if it be true that the same quantity of produce raised on the banks of the ohio is of less value, than on the delaware, it is also true that the same labor will raise twice or thrice, the quantity in the former, that it will raise in the latter situation. col. mason. agreed with m^r gov^r morris that we ought to leave the interests of the people to the representatives of the people; but the objection was that the legislature would cease to be the representatives of the people. it would continue so no longer than the states now containing a majority of the people should retain that majority. as soon as the southern & western population should predominate, which must happen in a few years, the power w^d be in the hands of the minority, and would never be yielded to the majority, unless provided for by the constitution. on the question for postponing m^r williamson's motion, in order to consider that of m^r rutlidge, it passed in the negative, mass^{ts} ay. con^t no. n. j. no. p^a ay. del. ay. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. on the question on the first clause of m^r williamson's motion as to taking a census of the free inhabitants, it passed in the affirmative; mass^{ts} ay. con^t ay. n. j. ay. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. the next clause as to 3/5 of the negroes considered. m^r king being much opposed to fixing numbers as the rule of representation, was particularly so on account of the blacks. he thought the admission of them along with whites at all, would excite great discontents among the states having no slaves. he had never said as to any particular point that he would in no event acquiesce in & support it; but he w^d say that if any in case such a declaration was to be made by him, it would be in this. he remarked that in the temporary allotment of representatives made by the committee, the southern states had received more than the number of their white & three fifths of their black inhabitants entitled them to. m^r sherman. s. carol^a had not more beyond her proportion than n. york & n. hampshire, nor either of them more than was necessary in order to avoid fractions or reducing them below their proportions. georgia had more; but the rapid growth of that state seemed to justify it. in general the allotment might not be just, but considering all circumstances, he was satisfied with it. m^r ghorum. supported the propriety of establishing numbers as the rule. he said that in mass^{ts} estimates had been taken in the different towns, and that persons had been curious enough to compare these estimates with the respective numbers of people; and it had been found even including boston, that the most exact proportion prevailed between numbers & property. he was aware that there might be some weight in what had fallen from his colleague, as to the umbrage which might be taken by the people of the eastern states. but he recollected that when the proposition of cong^s for changing the 8^{th} art: of the confed^n was before the legislature of mass^{ts} the only difficulty then was to satisfy them that the negroes ought not to have been counted equally with whites instead of being counted in ratio of three-fifths only.[129] [129] they were then to have been a rule of taxation only. note in madison's handwriting. m^r wilson did not well see on what principle the admission of blacks in the proportion of three fifths could be explained. are they admitted as citizens? then why are they not admitted on an equality with white citizens? are they admitted as property? then why is not other property admitted into the computation? these were difficulties however which he thought must be overruled by the necessity of compromise. he had some apprehensions also from the tendency of the blending of the blacks with the whites, to give disgust to the people of pen^a, as had been intimated by his colleague (m^r gov^r morris). but he differed from him in thinking numbers of inhab^{ts} so incorrect a measure of wealth. he had seen the western settlem^{ts} of p^a and on a comparison of them with the city of philad^a could discover little other difference, than that property was more unequally divided among individuals here than there. taking the same number in the aggregate in the two situations he believed there would be little difference in their wealth and ability to contribute to the public wants. m^r gov^r morris was compelled to declare himself reduced to the dilemma of doing injustice to the southern states or to human nature, and he must therefore do it to the former. for he could never agree to give such encouragement to the slave trade as would be given by allowing them a representation for their negroes, and he did not believe those states would ever confederate on terms that would deprive them of that trade. on question for agreeing to include 3/5 of the blacks mass^{ts} no. con^t ay. n. j. no. p^a no. del. no. m^d[130] no. v^a ay. n. c. ay. s. c. no. geo. ay. [130] (m^r carrol s^d in explanation of the vote of m^d that he wished the phraseology to be so altered as to obviate if possible the danger which had been expressed of giving umbrage to the eastern & middle states.) note in madison's hand. on the question as to taking census "the first year after the meeting of the legislature" mass^{ts} ay. con^t no. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. no. on filling the blank for the periodical census, with 15 years. agreed to nem. con. m^r madison moved to add, after "15 years," the words "at least" that the legislature might anticipate when circumstances were likely to render a particular year inconvenient. on this motion for adding "at least," it passed in the negative the states being equally divided. mas. ay. con^t no. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. a change of the phraseology of the other clause so as to read, "and the legislature shall alter or augment the representation accordingly," was agreed to nem. con. on the question on the whole resolution of m^r williamson as amended, mas. no. con^t no. n. j. no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. thursday, july 12. in convention. m^r gov^r morris moved to add to the clause empowering the legislature to vary the representation according to the principles of wealth & numbers of inhab^{ts} a "proviso that taxation shall be in proportion to representation." m^r butler contended again that representation s^d be according to the full number of inhab^{ts} including all the blacks; admitting the justice of m^r gov^r morris's motion. m^r mason also admitted the justice of the principle, but was afraid embarrassments might be occasioned to the legislature by it. it might drive the legislature to the plan of requisitions. m^r gov^r morris, admitted that some objections lay ag^{st} his motion, but supposed they would be removed by restraining the rule to _direct_ taxation. with regard to indirect taxes on _exports_ & imports & on consumption the rule would be inapplicable. notwithstanding what had been said to the contrary he was persuaded that the imports & consumption were pretty nearly equal throughout the union. general pinkney liked the idea. he thought it so just that it could not be objected to. but foresaw that if the revision of the census was left to the discretion of the legislature, it would never be carried into execution. the rule must be fixed, and the execution of it enforced by the constitution. he was alarmed at what was said[131] yesterday, concerning the negroes. he was now again alarmed at what had been thrown out concerning the taxing of exports. s. carol^a has in one year exported to the amount of â£600,000 sterling all which was the fruit of the labor of her blacks. will she be represented in proportion to this amount? she will not. neither ought she then to be subject to a tax on it. he hoped a clause would be inserted in the system, restraining the legislature from taxing exports. [131] by m^r gov^r morris. note in madison's handwriting. m^r wilson approved the principle, but could not see how it could be carried into execution; unless restrained to direct taxation. m^r gov^r morris having so varied his motion by inserting the word "direct." it pass^d nem. con. as follows--"provided always that direct taxation ought to be proportioned to representation." m^r davie said it was high time now to speak out. he saw that it was meant by some gentlemen to deprive the southern states of any share of representation for their blacks. he was sure that n. carol^a would never confederate on any terms that did not rate them at least as 3/5. if the eastern states meant therefore to exclude them altogether the business was at an end. d^r johnson, thought that wealth and population were the true, equitable rule of representation; but he conceived that these two principles resolved themselves into one; population being the best measure of wealth. he concluded therefore that y^e number of people ought to be established as the rule, and that all descriptions including blacks _equally_ with the whites, ought to fall within the computation. as various opinions had been expressed on the subject, he would move that a committee might be appointed to take them into consideration and report thereon. m^r gov^r morris. it has been said that it is high time to speak out, as one member, he would candidly do so. he came here to form a compact for the good of america. he was ready to do so with all the states. he hoped & believed that all would enter into such a compact. if they would not he was ready to join with any states that would. but as the compact was to be voluntary, it is in vain for the eastern states to insist on what the south^n states will never agree to. it is equally vain for the latter to require what the other states can never admit; and he verily believed the people of pen^a will never agree to a representation of negroes. what can be desired by these states more than has been already proposed; that the legislature shall from time to time regulate representation according to population & wealth. gen^l pinkney desired that the rule of wealth should be ascertained and not left to the pleasure of the legislature; and that property in slaves should not be exposed to danger under a gov^t instituted for the protection of property. the first clause in the report of the first grand committee was postponed. m^r elseworth. in order to carry into effect the principle established, moved that to add to the last clause adopted by the house the words following, "and that the rule of contribution by direct taxation for the support of the government of the u. states shall be the number of white inhabitants, and three fifths of every other description in the several states, until some other rule that shall more accurately ascertain the wealth of the several states can be devised and adopted by the legislature." m^r butler seconded the motion in order that it might be committed. m^r randolph was not satisfied with the motion. the danger will be revived that the ingenuity of the legislature may evade or pervert the rule so as to perpetuate the power where it shall be lodged in the first instance. he proposed in lieu of m^r elseworth's motion, "that in order to ascertain the alterations in representation that may be required from time to time by changes in the relative circumstances of the states, a census shall be taken within two years from the 1^{st} meeting of the gen^l legislature of the u.s. and once within the term of every ---year afterwards, of all the inhabitants in the manner & according to the ratio recommended by congress in their resolution of the 18^{th} day of ap^l 1783, (rating the blacks at 3/5 of their number) and that the legislature of the u. s. shall arrange the representation accordingly." he urged strenuously that express security ought to be provided for including slaves in the ratio of representation. he lamented that such a species of property existed. but as it did exist the holders of it would require this security. it was perceived that the design was entertained by some of excluding slaves altogether; the legislature therefore ought not to be left at liberty. m^r elseworth withdraws his motion & seconds that of m^r randolph. m^r wilson observed that less umbrage would perhaps be taken ag^{st} an admission of the slaves into the rule of representation, if it should be so expressed as to make them indirectly only an ingredient in the rule, by saying that they should enter into the rule of taxation; and as representation was to be according to taxation, the end would be equally attained. he accordingly moved & was 2^{ded} so to alter the last clause adopted by the house, that together with the amendment proposed the whole should read as follows--provided always that the representation ought to be proportioned according to direct taxation, and in order to ascertain the alterations in the direct taxation which may be required from time to time by the changes in the relative circumstances of the states, resolved that a census be taken within two years from the first meeting of the legislature of the u. states, and once within the term of every ---years afterwards of all the inhabitants of the u.s. in the manner and according to the ratio recommended by congress in their resolution of april 18. 1783; and that the legislature of the u.s. shall proportion the direct taxation accordingly. m^r king. altho' this amendment varies the aspect somewhat, he had still two powerful objections ag^{st} tying down the legislature to the rule of numbers. 1. they were at this time an uncertain index of the relative wealth of the states. 2. if they were a just index at this time it can not be supposed always to continue so. he was far from wishing to retain any unjust advantage whatever in one part of the republic. if justice was not the basis of the connection it could not be of long duration. he must be shortsighted indeed who does not foresee that whenever the southern states shall be more numerous than the northern, they can & will hold a language that will awe them into justice. if they threaten to separate now in case injury shall be done them, will their threats be less urgent or effectual, when force shall back their demands. even in the intervening period, there will be no point of time at which they will not be able to say, do us justice or we will separate. he urged the necessity of placing confidence to a certain degree in every gov^t and did not conceive that the proposed confidence as to a periodical readjustment of the representation exceeded that degree. m^r pinkney moved to amend m^r randolph's motion so as to make "blacks equal to the whites in the ratio of representation." this he urged was nothing more than justice. the blacks are the labourers, the peasants of the southern states: they are as productive of pecuniary resources as those of the northern states. they add equally to the wealth, and considering money as the sinew of war, to the strength of the nation. it will also be politic with regard to the northern states, as taxation is to keep pace with representation. gen^l pinkney moves to insert 6 years instead of two, as the period computing from the 1^{st} meeting of y^e legis^e within which the first census should be taken. on this question for inserting six, instead of "two" in the proposition of m^r wilson, it passed in the affirmative mass^{ts} no. c^t ay. n. j. ay. p^a ay. del. div^d. may^d ay. v^a no. n. c. no. s. c. ay. geo. no. on a question for filling the blank for y^e periodical census with 20 years, it passed in the negative mass^{ts} no. c^t ay. n. j. ay. p. ay. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. on a question for 10 years, it passed in the affirmative. mass. ay. con^t no. n. j. no. p. ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. on m^r pinkney's motion for rating blacks as equal to whites instead of as 3/5. mass. no. con^t no. (d^r johnson ay) n. j. no. p^a no. (3 ag^{st} 2.) del. no. m^d no. v^a no. n. c. no. s. c. ay. geo--ay. m^r randolph's proposition as varied by m^r wilson being read for question on the whole-m^r gerry, urged that the principle of it could not be carried into execution as the states were not to be taxed as states. with regard to taxes in imposts, he conceived they would be more productive where there were no slaves than where there were; the consumption being greater-m^r elseworth. in case of a poll tax there w^d be no difficulty. but there w^d probably be none. the sum allotted to a state may be levied without difficulty according to the plan used by the state in raising its own supplies. on the question of y^e whole proposition; as proportioning representation to direct taxation & both to the white & 3/5 of black inhabitants, & requiring a census within six years--& within every ten years afterwards. mass. div^d. con^t ay. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. div^d. geo. ay. friday, july 13. in convention. it being moved to postpone the clause in the report of the committee of eleven as to the originating of money bills in _the first_ branch, in order to take up the following--"that in the 2^d branch each state shall have an equal voice," m^r gerry, moved to add as an amendment to the last clause agreed to by the house, "that from the first meeting of the legislature of the u.s. till a census shall be taken all monies to be raised for supplying the public treasury by direct taxation shall be assessed on the inhabitants of the several states according to the number of their representatives respectively in the 1^{st} branch." he said this would be as just before as after the census; according to the general principle that taxation & representation ought to go together. m^r williamson feared that n. hampshire will have reason to complain. 3 members were allotted to her as a liberal allowance, for this reason among others, that she might not suppose any advantage to have been taken of her absence. as she was still absent, and had no opportunity of deciding whether she would chuse to retain the number on the condition, of her being taxed in proportion to it, he thought the number ought to be reduced from three to two, before the question was taken on m^r g's motion. m^r read could not approve of the proposition. he had observed he said in the committee a backwardness in some of the members from the large states, to take their full proportion of representatives. he did not then see the motive. he now suspects it was to avoid their due share of taxation. he had no objection to a just & accurate adjustment of representation & taxation to each other. m^r gov^r morris & m^r madison answered that the charge itself involved an acquittal; since notwithstanding the augmentation of the number of members allotted to mass^{ts} & v^a the motion for proportioning the burdens thereto was made by a member from the former state & was approved by m^r m. from the latter who was on the com^e. m^r gov^r morris said that he thought p^a had her due share in 8 members; and he could not in candor ask for more. m^r m. said that having always conceived that the difference of interest in the u. states lay not between the large & small, but the n. & south^n states, and finding that the number of members allotted to the n. states was greatly superior, he should have preferred, an addition of two members to the s. states, to wit one to n. & 1 to s. carl^a rather than of one member to virg^a. he liked the present motion, because it tended to moderate the views both of the opponents & advocates for rating very high, the negroes. m^r elseworth hoped the proposition would be withdrawn. it entered too much into detail. the general principle was already sufficiently settled. as fractions can not be regarded in apportioning the _n^o of representatives_, the rule will be unjust, until an actual census shall be made. after that taxation may be precisely proportioned according to the principle established, to the _number of inhabitants_. m^r wilson hoped the motion would not be withdrawn. if it sh^d it will be made from another quarter. the rule will be as reasonable & just before, as after a census. as to fractional numbers, the census will not destroy, but ascertain them. and they will have the same effect after as before the census; for as he understands the rule, it is to be adjusted not to the number of _inhabitants_, but of _representatives_. m^r sherman opposed the motion. he thought the legislature ought to be left at liberty: in which case they would probably conform to the principles observed by cong^s. m^r mason did not know that virg^a would be a loser by the proposed regulation, but had some scruple as to the justice of it. he doubted much whether the conjectural rule which was to precede the census, would be as just, as it would be rendered by an actual census. m^r elseworth & m^r sherman moved to postpone the motion of m^r gerry. on y^e question, it passed in the negative. mass. no. con^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. question on m^r gerry's motion, it passed in the negative, the states being equally divided. mass. ay. con^t no. n. j. no. _p^a ay._ del. no. m^d no. _v^a no._ n. c. ay. s. c. ay. geo. ay. m^r gerry finding that the loss of the question had proceeded from an objection with some, to the proposed assessment of direct taxes on the _inhabitants_ of the states, which might restrain the legislature to a poll tax, moved his proposition again, but so varied as to authorize the assessment on the _states_, which leaves the mode to the legislature, viz "that from the 1^{st} meeting of the legislature of the u. s. untill a census shall be taken, all monies for supplying the public treasury by direct taxation shall be raised from the said several states according to the number of their representatives respectively in the 1^{st} branch." on this varied question, it passed in the affirmative mas. ay. con^t no. n. j. no. _p^a div^d_ del. no. m^d no. _v^a ay._ n. c. ay. s. c. ay. geo. ay. on the motion of m^r randolph, the vote of saturday last authorizing the legisl^{re} to adjust from time to time, the representation upon the principles of _wealth_ & numbers of inhabitants, was reconsidered by common consent in order to strike out "wealth" and adjust the resolution to that requiring periodical revisions, according to the number of whites & three fifths of the blacks: the motion was in the words following:--"but as the present situation of the states may probably alter in the number of their inhabitants, that the legislature of the u. s. be authorized from time to time to apportion the number of representatives; and in case any of the states shall hereafter be divided or any two or more states united or new states created within the limits of the u. s. the legislature of u. s. shall possess authority to regulate the number of representatives in any of the foregoing cases, upon the principle of their number of inhabitants; according to the provisions hereafter mentioned." m^r gov^r morris opposed the alteration as leaving still incoherence. if negroes were to be viewed as inhabitants, and the revision was to proceed on the principle of numbers of inhab^{ts} they ought to be added in their entire number, and not in the proportion of 3/5. if as property, the word wealth was right, and striking it out would produce the very inconsistency which it was meant to get rid of.--the train of business & the late turn which it had taken, had led him he said, into deep meditation on it, and he w^d candidly state the result. a distinction had been set up & urged, between the n^n and south^n states. he had hitherto considered this doctrine as heretical. he still thought the distinction groundless. he sees however that it is persisted in, and the south^n gentlemen will not be satisfied unless they see the way open to their gaining a majority in the public councils. the consequence of such a transfer of power from the maritime to the interior & landed interest will he foresees be such an oppression of commerce that he shall be obliged to vote for y^e vicious principle of equality in the 2^d branch in order to provide some defence for the n. states ag^{st} it. but to come more to the point; either this distinction is fictitious or real; if fictitious let it be dismissed & let us proceed with due confidence. if it be real, instead of attempting to blend incompatible things, let us at once take a friendly leave of each other. there can be no end of demands for security if every particular interest is to be entitled to it. the eastern states may claim it for their fishery, and for other objects, as the south^n states claim it for their peculiar objects. in this struggle between the two ends of the union, what part ought the middle states in point of policy to take: to join their eastern brethren according to his ideas. if the south^n states get the power into their hands, and be joined as they will be with the interior country, they will inevitably bring on a war with spain for the mississippi. this language is already held. the interior country having no property nor interest exposed on the sea, will be little affected by such a war. he wished to know what security the north^n & middle states will have ag^{st} this danger. it has been said that n. c. s. c., and georgia only will in a little time have a majority of the people of america. they must in that case include the great interior country, and every thing was to be apprehended from their getting the power into their hands. m^r butler. the security the south^n states want is that their negroes may not be taken from them, which some gentlemen within or without doors, have a very good mind to do. it was not supposed that n. c. s. c. & geo. would have more people than all the other states, but many more relatively to the other states than they now have. the people & strength of america are evidently bearing southwardly & s. westw^{dly}. m^r wilson. if a general declaration would satisfy any gentleman he had no indisposition to declare his sentiments. conceiving that all men wherever placed have equal rights and are equally entitled to confidence, he viewed without apprehension the period when a few states should contain the superior number of people. the majority of people wherever found ought in all questions to govern the minority. if the interior country should acquire this majority, it will not only have the right, but will avail itself of it whether we will or no. this jealousy misled the policy of g. britain with regard to america. the fatal maxims espoused by her were that the colonies were growing too fast, and that their growth must be stinted in time. what were the consequences?, first, enmity on our part, then actual separation. like consequences will result on the part of the interior settlements, if like jealousy & policy be pursued on ours. further, if numbers be not a proper rule, why is not some better rule pointed out. no one has yet ventured to attempt it. cong^s have never been able to discover a better. no state as far as he had heard, had suggested any other. in 1783, after elaborate discussion of a measure of wealth all were satisfied then as they are now that the rule of numbers, does not differ much from the combined rule of numbers & wealth. again he could not agree that property was the sole or primary object of gov^t & society. the cultivation & improvement of the human mind was the most noble object. with respect to this object, as well as to other _personal_ rights, numbers were surely the natural & precise measure of representation. and with respect to property, they could not vary much from the precise measure. in no point of view however could the establishm^t of numbers as the rule of representation in the 1^{st} branch vary his opinion as to the impropriety of letting a vicious principle into the 2^d branch.--on the question to strike out _wealth_, & to make the change as moved by m^r randolph, it passed in the affirmative. mas. ay. con^t ay. n. j. ay. p^a ay. del div^d. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r reed moved to insert after the word "divided," "or enlarged by addition of territory" which was agreed to nem con. (his object probably was to provide for such cases as an enlargem^t of delaware by annexing to it the peninsula on the east side of the chesapeak.) adjourned. saturday, july 14. in convention. m^r l. martin called for the question on the whole report, including the parts relating to the origination of money bills, and the equality of votes in the 2^d branch. m^r gerry, wished before the question should be put, that the attention of the house might be turned to the dangers apprehended from western states. he was for admitting them on liberal terms, but not for putting ourselves in their hands. they will if they acquire power like all men, abuse it. they will oppress commerce, and drain our wealth into the western country. to guard ag^{st} these consequences, he thought it necessary to limit the number of new states to be admitted into the union, in such a manner, that they should never be able to outnumber the atlantic states. he accordingly moved "that in order to secure the liberties of the states already confederated, the number of representatives in the 1^{st} branch, of the states which shall hereafter be established, shall never exceed in number, the representatives from such of the states as shall accede to this confederation. m^r king, seconded the motion. m^r sherman, thought there was no probability that the number of future states would exceed that of the existing states. if the event should ever happen, it was too remote to be taken into consideration at this time. besides we are providing for our posterity, for our children & our grand children; who would be as likely to be citizens of new western states, as of the old states. on this consideration alone, we ought to make no such discrimination as was proposed by the motion. m^r gerry. if some of our children should remove, others will stay behind, and he thought it incumbent on us to provide for their interests. there was a rage for emigration from the eastern states to the western country, and he did not wish those remaining behind to be at the mercy of the emigrants. besides foreigners are resorting to that country, and it is uncertain what turn things may take there.--on the question for agreeing to the motion of m^r gerry, it passed in the negative. mass. ay. con^t ay. n. j. no. p^a div^d. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r rutlidge proposed to reconsider the two propositions touching the originating of money bills in the first & the equality of votes in the second branch. m^r sherman was for the question on the whole at once. it was he said a conciliatory plan, it had been considered in all its parts, a great deal of time had been spent upon it, and if any part should now be altered, it would be necessary to go over the whole ground again. m^r l. martin urged the question on the whole. he did not like many parts of it. he did not like having two branches, nor the inequality of votes in the 1^{st} branch. he was willing however to make trial of the plan, rather than do nothing. m^r wilson traced the progress of the report through its several stages, remarking y^t when on the question concerning an equality of votes, the house was divided, our constituents had they voted as their representatives did, would have stood as 2/3 ag^{st} the equality, and 1/3 only in favor of it. this fact would ere long be known, and it will appear that this fundamental point has been carried by 1/3 ag^{st} 2/3. what hopes will our constituents entertain when they find that the essential principles of justice have been violated in the outset of the governm^t. as to the privilege of originating money bills, it was not considered by any as of much moment, and by many as improper in itself. he hoped both clauses w^d be reconsidered. the equality of votes was a point of such critical importance, that every opportunity ought to be allowed, for discussing and collecting the mind of the convention upon it. m^r l. martin denies that there were 2/3 ag^{st} the equality of votes. the states that please to call themselves large, are the weakest in the union. look at mas^{ts}. look at virg^a. are they efficient states? he was for letting a separation take place if they desired it. he had rather there should be two confederacies, than one founded on any other principle than an equality of votes in the 2^d branch at least. m^r wilson was not surprised that those who say that a minority is more than a majority should say the minority is stronger than the majority. he supposed the next assertion will be that they are richer also; though he hardly expected it would be persisted in when the states shall be called on for taxes & troops. m^r gerry also animadverted on m^r l. martins remarks on the weakness of mas^{ts}. he favored the reconsideration with a view not of destroying the equality of votes; but of providing that the states should vote per capita, which he said would prevent the delays & inconveniences that had been experienced in cong^s and would give a national aspect & spirit to the management of business. he did not approve of a reconsideration of the clause relating to money bills. it was of great consequence. it was the corner stone of the accommodation. if any member of the convention had the exclusive privilege of making propositions, would any one say that it would give him no advantage over other members. the report was not altogether to his mind. but he would agree to it as it stood rather than throw it out altogether. the reconsideration being tacitly agreed to m^r pinkney moved that instead of an equality of votes, the states should be represented in the 2^d branch as follows: n. h. by 2 members. mass. 4. r. i. 1. con^t 3. n. y. 3. n. j. 2. p^a 4. del. 1; m^d 3. virg^a 5. n. c. 3. s. c. 3. geo. 2. making in the whole 36. m^r wilson seconds the motion m^r dayton. the smaller states can never give up their equality. for himself he would in no event yield that security for their rights. m^r sherman, urged the equality of votes not so much as a security for the small states; as for the state gov^{ts} which could not be preserved unless they were represented & had a negative in the gen^l government. he had no objection to the members in the 2^d b. voting per capita, as had been suggested by (m^r gerry). m^r madison concurred in this motion of m^r pinkney as a reasonable compromise. m^r gerry said he should like the motion, but could see no hope of success. an accommodation must take place, and it was apparent from what had been seen that it could not do so on the ground of the motion. he was utterly against a partial confederacy, leaving other states to accede or not accede, as had been intimated. m^r king said it was always with regret that he differed from his colleagues, but it was his duty to differ from (m^r gerry) on this occasion. he considered the proposed government as substantially and formally, a general and national government over the people of america. there never will be a case in which it will act as a federal government on the states and not on the individual citizens. and is it not a clear principle that in a free gov^t those who are to be the objects of a gov^t ought to influence the operations of it? what reason can be assigned why the same rule of representation s^d not prevail in the 2^d branch as in the 1^{st}.? he could conceive none. on the contrary, every view of the subject that presented itself, seemed to require it. two objections had been raised ag^{st} it, drawn 1. from the terms of the existing compact. 2. from a supposed danger to the smaller states.--as to the first objection he thought it inapplicable. according to the existing confederation, the rule by which the public burdens is to be apportioned is _fixed_, and must be pursued. in the proposed govern^t it cannot be fixed, because indirect taxation is to be substituted. the legislature therefore will have full discretion to impose taxes in such modes & proportions as they may judge expedient. as to the 2^d objection, he thought it of as little weight. the gen^l govern^t can never wish to intrude on the state govern^{ts}. there could be no temptation. none had been pointed out. in order to prevent the interference of measures which seemed most likely to happen, he would have no objection to throwing all the state debts into the federal debt, making one aggregate debt of about 70,000,000 of dollars, and leaving it to be discharged by the gen^l gov^t. according to the idea of securing the state gov^{ts} there ought to be three distinct legislative branches. the 2^d was admitted to be necessary, and was actually meant, to check the 1^{st} branch, to give more wisdom, system, & stability to the gov^t and ought clearly as it was to operate on the people, to be proportioned to them. for the third purpose of securing the states, there ought then to be a 3^d branch, representing the states as such, and guarding by equal votes their rights & dignities. he would not pretend to be as thoroughly acquainted with his immediate constituents as his colleagues, but it was his firm belief that mas^{ts} would never be prevailed on to yield to an equality of votes. in n. york, (he was sorry to be obliged to say any thing relative to that state in the absence of its representatives, but the occasion required it), in n. york he had seen that the most powerful argument used by the considerate opponents to the grant of the impost to congress, was pointed ag^{st} the vicious constitution of cong^s with regard to representation & suffrage. he was sure that no gov^t could last that was not founded on just principles. he preferred the doing of nothing, to an allowance of an equal vote to all the states. it would be better he thought to submit to a little more confusion & convulsion, than to submit to such an evil. it was difficult to say what the views of different gentlemen might be. perhaps there might be some who thought no governm^t co-extensive with the u. states could be established with a hope of its answering the purpose. perhaps there might be other fixed opinions incompatible with the object we are pursuing. if there were, he thought it but candid that gentlemen should speak out that we might understand one another. m^r strong. the convention had been much divided in opinion. in order to avoid the consequences of it, an accommodation had been proposed. a committee had been appointed: and though some of the members of it were averse to an equality of votes, a report had been made in favor of it. it is agreed on all hands that congress are nearly at an end. if no accommodation takes place, the union itself must soon be dissolved. it has been suggested that if we cannot come to any general agreement, the principal states may form & recommend a scheme of government. but will the small states in that case ever accede it. is it probable that the large states themselves will under such circumstances embrace and ratify it. he thought the small states had made a considerable concession in the article of money bills, and that they might naturally expect some concessions on the other side. from this view of the matter he was compelled to give his vote for the report taken altogether. m^r madison expressed his apprehensions that if the proper foundation of governm^t was destroyed, by substituting an equality in place of a proportional representation, no proper superstructure would be raised. if the small states really wish for a government armed with the powers necessary to secure their liberties, and to enforce obedience on the larger members as well as themselves he could not help thinking them extremely mistaken in their means. he reminded them of the consequences of laying the existing confederation on improper principles. all the principal parties to its compilation joined immediately in mutilating & fettering the governm^t in such a manner that it has disappointed every hope placed in it. he appealed to the doctrine & arguments used by themselves on a former occasion. it had been very properly observed by (m^r patterson) that representation was an expedient by which the meeting of the people themselves was rendered unnecessary; and that the representatives ought therefore to bear a proportion to the votes which their constituents if convened would respectively have. was not this remark as applicable to one branch of the representation as to the other? but it had been said that the govern^t would in its operation be partly federal, partly national; that altho' in the latter respect the representatives of the people ought to be in proportion to the people; yet in the former it ought to be according to the number of states. if there was any solidity in this distinction he was ready to abide by it, if there was none it ought to be abandoned. in all cases where the gen^l governm^t is to act on the people, let the people be represented and the votes be proportional. in all cases where the govern^t is to act on the states as such in like manner as cong^s now acts on them, let the states be represented & the votes be equal. this was the true ground of compromise if there was any ground at all. but he denied that there was any ground. he called for a single instance in which the gen^l gov^t was not to operate on the people individually. the practicability of making laws, with coercive sanctions, for the states as political bodies, had been exploded on all hands. he observed that the people of the large states would in some way or other secure to themselves a weight proportioned to the importance accruing from their superior numbers. if they could not effect it by a proportional representation in the gov^t they would probably accede to no gov^t which did not in a great measure depend for its efficacy on their voluntary cooperation; in which case they would indirectly secure their object. the existing confederacy proved that where the acts of the gen^l gov^t were to be executed by the particular gov^{ts} the latter had a weight in proportion to their importance. no one would say that either in cong^s or out of cong^s. delaware had equal weight with pennsylv^a. if the latter was to supply ten times as much money as the former, and no compulsion could be used, it was of ten times more importance, that she should voluntarily furnish the supply. in the dutch confederacy the votes of the provinces were equal. but holland which supplies about half the money, governed the whole republic. he enumerated the objections ag^{st} an equality of votes in the 2^d branch, notwithstanding the proportional representation in the first. 1. the minority could negative the will of the majority of the people. 2. they could extort measures by making them a condition of their assent to other necessary measures. 3. they could obtrude measures on the majority by virtue of the peculiar powers which would be vested in the senate. 4. the evil instead of being cured by time, would increase with every new state that should be admitted, as they must all be admitted on the principle of equality. 5. the perpetuity it would give to the preponderance of the north^n ag^{st} the south^n scale was a serious consideration. it seemed now to be pretty well understood that the real difference of interests lay, not between the large & small but between the n. & south^n states. the institution of slavery & its consequences formed the line of discrimination. there were 5 states on the south, 8 on the north^n side of this line. should a proport^l representation take place it was true, the n. side would still outnumber the other; but not in the same degree, at this time; and every day would tend towards an equilibrium. m^r wilson would add a few words only. if equality in the 2^d branch was an error that time would correct, he should be less anxious to exclude it being sensible that perfection was unattainable in any plan; but being a fundamental and a perpetual error, it ought by all means to be avoided. a vice in the representation, like an error in the first concoction, must be followed by disease, convulsions, and finally death itself. the justice of the general principle of proportional representation has not in argument at least been yet contradicted. but it is said that a departure from it so far as to give the states an equal vote in one branch of the legislature is essential to their preservation. he had considered this position maturely, but could not see its application. that the states ought to be preserved he admitted. but does it follow that an equality of votes is necessary for the purpose? is there any reason to suppose that if their preservation should depend more on the large than on the small states the security of the states ag^{st} the gen^l government would be diminished? are the large states less attached to their existence more likely to commit suicide, than the small? an equal vote then is not necessary as far as he can conceive: and is liable among other objections to this insuperable one: the great fault of the existing confederacy is its inactivity. it has never been a complaint ag^{st} cong^s that they governed over much. the complaint has been that they have governed too little. to remedy this defect we were sent here. shall we effect the cure by establishing an equality of votes as is proposed? no: this very equality carries us directly to congress; to the system which it is our duty to rectify. the small states cannot indeed act, by virtue of this equality, but they may controul the gov^t as they have done in cong^s. this very measure is here prosecuted by a minority of the people of america. is then the object of the convention likely to be accomplished in this way? will not our constituents say? we sent you to form an efficient gov^t and you have given us one more complex indeed, but having all the weakness of the former govern^t. he was anxious for uniting all the states under one govern^t. he knew there were some respectable men who preferred three confederacies, united by offensive & defensive alliances. many things may be plausibly said, some things may be justly said, in favor of such a project. he could not however concur in it himself; but he thought nothing so pernicious as bad first principles. m^r elseworth asked two questions, one of m^r wilson, whether he had ever seen a good measure fail in cong^s for want of a majority of states in its favor? he had himself never known such an instance: the other of m^r madison whether a negative lodged with the majority of the states even the smallest, could be more dangerous than the qualified negative proposed to be lodged in a single executive magistrate, who must be taken from some one state? m^r sherman, signified that his expectation was that the gen^l legislature would in some cases act on the _federal principle_, of requiring quotas. but he thought it ought to be empowered to carry their own plans into execution, if the states should fail to supply their respective quotas. on the question for agreeing to m^r pinkney's motion for allowing n. h. 2. mas. 4. &c.--it passed in the negative, mass. no. m^r king ay. m^r ghorum absent. con^t no. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. ay. geo. no. adjourned.[132] [132] "memorandum. "july 15, '87. "about twelve days since the convention appointed a grand comee, consisting of gerry, ellsworth, yates, paterson, franklin, bedford, martin, mason, rutledge & baldwin to adjust the representation in the two brs. of the legislature of the u. s. they reported yt. every 40,000 inhabs. taken agreeably to the resolution of cong. of ye 18 ap. 1783, shd. send one member to the first br. of the legislature, yt. this br. shd. originate exclusively money bills, & also originate ye appropriations of money; and that in ye senate or upper br. each state shd. have one vote & no more. the representation as to the first br. was twice recommitted altho' not to the same committee; finally it was agreed yt taxation of the direct sort & representation shd. be in direct proportion with each other--that the first br. shd. consist of 65 members, viz. n. h. 3, m. 8, r. i. 1, c. 5, n. y. 6, n. j. 4, p. 8, d. 1, m. 6, v. 10, n. c. 5, s. c. 5, g. 3,--and that the origination of money bills and the appropriations of money shd. belong in the first instance to yt. br., but yt in the senate or 2nd br. each state shd. have an equal vote. in this situation of the report it was moved by s. car. that in the formation of the 2nd br., instead of an equality of votes among the states, that n. h. shd. have 2, m. 4, r. i. 1, c. 3, n. y. 3, n. j. 2, p. 4, d. 1, m. 3, v. 5, n. c. 3, s. c. 3, g. 2 = total 36. "on the question to agree to this apportionment, instead of the equality (mr. gorham being absent) mass., con., n. jer., del., n. car., & georg--no. penn., mar., virg. & s. car. aye. "this question was taken and to my mortification by the vote of mass. lost on the 14th july. "(endorsed 'inequality lost by vote of mass.')"--king's note, king's _life and correspondence of rufus king_, i., 615. monday, july 16. in convention. on the question for agreeing to the whole report as amended & including the equality of votes in the 2^d branch, it passed in the affirmative. mass. divided m^r gerry, m^r strong. ay. m^r king, m^r ghorum no. con^t ay. n. j. ay. pen^a no. del. ay. m^d ay. v^a no. n. c. ay. m^r spraight no. s. c. no. geo. no. the whole thus passed is in the words following, viz. "resolved, that in the original formation of the legislature of the u. s. the first branch thereof shall consist of sixty five members, of which number n. hampshire shall send 3. mass^{ts} 8. rh. i. 1. conn^t 5. n. y. 6. n. j. 4. pen^a 8. del. 1. mary^d 6. virg^a 10. n. c. 5. s. c. 5. geo. 3.--but as the present situation of the states may probably alter in the number of their inhabitants, the legislature of the u. s. shall be authorized from time to time to apportion the number of rep^s and in case any of the states shall hereafter be divided, or enlarged by addition of territory, or any two or more states united, or any new states created within the limits of the u. s. the legislature of the u. s. shall possess authority to regulate the number of rep^s in any of the foregoing cases, upon the principle of their number of inhabitants, according to the provisions hereafter mentioned. namely--provided always that representation ought to be proportioned according to direct taxation; and in order to ascertain the alteration in the direct taxation, which may be required from time to time by the changes in the relative circumstances of the states-resolved, that a census be taken within six years from the 1^{st} meeting of the legislature of the u. s., and once within the term of every 10 years afterwards of all the inhabitants of the u. s. in the manner and according to the ratio recommended by congress in their resolution of april 18. 1783, and that the legislature of the u. s. shall proportion the direct taxation accordingly-resolved, that all bills for raising or appropriating money, and for fixing the salaries of officers of the gov^t of the u. s. shall originate in the first branch of the legislature of the u. s. and shall not be altered or amended in the 2^d branch: and that no money shall be drawn from the public treasury, but in pursuance of appropriations to be originated in the 1^{st} branch. _resolv^d_, that in the 2^d branch of the legislature of the u. s., each state shall have an equal vote. the 6^{th} resol: in the report from the com^e of the whole house, which had been postponed in order to consider the 7 & 8^{th} resol^{ns}.; was now resumed. see the resol^n: the 1^{st} member "that the nat^l legislature ought to possess the legislative rights vested in cong^s by the confederation" was agreed to nem. con. the next, "and moreover to legislate in all cases to which the separate states are incompetent; or in which the harmony of the u. s. may be interrupted by the exercise of individual legislation," being read for a question. m^r butler calls for some explanation of the extent of this power; particularly of the word _incompetent_. the vagueness of the terms rendered it impossible for any precise judgment to be formed. m^r ghorum. the vagueness of the terms constitutes the propriety of them. we are now establishing general principles, to be extended hereafter into details which will be precise & explicit. m^r rutlidge, urged the objection started by m^r butler and moved that the clause should be committed to the end that a specification of the powers comprised in the general terms, might be reported. on the question for commitment, the states were equally divided mas. no. con^t ay. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. no. s. c. ay. geo. ay: so it was lost. m^r randolph. the vote of this morning (involving an equality of suffrage in 2^d branch) had embarrassed the business extremely. all the powers given in the report from the com^e of the whole, were founded on the supposition that a proportional representation was to prevail in both branches of the legislature. when he came here this morning his purpose was to have offered some propositions that might if possible have united a great majority of votes, and particularly might provide ag^{st} the danger suspected on the part of the smaller states, by enumerating the cases in which it might lie, and allowing an equality of votes in such cases.[133] but finding from the preceding vote that they persist in demanding an equal vote in all cases, that they have succeeded in obtaining it, and that n. york, if present would probably be on the same side, he could not but think we were unprepared to discuss this subject further. it will probably be in vain to come to any final decision with a bare majority on either side. for these reasons he wished the convention might adjourn, that the large states might consider the steps proper to be taken in the present solemn crisis of the business, and that the small states might also deliberate on the means of conciliation. [133] see the paper, in the appendix, co[~m]unicated by m^r r. to j. m. july 10.--note in madison's hand. m^r patterson, thought with m^r r. that it was high time for the convention to adjourn that the rule of secrecy ought to be rescinded, and that our constituents should be consulted. no conciliation could be admissible on the part of the smaller states on any other ground than that of an equality of votes in the 2^d branch. if m^r randolph would reduce to form his motion for an adjournment sine die, he would second it with all his heart. gen^l pinkney wished to know of m^r r. whether he meant an adjournment sine die, or only an adjournment for the day. if the former was meant, it differed much from his idea. he could not think of going to s. carolina and returning again to this place. besides it was chimerical to suppose that the states if consulted would ever accord separately, and beforehand. m^r randolph, had never entertained an idea of an adjournment sine die; & was sorry that his meaning had been so readily & strangely misinterpreted. he had in view merely an adjournment till to-morrow, in order that some conciliatory experiment might if possible be devised, and that in case the smaller states should continue to hold back, the larger might then take such measures, he would not say what, as might be necessary. m^r patterson seconded the adjournment till to-morrow, as an opportunity seemed to be wished by the larger states to deliberate further on conciliatory expedients. on the question for adjourning till tomorrow, the states were equally divided, mas. no. con^t no. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no, so it was lost. m^r broome thought it his duty to declare his opinion ag^{st} an adjournment sine die, as had been urged by m^r patterson. such a measure he thought would be fatal. something must be done by the convention, tho' it should be by a bare majority. m^r gerry observed that mas^{ts} was opposed to an adjournment, because they saw no new ground of compromise. but as it seemed to be the opinion of so many states that a trial sh^d be made, the state would now concur in the adjournm^t. m^r rutlidge could see no need of an adjourn^t because he could see no chance of a compromise. the little states were fixt. they had repeatedly & solemnly declared themselves to be so. all that the large states then had to do was to decide whether they would yield or not. for his part he conceived that altho' we could not do what we thought best, in itself, we ought to do something. had we not better keep the gov^t up a little longer, hoping that another convention will supply our omissions, than abandon every thing to hazard. our constituents will be very little satisfied with us if we take the latter course. m^r randolph & m^r king renewed the motion to adjourn till tomorrow. on the question. mas. ay. con^t no. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. div^d. adjourned * * * * * on the morning following before the hour of the convention a number of the members from the larger states, by common agreement met for the purpose of consulting on the proper steps to be taken in consequence of the vote in favor of an equal representation in the 2^d branch, and the apparent inflexibility of the smaller states on that point. several members from the latter states also attended. the time was wasted in vague conversation on the subject, without any specific proposition or agreement. it appeared indeed that the opinions of the members who disliked the equality of votes differed much as to the importance of that point, and as to the policy of risking a failure of any general act of the convention by inflexibly opposing it. several of them supposing that no good governm^t could or would be built on that foundation, and that as a division of the convention into two opinions was unavoidable; it would be better that the side comprising the principal states, and a majority of the people of america, should propose a scheme of gov^t to the states, than that a scheme should be proposed on the other side, would have concurred in a firm opposition to the smaller states, and in a separate recommendation, if eventually necessary. others seemed inclined to yield to the smaller states, and to concur in such an act however imperfect & exceptionable, as might be agreed on by the convention as a body, tho' decided by a bare majority of states and by a minority of the people of the u. states. it is probable that the result of this consultation satisfied the smaller states that they had nothing to apprehend from a union of the larger, in any plan whatever ag^{st} the equality of votes in the 2^d branch. tuesday july 17. in convention. m^r govern^r morris, moved to reconsider the whole resolution agreed to yesterday concerning the constitution of the 2 branches of the legislature. his object was to bring the house to a consideration in the abstract of the powers necessary to be vested in the general government. it had been said, let us know how the gov^t is to be modelled, and then we can determine what powers can be properly given to it. he thought the most eligible course was, first to determine on the necessary powers, and then so to modify the govern^t as that it might be justly & properly enabled to administer them. he feared if we proceeded to a consideration of the powers, whilst the vote of yesterday including an equality of the states in the 2^d branch, remained in force, a reference to it, either mental or expressed, would mix itself with the merits of every question concerning the powers.--this motion was not seconded. (it was probably approved by several members who either despaired of success, or were apprehensive that the attempt would inflame the jealousies of the smaller states.) the 6^{th} resol^n in the report of the com^e of the whole relating to the powers, which had been postponed in order to consider the 7 & 8^{th} relating to the constitution of the nat^l legislature, was now resumed. m^r sherman observed that it would be difficult to draw the line between the powers of the gen^l legislature, and those to be left with the states; that he did not like the definition contained in the resolution, and proposed in place of the words "individual legislation" line 4. inclusive, to insert "to make laws binding on the people of the united states in all cases which may concern the common interests of the union; but not to interfere with the government of the individual states in any matters of internal police which respect the gov^t of such states only, and wherein the general welfare of the u. states is not concerned." m^r wilson 2^{ded} the amendment as better expressing the general principle. m^r gov^r morris opposed it. the internal police, as it would be called & understood by the states ought to be infringed in many cases, as in the case of paper money & other tricks by which citizens of other states may be affected. m^r sherman, in explanation of his idea read an enumeration of powers, including the power of levying taxes on trade, but not the power of _direct taxation_. m^r gov^r morris remarked the omission, and inferred that for the deficiencies of taxes on consumption, it must have been the meaning of mr. sherman, that the gen^l gov^t should recur to quotas & requisitions, which are subversive of the idea of gov^t. m^r sherman acknowledged that his enumeration did not include direct taxation. some provision he supposed must be made for supplying the deficiency of other taxation, but he had not formed any. on question on m^r sherman's motion it passed in the negative mas. no. con^t ay. n. j. no. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r bedford moved that the 2^d member of resolution 6. be so altered as to read, "and moreover to legislate in all cases for the general interests of the union, and also in those to which the states are severally incompetent, or in which the harmony of the u. states may be interrupted by the exercise of individual legislation." m^r gov^r morris 2^{ds} the motion. m^r randolph. this is a formidable idea indeed. it involves the power of violating all the laws and constitutions of the states, and of intermeddling with their police. the last member of the sentence is also superfluous, being included in the first. m^r bedford. it is not more extensive or formidable than the clause as it stands: _no state_ being _separately_ competent to legislate for the _general interest_ of the union. on question for agreeing to m^r bedford's motion it passed in the affirmative. mas. ay. con^t no. n. j. ay. p^a ay. del. ay. m^d ay. v^a no. n. c. ay. s. c. no. geo. no. on the sentence as amended, it passed in the affirmative. mas. ay. con^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. the next. "to negative all laws passed by the several states contravening in the opinion of the nat: legislature the articles of union, or any treaties subsisting under the authority of y^e union." m^r gov^r morris opposed this power as likely to be terrible to the states, and not necessary, if sufficient legislative authority should be given to the gen^l government. m^r sherman thought it unnecessary; as the courts of the states would not consider as valid any law contravening the authority of the union, and which the legislature would wish to be negatived. m^r l. martin considered the power as improper & inadmissible. shall all the laws of the states be sent up to the gen^l legislature before they shall be permitted to operate? m^r madison, considered the negative on the laws of the states as essential to the efficacy & security of the gen^l gov^t. the necessity of a general gov^t proceeds from the propensity of the states to pursue their particular interests in opposition to the general interest. this propensity will continue to disturb the system, unless effectually controuled. nothing short of a negative on their laws will controul it. they will pass laws which will accomplish their injurious objects before they can be repealed by the gen^l legisl^{re} or be set aside by the national tribunals. confidence can not be put in the state tribunals as guardians of the national authority and interests. in all the states these are more or less depend^t on the legislatures. in georgia they are appointed annually by the legislature. in r. island the judges who refused to execute an unconstitutional law were displaced, and others substituted, by the legislature who would be the willing instruments of the wicked & arbitrary plans of their masters. a power of negativing the improper laws of the states is at once the most mild & certain means of preserving the harmony of the system. its utility is sufficiently displayed in the british system. nothing could maintain the harmony & subordination of the various parts of the empire, but the prerogative by which the crown, stifles in the birth every act of every part tending to discord or encroachment. it is true the prerogative is sometimes misapplied thro' ignorance or a partiality to one particular part of y^e empire; but we have not the same reason to fear such misapplications in our system. as to the sending all laws up to the nat^l legisl: that might be rendered unnecessary by some emanation of the power into the states, so far at least as to give a temporary effect to laws of immediate necessity. m^r gov^r morris was more & more opposed to the negative. the proposal of it would disgust all the states. a law that ought to be negatived will be set aside in the judiciary departm^t and if that security should fail; may be repealed by a nation^l law. m^r sherman. such a power involves a wrong principle, to wit, that a law of a state contrary to the articles of the union would if not negatived, be valid & operative. m^r pinkney urged the necessity of the negative. on the question for agreeing to the power of negativing laws of states &c. it passed in the negative. mas. ay. c^t no. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. m^r luther martin moved the following resolution "that the legislative acts of the u. s. made by virtue & in pursuance of the articles of union and all treaties made & ratified under the authority of the u. s. shall be the supreme law of the respective states, as far as those acts or treaties shall relate to the said states, or their citizens and inhabitants--& that the judiciaries of the several states shall be bound thereby in their decisions, any thing in the respective laws of the individual states to the contrary notwithstanding" which was agreed to nem: con: 9^{th} resol: "that nat^l executive consist of a single person," ag^d to nem. con. "to be chosen by the national legisl:" m^r govern^r morris was pointedly ag^{st} his being so chosen. he will be the mere creature of the legisl: if appointed & impeachable by that body. he ought to be elected by the people at large, by the freeholders of the country. that difficulties attend this mode, he admits. but they have been found superable in n. y. & in con^t and would he believed be found so, in the case of an executive for the u. states. if the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation. if the legislature elect, it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment. he moved to strike out "national legislature," & insert "citizens of the u. s." m^r sherman thought that the sense of the nation would be better expressed by the legislature, than by the people at large. the latter will never be sufficiently informed of characters, and besides will never give a majority of votes to any one man. they will generally vote for some man in their own state, and the largest state will have the best chance for the appointment. if the choice be made by the legisl^{re} a majority of voices may be made necessary to constitute an election. m^r wilson. two arguments have been urged ag^{st} an election of the executive magistrate by the people. 1 the example of poland where an election of the supreme magistrate is attended with the most dangerous commotions. the cases he observed were totally dissimilar. the polish nobles have resources & dependants which enable them to appear in force, and to threaten the republic as well as each other. in the next place the electors all assemble in one place; which would not be the case with us. the 2^d arg^t is that a _majority_ of the people would never concur. it might be answered that the concurrence of a majority of the people is not a necessary principle of election, nor required as such in any of the states. but allowing the objection all its force, it may be obviated by the expedient used in mass^{ts}, where the legislature by majority of voices, decide in case a majority of people do not concur in favor of one of the candidates. this would restrain the choice to a good nomination at least, and prevent in a great degree intrigue & cabal. a particular objection with him ag^{st} an absolute election by the legisl^{re} was that the exec: in that case would be too dependent to stand the mediator between the intrigues & sinister views of the representatives and the general liberties & interests of the people. m^r pinkney did not expect this question would again have been brought forward: an election by the people being liable to the most obvious & striking objections. they will be led by a few active & designing men. the most populous states by combining in favor of the same individual will be able to carry their points. the nat^l legislature being most immediately interested in the laws made by themselves, will be most attentive to the choice of a fit man to carry them properly into execution. m^r gov^r morris. it is said that in case of an election by the people the populous states will combine & elect whom they please. just the reverse. the people of such states cannot combine. if there be any combination it must be among their representatives in the legislature. it is said the people will be led by a few designing men. this might happen in a small district. it can never happen throughout the continent. in the election of a gov^r of n. york, it sometimes is the case in particular spots, that the activity & intrigues of little partizans are successful, but the general voice of the state is never influenced by such artifices. it is said the multitude will be uninformed. it is true they would be uninformed of what passed in the legislative conclave, if the election were to be made there; but they will not be uninformed of those great & illustrious characters which have merited their esteem & confidence. if the executive be chosen by the nat^l legislature, he will not be independent on it; and if not independent, usurpation & tyranny on the part of the legislature will be the consequence. this was the case in england in the last century. it has been the case in holland, where their senates have engrossed all power. it has been the case every where. he was surprised that an election by the people at large should ever have been likened to the polish election of the first magistrate. an election by the legislature will bear a real likeness to the election by the diet of poland. the great must be the electors in both cases, and the corruption & cabal w^{ch} are known to characterize the one would soon find their way into the other. appointments made by numerous bodies, are always worse than those made by single responsible individuals, or by the people at large. col. mason. it is curious to remark the different language held at different times. at one moment we are told that the legislature is entitled to thorough confidence, and to indefinite power. at another, that it will be governed by intrigue & corruption, and cannot be trusted at all. but not to dwell on this inconsistency he would observe that a government which is to last ought at least to be practicable. would this be the case if the proposed election should be left to the people at large. he conceived it would be as unnatural to refer the choice of a proper character for chief magistrate to the people, as it would, to refer a trial of colours to a blind man. the extent of the country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the candidates. m^r wilson, could not see the contrariety stated (by col. mason.) the legisl^{re} might deserve confidence in some respects, and distrust in others. in acts which were to affect them & y^r constituents precisely alike confidence was due. in others jealousy was warranted. the appointment to great offices, where the legisl^{re} might feel many motives, not common to the public confidence was surely misplaced. this branch of business it was notorious, was the most corruptly managed of any that had been committed to legislative bodies. m^r williamson, conceived that there was the same difference between an election in this case, by the people and by the legislature, as between an app^t by lot, and by choice. there are at present distinguished characters, who are known perhaps to almost every man. this will not always be the case. the people will be sure to vote for some man in their own state, and the largest state will be sure to succeed. this will not be virg^a however. her slaves will have no suffrage. as the salary of the executive will be fixed, and he will not be eligible a 2^d time, there will not be such a dependence on the legislature as has been imagined. question on an election by the people instead of the legislature, which passed in the negative. mas. no. con^t no. n. j. no. p^a ay. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r l. martin moved that the executive be chosen by electors appointed by the several legislatures of the individual states. m^r broome 2^{ds}. on the question, it passed in the negative. mas. no. con^t no. n. j. no. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. on the question on the words, "to be chosen by the nation^l legislature" it passed unanimously in the affirmative "for the term of seven years"--postponed nem. con. on motion of m^r houston and gov. morris "to carry into execution the nation^l laws"--agreed to nem. con. "to appoint to offices in cases not otherwise provided for,"--agreed to nem. con. "to be ineligible a second time"--m^r houston moved to strike out this clause. m^r sherman 2^{ds} the motion. m^r gov^r morris espoused the motion. the ineligibility proposed by the clause as it stood tended to destroy the great motive to good behavior, the hope of being rewarded by a re-appointment. it was saying to him, make hay while the sun shines. on the question for striking out, as moved by m^r houston, it passed in the affirmative mas. ay. con^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. ay. "for the term of 7 years," resumed. m^r broom was for a shorter term since the executive magistrate was now to be re-eligible. had he remained ineligible a 2^d time, he should have preferred a longer term. doc^r m^cclurg moved[134] to strike out 7 years, and insert "during good behavior." by striking out the words declaring him not re-eligible, he was put into a situation that would keep him dependent forever on the legislature; and he conceived the independence of the executive to be equally essential with that of the judiciary department. [134] the probable object of this motion was merely to enforce the argument against the re-eligibility of the executive magistrate by holding out a tenure during good behaviour as the alternate for keeping him independent of the legislature.--note in madison's handwriting. m^r gov^r morris 2^{ded} the motion. he expressed great pleasure in hearing it. this was the way to get a good government. his fear that so valuable an ingredient would not be attained had led him to take the part he had done. he was indifferent how the executive should be chosen, provided he held his place by this tenure. m^r broome highly approved the motion. it obviated all his difficulties m^r sherman considered such a tenure as by no means safe or admissible. as the executive magistrate is now re-eligible, he will be on good behavior as far as will be necessary. if he behaves well he will be continued; if otherwise, displaced, on a succeeding election. m^r madison.[135] if it be essential to the preservation of liberty that the legisl: execut: & judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. the executive could not be independent of the legislure, if dependent on the pleasure of that branch for a re-appointment. why was it determined that the judges should not hold their places by such a tenure? because they might be tempted to cultivate the legislature, by an undue complaisance, and thus render the legislature the virtual expositor, as well as the maker of the laws. in like manner a dependence of the executive on the legislature, would render it the executor as well as the maker of laws; & then according to the observation of montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. there was an analogy between the executive & judiciary departments in several respects. the latter executed the laws in certain cases as the former did in others. the former expounded & applied them for certain purposes, as the latter did for others. the difference between them seemed to consist chiefly in two circumstances--1. the collective interest & security were much more in the power belonging to the executive than to the judiciary department. 2. in the administration of the former much greater latitude is left to opinion and discretion than in the administration of the latter. but if the 2^d consideration proves that it will be more difficult to establish a rule sufficiently precise for trying the execut: than the judges, & forms an objection to the same tenure of office, both considerations prove that it might be more dangerous to suffer a union between the executive & legisl: powers, than between the judiciary & legislative powers. he conceived it to be absolutely necessary to a well constituted republic that the two first sh^d be kept distinct & independent of each other. whether the plan proposed by the motion was a proper one was another question, as it depended on the practicability of instituting a tribunal for impeachm^{ts} as certain & as adequate in the one case as in the other. on the other hand, respect for the mover entitled his proposition to a fair hearing & discussion, until a less objectionable expedient should be applied for guarding ag^{st} a dangerous union of the legislative & executive departments. [135] the view here taken of the subject was meant to aid in parrying the animadversions likely to fall on the motion of d^r m^cclurg, for whom j. m. had a particular regard. the doc^r though possessing talents of the highest order was modest & unaccustomed to exert them in public debate.--note in madison's handwriting. col. mason. this motion was made some time ago & negatived by a very large majority. he trusted that it w^d be again negatived. it w^d be impossible to define the misbehaviour in such a manner as to subject it to a proper trial; and perhaps still more impossible to compel so high an offender holding his office by such a tenure to submit to a trial. he considered an executive during good behavior as a softer name only for an executive for life. and that the next would be an easy step to hereditary monarchy. if the motion should finally succeed, he might himself live to see such a revolution. if he did not it was probable his children or grand children would. he trusted there were few men in that house who wished for it. no state he was sure had so far revolted from republican principles as to have the least bias in its favor. m^r madison, was not apprehensive of being thought to favor any step towards monarchy. the real object with him was to prevent its introduction. experience had proved a tendency in our governments to throw all power into the legislative vortex. the executives of the states are in general little more than cyphers; the legislatures omnipotent. if no effectual check be devised for restraining the instability & encroachments of the latter, a revolution of some kind or other would be inevitable. the preservation of republican gov^t therefore required some expedient for the purpose, but required evidently at the same time that in devising it, the genuine principles of that form should be kept in view. m^r gov^r morris was as little a friend to monarchy as any gentleman. he concurred in the opinion that the way to keep out monarchical gov^t was to establish such a repub. gov^t as w^d make the people happy and prevent a desire of change. doc^r mcclurg was not so much afraid of the shadow of monarchy as to be unwilling to approach it; nor so wedded to republican gov^t as not to be sensible of the tyrannies that had been & may be exercised under that form. it was an essential object with him to make the executive independent of the legislature; and the only mode left for effecting it, after the vote destroying his ineligibility a second time, was to appoint him during good behavior. on the question for inserting "during good behavior" in place of '7 years (with a re-eligibility)' it passed in the negative, mas. no. c^t no. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. no. s. c. no. geo. no.[136] [136] (this vote is not considered as any certain index of opinion, as a number in the affirmative probably had it chiefly in view to alarm those attached to a dependence of the executive on the legislature, & thereby facilitate some final arrangement of a contrary tendency. the avowed friends of an executive, during good behaviour were not more than three or four, nor is it certain they would finally have adhered to such a tenure, an independence of the three great departments of each other, as far as possible, and the responsibility of all to the will of the community seemed to be generally admitted as the true basis of a well constructed government.)--note in madison's hand, except from the words "nor is it certain" etc., which is in the hand of his wife's brother, john c. payne. on the motion "to strike out seven years" it passed in the negative, mas. ay. c^t no. n. j. no. p^a ay. del. ay. m^d no. v^a no. n. c. ay. s. c. no. geo. no.[137] [137] (there was no debate on this motion. the apparent object of many in the affirmative was to secure the re-eligibility by shortening the term, and of many in the negative to embarrass the plan of referring the appointment and dependence of the executive to the legislature.)--note in madison's hand. it was now unanimously agreed that the vote which had struck out the words "to be ineligible a second time" should be reconsidered to-morrow. adj^d. wednesday july 18. in convention. on motion of m^r l. martin to fix tomorrow for reconsidering the vote concerning "eligibility of the exec^{tive} a 2^d time" it passed in the affirmative. mas. ay. con^t ay. n. j. absent. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. absent. the residue of the resol. 9. concerning the executive was postp^d till tomorrow. resol. 10. that executive sh^l have a right to negative legislative acts not afterwards passed by 2/3 of each branch, agreed to nem. con. resol. 11. "that a nat^l judiciary shall be estab^d to consist of one supreme tribunal", ag^d to nem. con. "the judges of which to be appoint^d by the 2^d branch of the nat^l legislature," m^r ghorum, w^d prefer an appointment by the 2^d branch to an appointm^t by the whole legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. he suggested that the judges be appointed by the execu^{ve} with the advice & consent of the 2^d branch, in the mode prescribed by the constitution of mas^{ts}. this mode had been long practised in that country, & was found to answer perfectly well. m^r wilson, still w^d prefer an appointm^t by the executive; but if that could not be attained, w^d prefer in the next place, the mode suggested by m^r ghorum. he thought it his duty however to move in the first instance "that the judges be appointed by the executive." m^r gov^r morris 2^{ded} the motion. m^r l. martin was strenuous for an app^t by the 2^d branch. being taken from all the states it w^d be best informed of characters & most capable of making a fit choice. m^r sherman concurred in the observations of m^r martin, adding that the judges ought to be diffused, which would be more likely to be attended to by the 2^d branch, than by the executive. m^r mason. the mode of appointing the judges may depend in some degree on the mode of trying impeachments of the executive. if the judges were to form a tribunal for that purpose, they surely ought not to be appointed by the executive. there were insuperable objections besides ag^{st} referring the appointment to the executive. he mentioned as one, that as the seat of gov^t must be in some one state, and as the executive would remain in office for a considerable time, for 4. 5. or 6 years at least, he would insensibly form local & personal attachments within the particular state that would deprive equal merit elsewhere, of an equal chance of promotion. m^r ghorum. as the executive will be responsible in point of character at least, for a judicious and faithful discharge of his trust, he will be careful to look through all the states for proper characters. the senators will be as likely to form their attachments at the seat of gov^t where they reside, as the executive. if they cannot get the man of the particular state to which they may respectively belong, they will be indifferent to the rest. public bodies feel no personal responsibility, and give full play to intrigue & cabal. rh. island is a full illustration of the insensibility to character produced by a participation of numbers in dishonorable measures, and of the length to which a public body may carry wickedness & cabal. m^r gov^r morris supposed it would be improper for an impeachm^t of the executive to be tried before the judges. the latter would in such case be drawn into intrigues with the legislature and an impartial trial would be frustrated. as they w^d be much about the seat of gov^t they might even be previously consulted & arrangements might be made for a prosecution of the executive. he thought therefore that no argument could be drawn from the probability of such a plan of impeachments ag^{st} the motion before the house. m^r madison suggested that the judges might be appointed by the executive, with the concurrence of 1/3 at least, of the 2^d branch. this would unite the advantage of responsibility in the executive with the security afforded in the 2^d branch ag^{st} any incautious or corrupt nomination by the executive. m^r sherman, was clearly for an election by the senate. it would be composed of men nearly equal to the executive, and would of course have on the whole more wisdom. they would bring into their deliberations a more diffusive knowledge of characters. it would be less easy for candidates to intrigue with them, than with the executive magistrate. for these reasons he thought there would be a better security for a proper choice in the senate than in the executive. m^r randolph. it is true that when the app^t of the judges was vested in the 2^d branch an equality of votes had not been given to it. yet he had rather leave the appointm^t there than give it to the executive. he thought the advantage of personal responsibility might be gained in the senate by requiring the respective votes of the members to be entered on the journal. he thought too that the hope of receiving app^{ts} would be more diffusive if they depended on the senate, the members of which w^d be diffusively known, than if they depended on a single man who could not be personally known to a very great extent; and consequently that opposition to the system, would be so far weakened. m^r bedford thought there were solid reasons ag^{st} leaving the appointment to the executive. he must trust more to information than the senate. it would put it in his power to gain over the larger states, by gratifying them with a preference of their citizens. the responsibility of the executive so much talked of was chimerical. he could not be punished for mistakes. m^r ghorum remarked that the senate could have no better information than the executive. they must like him, trust to information from the members belonging to the particular state where the candidate resided. the executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone. he did not mean that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one. on the question for referring the appointment of the judges to the executive, instead of the 2^d branch mas. ay. con^t no. p^a ay. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. absent. m^r ghorum moved "that the judges be nominated and appointed by the executive, by & with the advice & consent of the 2^d branch & every such nomination shall be made at least ---days prior to such appointment." this mode he said had been ratified by the experience of a 140 years in massachus^{ts}. if the app^t should be left to either branch of the legislature, it will be a mere piece of jobbing. m^r gov^r morris 2^{ded} & supported the motion. m^r sherman thought it less objectionable than an absolute appointment by the executive; but disliked it, as too much fettering the senate. question on m^r ghorum's motion mas. ay. con^t no. p^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. absent. m^r madison moved that the judges should be nominated by the executive & such nomination should become an appointment if not disagreed to within ---days by 2/3 of the 2^d branch. m^r gov^r morris 2^{ded} the motion. by co[~m]on consent the consideration of it was postponed till tomorrow. "to hold their offices during good behavior" & "to receive fixed salaries" agreed to nem: con:. "in which (salaries of judges) no increase or diminution shall be made so as to affect the persons at the time in office." m^r gov^r morris moved to strike out "or increase." he thought the legislature ought to be at liberty to increase salaries as circumstances might require, and that this would not create any improper dependence in the judges. doc^r franklin was in favor of the motion. money may not only become plentier, but the business of the department may increase as the country becomes more populous. m^r madison. the dependence will be less if the _increase alone_ should be permitted, but it will be improper even so far to permit a dependence. whenever an increase is wished by the judges, or may be in agitation in the legislature, an undue complaisance in the former may be felt towards the latter. if at such a crisis there should be in court suits to which leading members of the legislature may be parties, the judges will be in a situation which ought not to be suffered, if it can be prevented. the variations in the value of money, may be guarded ag^{st} by taking for a standard wheat or some other thing of permanent value. the increase of business will be provided for by an increase of the number who are to do it. an increase of salaries may easily be so contrived as not to affect persons in office. m^r gov^r morris. the value of money may not only alter but the state of society may alter. in this event the same quantity of wheat, the same value would not be the same compensation. the amount of salaries must always be regulated by the manners & the style of living in a country. the increase of business can not be provided for in the supreme tribunal in the way that has been mentioned. all the business of a certain description whether more or less must be done in that single tribunal. additional labor alone in the judges can provide for additional business. additional compensation therefore ought not to be prohibited. on the question for striking out "or increase" mas. ay. con^t ay. p^a ay. del. ay. m^d ay. v^a no. n. c. no. s. c. ay. geo. absent the whole clause as amended was then agreed to nem: con: 12. resol: "that nat^l legislature be empowered to appoint inferior tribunals" m^r butler could see no necessity for such tribunals. the state tribunals might do the business. m^r l. martin concurred. they will create jealousies & oppositions in the state tribunals, with the jurisdiction of which they will interfere. m^r ghorum. there are in the states already federal courts with jurisdiction for trial of piracies &c. committed on the seas. no complaints have been made by the states or the courts of the states. inferior tribunals are essential to render the authority of the nat^l legislature effectual. m^r randolph observed that the courts of the states can not be trusted with the administration of the national laws. the objects of jurisdiction are such as will often place the general & local policy at variance. m^r gov^r morris urged also the necessity of such a provision. m^r sherman was willing to give the power to the legislature but wished them to make use of the state tribunals whenever it could be done with safety to the general interest. col. mason thought many circumstances might arise not now to be foreseen, which might render such a power absolutely necessary. on question for agreeing to 12. resol: empowering the national legislature to appoint "inferior tribunals," ag^d to nem. con. "impeachments of national officers," were struck out on motion for the purpose. 13. resol: "the jurisdiction of the nat^l judiciary." several criticisms having been made on the definition; it was proposed by m^r madison so to alter it as to read thus--"that the jurisdiction shall extend to all cases arising under the nat^l laws; and to such other questions as may involve the nat^l peace & harmony," which was agreed to, nem. con. resol. 14. providing for the admission of new states agreed to, nem. con. resol. 15. that provision ought to be made for the continuance of cong^s &c. & for the completion of their engagements." m^r gov^r morris thought the assumption of their engagements might as well be omitted; and that cong^s ought not to be continued till all the states should adopt the reform; since it may become expedient to give effect to it whenever a certain number of states shall adopt it. m^r madison the clause can mean nothing more than that provision ought to be made for preventing an interregnum; which must exist in the interval between the adoption of the new gov^t and the commencement of its operation, if the old gov^t should cease on the first of these events. m^r wilson did not entirely approve of the manner in which the clause relating to the engagements of cong^s was expressed; but he thought some provision on the subject would be proper in order to prevent any suspicion that the obligations of the confederacy might be dissolved along with the govern^t under which they were contracted. on the question on the 1^{st} part--relating to the continuance of cong^s. mas. no. con^t no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c.[138] ay. geo. no. [138] in the printed journal, s. carolina--no. note in madison's hand. the 2^d part as to completion of their engagements, disag^d to, nem. con. resol. 16. "that a republican constitution & its existing laws ought to be guaranteed to each state by the u. states." m^r gov^r morris, thought the resol: very objectionable. he should be very unwilling that such laws as exist in r. island should be guaranteed. m^r wilson. the object is merely to secure the states ag^{st} dangerous commotions, insurrections and rebellions. col. mason. if the gen^l gov^t should have no right to suppress rebellions ag^{st} particular states, it will be in a bad situation indeed. as rebellions ag^{st} itself originate in & ag^{st} individual states, it must remain a passive spectator of its own subversion. m^r randolph. the resol^n has 2. objects. 1. to secure a republican government. 2. to suppress domestic commotions. he urged the necessity of both these provisions. m^r madison moved to substitute "that the constitutional authority of the states shall be guaranteed to them respectively ag^{st} domestic as well as foreign violence." doc^r mcclurg seconded the motion. m^r houston was afraid of perpetuating the existing constitutions of the states. that of georgia was a very bad one, and he hoped would be revised & amended. it may also be difficult for the gen^l gov^t to decide between contending parties each of which claim the sanction of the constitution. m^r l. martin was for leaving the states to suppress rebellions themselves. m^r ghorum thought it strange that a rebellion should be known to exist in the empire, and the gen^l gov^t sh^d be restrained from interposing to subdue it. at this rate an enterprising citizen might erect the standard of monarchy in a particular state, might gather together partizans from all quarters, might extend his views from state to state, and threaten to establish a tyranny over the whole & the gen^l gov^t be compelled to remain an inactive witness of its own destruction. with regard to different parties in a state; as long as they confine their disputes to words, they will be harmless to the gen^l gov^t & to each other. if they appeal to the sword, it will then be necessary for the gen^l gov^t, however difficult it may be to decide on the merits of their contest, to interpose & put an end to it. m^r carrol. some such provision is essential. every state ought to wish for it. it has been doubted whether it is a casus federis at the present. and no room ought to be left for such a doubt hereafter. m^r randolph moved to add as an amend^t to the motion; "and that no state be at liberty to form any other than a republican gov^t." m^r madison seconded the motion. m^r rutlidge thought it unnecessary to insert any guarantee. no doubt could be entertained but that cong^s had the authority if they had the means to co-operate with any state in subduing a rebellion. it was & would be involved in the nature of the thing. m^r wilson moved as a better expression of the idea, "that a republican form of governm^t shall be guaranteed to each state & that each state shall be protected ag^{st} foreign & domestic violence. this seeming to be well received, m^r madison & m^r randolph withdrew their propositions & on the question for agreeing to m^r wilson's motion, it passed nem. con. adj^d. end of vol. 1. transcriber notes: passages in italics were indicated by _underscores_. small caps were replaced with all caps. throughout the document, the oe ligature was replaced with "oe". throughout the document, a tilded m is represented by [~m], and a tilded nn is represented by [~nn]. throughout the document, a single superscripted letter is represented by that single letter preceded by a caret, and more than one superscripted letters are represented by the letters enclosed by curly brackets. thus, the word "y^e" represents a word where the "y" is normal and the "e" is superscripted; and the word "2^{dnd}" represents a word where the "2" is normal and the "dnd" is superscripted. in both conventions, it is assumed that a dot appeared below the superscripted letters, since in the original text a dot was often (but not always) present under the superscripted letters. thus, "2^{dnd}" in the present text would represent a normal digit "2" followed directly by the superscripted letters "dnd" with a single dot below the set of three letters. the contents of volume i. page incorrectly lists the chronology as starting on page xix, where it starts on page xv. the illustrations have been moved so that they do not break up paragraphs and so that they are next to the text they illustrate. thus the page number of the illustration might not match the page number in the list of fac-similes, and the order of illustrations may not be the same in the list of fac-similes and in the book. this document was filled with errors and inconsistencies in punctuations and hyphenation. for example, usually the word re-eligible is hyphenated, but sometimes it is not; sometimes; reinstated is hyphenated but sometimes it is not; and usually the comma is used as a thousand mark, but sometimes a period is used for that purpose. also, the abbreviations were not uniform (e.g., mas. v. mass.), which were only corrected when it was clear which abbreviation was considered correct at the time printed. another example is the abbreviation for resolution, which was sometimes resol:^n, sometimes resol^n, and sometimes resol.^n sometimes "nem: con." was used, and sometimes "nem. con." was used. the only time errors were corrected was when it was very clear that an error was made, and it was clear how the error should be corrected, and those corrections are listed below. two exceptions are the case where a period is missing at the end of a sentence or missing at the end of an abbreviation, both of which happened so often that those corrections were made but were not listed below. similarly, since the english language has changed so much in the past two hundred years, variations in spelling were only corrected was when it was very clear that an error was made, and it was clear how the error should be corrected. those corrections are listed below. in footnote 25, two instances of "thier" was replaced with "their". on page 23, a comma was added after "massachusetts". on page 23, a comma was added after "new york". on page 39, a comma was added after "savannah georgian". on page 42, the semicolon after "for general propositions" was replaced with a period. on page 49, a quotation mark was added after "be instituted.". on page 67, "tranquility" was replaced with "tranquillity". on page 80, "is to to be" was replaced with "is to be". on page 85, a period was added after "2". on page 85, a period was added after "4". on page 87, a comma was added after "the landed". on page 104, "that" was replaced with "than". on page 105, "m^r bedford in" was replaced with "m^r bedford, in". on page 109, "m^r randolph, urged" was replaced with "m^r randolph urged". on page 117, "against the 43." was replaced with "against the 43,". on page 119, "it was formerly practised" was replaced with "it was formerly practised". on page 119, "wilsons" was replaced with "wilson's". on page 128, a closing quotation mark was placed after "7 years." on page 143, a period was added after "2". on page 159, "unamimous" was replaced with "unanimous". on page 162, the quotation mark was removed before "the supreme legislative power". in footnote 89, "conpensation" was replaced with "compensation". in footnote 89, "misdemesnor" was replaced with "misdemeanor". in footnote 89, "where shall be" was replaced with "there shall be". in footnote 89, "â§[2]" was replaced with "⧠2.". on page 164, "comittee" was replaced with "committee". on page 180, "tranquility" was replaced with "tranquillity". on page 184, "necessaryly" was replaced with "necessarily". in footnote 95, "posseses" was replaced with "possesses". on page 211, "wiliamson" was replaced with "williamson". on page 217, in two instances, "masst^s" was replaced with "mass^{ts}". on page 220, a comma was deleted after "m^r sherman". on page 233, a period was placed after "1". on page 236, a quotation mark was placed after "behaviour". on page 256, a comma was placed after "antient greece". on page 264, a semicolon was replaced with a period. on page 271, "comittee" was replaced with "committee". on page 274, "prepondenancy" was replaced with "preponderancy". on page 285, "elsewth" was replaced with "elseworth". on page 285, "contstitution" was replaced with "constitution". on page 286, "honorabl" was replaced with "honorable". on page 292, "occcasion" was replaced with "occasion". on page 293, "n j." was replaced with "n. j.". on page 322, "teusday" was replaced with "tuesday". on page 322, "hamshire" was replaced with "hampshire". on page 323, "hamshire" was replaced with "hampshire". on page 323, "inhabts" was replaced with "inhab^{ts}". on page 323, "brethern" was replaced with "brethren". on page 330, "brethern" was replaced with "brethren". on page 336, "mississpi" was replaced with "mississippi". on page 340, "mard" was replaced with "m^d". on page 340, "s." was replaced with "s. c.". on page 348, "hamshire" was replaced with "hampshire". on page 356, "weekest" was replaced with "weakest". on page 365, "orginal" was replaced with "original". on page 372, the quotation mark was removed before "or in which the harmony". throughout the document, there are instances of missing quotation marks, but it is unclear where quotation marks should be added. in those cases, the quotation marks were left as-is. throughout the document, "maddison" was replaced with "madison", and "sharman" was replaced with "sherman". although the document refers more often to a mr. patterson, instead of mr. paterson, some external sources indicate that the delegate's name was mr. paterson. both spellings were retained as-is. the journal of the debates in the convention which framed the constitution of the united states may-september, 1787 as recorded by james madison edited by gaillard hunt in two volumes volume ii. g. p. putnam's sons new york and london =the knickerbocker press= 1908 =the knickerbocker press, new york= contents of volume ii. page chronology vii journal of the constitutional convention 1 index 417 * * * * * fac-simile. facing page first page of the constitution, reduced 414 chronology of james madison. 1787. * * * * * 1787 july 19. advocates election of the executive by the people. july 20. speaks in favor of making the executive impeachable. july 21. seconds proposition to include the judiciary with the executive in power to revise laws. moves that judges be appointed by the executive with concurrence of two-thirds of senate. july 25. shows the difficulty of devising satisfactory mode of selecting executive. august 7. advocates liberal suffrage. august 8. moves that basis of representation in house of representatives be one to not more than 40,000 inhabitants. opposes proposition that money bills originate only in house of representatives. august 9. opposes incorporation in constitution of provision against persons of foreign birth holding office. august 10. moves that legislature have power to compel attendance of members. august 11. moves that congress publish its journals, except such parts of senate proceedings as may be ordered kept secret. advocates a centrally located capital. august 13. seconds motion in favor of liberal treatment of foreigners. speaks in favor of participation of senate in making appropriations. august 15. moves that all bills be passed upon by the executive and judiciary before becoming laws. august 16. advocates national power to tax exports. august 17. moves that legislature have power to declare war. august 18. submits propositions for national power over public lands, to form governments for new states, over indian affairs, over seat of government, to grant charters of incorporation, copyrights, to establish a university, grant patents, acquire forts, magazines, etc. speaks in favor of national control of militia. august 22. appointed on committee to consider navigation acts. moves that states have power to appoint militia officers under rank of general officers. moves to commit question of negative of state laws. moves to include the executive in treaty-making power. august 25. declares it is wrong to admit the idea of property in men in constitution. august 27. suggests that in case of death of president his council may act. moves form of oath for president. moves that judges' salaries be fixed. expresses doubt whether judiciary should have power over cases arising under constitution. august 28. moves that states be forbidden to lay embargoes, export and import duties. august 29. speaks in favor of navigation acts. august 31. moves that ratification of constitution be by a majority of states and people. advocates ratification by state conventions. appointed on committee to consider parts of constitution and propositions not yet acted upon. sept 3. thinks eventual election of president by legislature should be made difficult. sept 7. moves that senate have power to make treaties of peace without president. sept 8. moves that quorum of senate be two-thirds of all the members. seconds motion to increase representation. sept 14. suggests that legislature should have power to grant charters of incorporation. sept 17. signs constitution. journal of the constitutional convention of 1787. thursday july 19. in convention. on reconsideration of the vote rendering the executive re-eligible a 2^d time, m^r martin moved to re-instate the words, "to be ineligible a 2^d time." m^r governeur morris. it is necessary to take into one view all that relates to the establishment of the executive; on the due formation of which must depend the efficacy & utility of the union among the present and future states. it has been a maxim in political science that republican government is not adapted to a large extent of country, because the energy of the executive magistracy can not reach the extreme parts of it. our country is an extensive one. we must either then renounce the blessings of the union, or provide an executive with sufficient vigor to pervade every part of it. this subject was of so much importance that he hoped to be indulged in an extensive view of it. one great object of the executive is to controul the legislature. the legislature will continually seek to aggrandize & perpetuate themselves; and will seize those critical moments produced by war, invasion or convulsion for that purpose. it is necessary then that the executive magistrate should be the guardian of the people, even of the lower classes, ag^{st} legislative tyranny, against the great & the wealthy who in the course of things will necessarily compose the legislative body. wealth tends to corrupt the mind to nourish its love of power, and to stimulate it to oppression. history proves this to be the spirit of the opulent. the check provided in the 2^d branch was not meant as a check on legislative usurpations of power, but on the abuse of lawful powers, on the propensity in the 1^{st} branch to legislate too much to run into projects of paper money & similar expedients. it is no check on legislative tyranny. on the contrary it may favor it, and if the 1^{st} branch can be seduced may find the means of success. the executive therefore ought to be so constituted as to be the great protector of the mass of the people.--it is the duty of the executive to appoint the officers & to command the forces of the republic: to appoint 1. ministerial officers for the administration of public affairs. 2. officers for the dispensation of justice. who will be the best judges whether these appointments be well made? the people at large, who will know, will see, will feel the effects of them. again who can judge so well of the discharge of military duties for the protection & security of the people, as the people themselves who are to be protected & secured? he finds too that the executive is not to be re-eligible. what effect will this have? 1. it will destroy the great incitement to merit public esteem by taking away the hope of being rewarded with a reappointment. it may give a dangerous turn to one of the strongest passions in the human breast. the love of fame is the great spring to noble & illustrious actions. shut the civil road to glory & he may be compelled to seek it by the sword. 2. it will tempt him to make the most of the short space of time allotted him, to accumulate wealth and provide for his friends. 3. it will produce violations of the very constitution it is meant to secure. in moments of pressing danger the tried abilities and established character of a favorite magistrate will prevail over respect for the forms of the constitution. the executive is also to be impeachable. this is a dangerous part of the plan. it will hold him in such dependence that he will be no check on the legislature, will not be a firm guardian of the people and of the public interest. he will be the tool of a faction, of some leading demagogue in the legislature. these then are the faults of the executive establishment as now proposed. can no better establish^t be devised? if he is to be the guardian of the people let him be appointed by the people? if he is to be a check on the legislature let him not be impeachable. let him be of short duration, that he may with propriety be re-eligible. it has been said that the candidates for this office will not be known to the people. if they be known to the legislature, they must have such a notoriety and eminence of character, that they cannot possibly be unknown to the people at large. it cannot be possible that a man shall have sufficiently distinguished himself to merit this high trust without having his character proclaimed by fame throughout the empire. as to the danger from an unimpeachable magistrate he could not regard it as formidable. there must be certain great officers of state; a minister of finance, of war, of foreign affairs &c. these he presumes will exercise their functions in subordination to the executive, and will be amenable by impeachment to the public justice. without these ministers the executive can do nothing of consequence. he suggested a biennial election of the executive at the time of electing the 1^{st} branch, and the executive to hold over, so as to prevent any interregnum in the administration. an election by the people at large throughout so great an extent of country could not be influenced by those little combinations and those momentary lies, which often decide popular elections within a narrow sphere. it will probably, be objected that the election will be influenced by the members of the legislature; particularly of the 1^{st} branch, and that it will be nearly the same thing with an election by the legislature itself. it could not be denied that such an influence would exist. but it might be answered that as the legislature or the candidates for it would be divided, the enmity of one part would counteract the friendship of another; that if the administration of the executive were good, it would be unpopular to oppose his re-election, if bad it ought to be opposed & a reappointm^t prevented; and lastly that in every view this indirect dependence on the favor of the legislature could not be so mischievous as a direct dependence for his appointment. he saw no alternative for making the executive independent of the legislature but either to give him his office for life, or make him eligible by the people. again, it might be objected that two years would be too short a duration. but he believes that as long as he should behave himself well, he would be continued in his place. the extent of the country would secure his re-election ag^{st} the factions & discontents of particular states. it deserved consideration also that such an ingredient in the plan would render it extremely palatable to the people. these were the general ideas which occurred to him on the subject, and which led him to wish & move that the whole constitution of the executive might undergo reconsideration. m^r randolph urged the motion of m^r l. martin for restoring the words making the executive ineligible a 2^d time. if he ought to be independent, he should not be left under a temptation to court a re-appointment. if he should be re-appointable by the legislature, he will be no check on it. his revisionary power will be of no avail. he had always thought & contended as he still did that the danger apprehended by the little states was chimerical; but those who thought otherwise ought to be peculiarly anxious for the motion. if the executive be appointed, as has been determined, by the legislature, he will probably be appointed either by joint ballot of both houses, or be nominated by the 1^{st} and appointed by the 2^d branch. in either case the large states will preponderate. if he is to court the same influence for his re-appointment, will he not make his revisionary power, and all the other functions of his administration subservient to the views of the large states. besides, is there not great reason to apprehend that in case he should be re-eligible, a false complaisance in the legislature might lead them to continue an unfit man in office in preference to a fit one. it has been said that a constitutional bar to re-appointment will inspire unconstitutional endeavours to perpetuate himself. it may be answered that his endeavours can have no effect unless the people be corrupt to such a degree as to render all precautions hopeless; to which may be added that this argument supposes him to be more powerful & dangerous, than other arguments which have been used, admit, and consequently calls for stronger fetters on his authority. he thought an election by the legislature with an incapacity to be elected a second time would be more acceptable to the people than the plan suggested by m^r gov^r morris. m^r king did not like the ineligibility. he thought there was great force in the remark of m^r sherman, that he who has proved himself most fit for an office, ought not to be excluded by the constitution from holding it. he would therefore prefer any other reasonable plan that could be substituted. he was much disposed to think that in such cases the people at large would chuse wisely. there was indeed some difficulty arising from the improbability of a general concurrence of the people in favor of any one man. on the whole he was of opinion that an appointment by electors chosen by the people for the purpose, would be liable to fewest objections. m^r patterson's ideas nearly coincided he said with those of m^r king. he proposed that the executive should be appointed by electors to be chosen by the states in a ratio that would allow one elector to the smallest and three to the largest states. m^r wilson. it seems to be the unanimous sense that the executive should not be appointed by the legislature, unless he be rendered in-eligible a 2^d time: he perceived with pleasure that the idea was gaining ground, of an election mediately or immediately by the people. m^r madison. if it be a fundamental principle of free gov^t that the legislative, executive & judiciary powers should be _separately_ exercised, it is equally so that they be _independently_ exercised. there is the same & perhaps greater reason why the executive sh^d be independent of the legislature, than why the judiciary should. a coalition of the two former powers would be more immediately & certainly dangerous to public liberty. it is essential then that the appointment of the executive should either be drawn from some source, or held by some tenure that will give him a free agency with regard to the legislature. this could not be if he was to be appointable from time to time by the legislature. it was not clear that an appointment in the 1^{st} instance even with an ineligibility afterwards would not establish an improper connection between the two departments. certain it was that the appointment would be attended with intrigues and contentions that ought not to be unnecessarily admitted. he was disposed for these reasons to refer the appointment to some other source. the people at large was in his opinion the fittest in itself. it would be as likely as any that could be devised to produce an executive magistrate of distinguished character. the people generally could only know & vote for some citizen whose merits had rendered him an object of general attention & esteem. there was one difficulty however of a serious nature attending an immediate choice by the people. the right of suffrage was much more diffusive in the northern than the southern states; and the latter could have no influence in the election on the score of the negroes. the substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections. m^r gerry. if the executive is to be elected by the legislature he certainly ought not to be re-eligible. this would make him absolutely dependent. he was ag^{st} a popular election. the people are uninformed, and would be misled by a few designing men. he urged the expediency of an appointment of the executive by electors to be chosen by the state executives. the people of the states will then choose the 1^{st} branch; the legislatures of the states the 2^d branch of the national legislature, and the executives of the states, the national executive. this he thought would form a strong attachm^t in the states to the national system. the popular mode of electing the chief magistrate would certainly be the worst of all. if he should be so elected & should do his duty, he will be turned out for it like gov^r bowdoin in mass^{ts} & president sullivan in n. hampshire. on the question on m^r gov^r morris motion to reconsider generally the constitution of the executive mas. ay. c^t ay. n. j. ay. & all the others ay. m^r elseworth moved to strike out the appointm^t by the nat^l legislature, and to insert, to be chosen by electors appointed by the legislatures of the states in the following ratio; to wit--one for each state not exceeding 200,000[1] inhab^{ts} two for each above y^t number & not exceeding 300,000. and three for each state exceeding 300,000.--m^r broome 2^{ded}. the motion.[2] [1] the journal gives it 100,000.--_journal of the federal convention_, 190. [2] "mr. broom is a plain good man, with some abilities, but nothing to render him conspicuous. he is silent in public, but chearful and conversable in private. he is about 35 years old."--pierce's notes, _am. hist. rev._, iii., 330. m^r rutlidge was opposed to all the modes, except the appointm^t by the nat^l legislature. he will be sufficiently independent, if he be not re-eligible. m^r gerry preferred the motion of m^r elseworth to an appointm^t by the nat^l legislature, or by the people; tho' not to an app^t by the state executives. he moved that the electors proposed by m^r e. should be 25 in number, and allotted in the following proportion. to n. h. 1. to mas. 3. to r. i. 1. to con^t 2. to n. y. 2. n. j. 2. p^a 3. del. 1. m^d 2. v^a 3. n. c. 2. s. c. 2. geo. 1. the question as moved by m^r elseworth being divided, on the 1^{st} part shall y^e nat^l executive be appointed by electors? mas. div^d. con^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. on 2^d part shall the electors be chosen by the state legislatures? mas. ay. con^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a no. n. c. ay. s. c. no. geo. ay. the part relating to the ratio in which the states s^d chuse electors was postponed nem. con. m^r l. martin moved that the executive be ineligible a 2^d time. m^r williamson, 2^{ds} the motion. he had no great confidence in electors to be chosen for the special purpose. they would not be the most respectable citizens; but persons not occupied in the high offices of gov^t. they would be liable to undue influence, which might the more readily be practised as some of them will probably be in appointment 6 or 8 months before the object of it comes on. m^r elseworth supposed any persons might be appointed electors, excepting, solely, members of the nat^l legislature. on the question shall he be ineligible a 2^d time? mas. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. no. on the question shall the executive continue for 7 years? it passed in the negative mas. div^d. con^t ay.[3] n. j. no. p^a no. del. no. m^d no. v^a no. n. c. div^d. s. c. ay. geo. ay. [3] in the printed journal con^t, no: n. jersey ay.--madison's note. m^r king was afraid we sh^d shorten the term too much. m^r gov^r morris was for a short term, in order to avoid impeach^{ts} which w^d be otherwise necessary. m^r butler was ag^{st} the frequency of the elections. geo. & s. c. were too distant to send electors often. m^r elseworth was for 6 years. if the elections be too frequent, the executive will not be firm eno. there must be duties which will make him unpopular for the moment. there will be _outs_ as well as _ins_. his administration therefore will be attacked and misrepresented. m^r williamson was for 6 years. the expence will be considerable & ought not to be unnecessarily repeated. if the elections are too frequent, the best men will not undertake the service and those of an inferior character will be liable to be corrupted. on the question for 6 years? mas. ay. con^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. adjourned friday july 20. in convention. the postponed ratio of electors for appointing the executive; to wit 1 for each state whose inhabitants do not exceed 100.000. &c. being taken up. m^r madison observed that this would make in time all or nearly all the states equal. since there were few that would not in time contain the number of inhabitants intitling them to 3 electors; that this ratio ought either to be made temporary, or so varied as that it would adjust itself to the growing population of the states. m^r gerry moved that in the _1^{st} instance_ the electors should be allotted to the states in the following ratio: to n. h. 1. mass. 3. r. i. 1. con^t 2. n. y. 2. n. j. 2. p^a 3. del. 1. m^d 2. v^a 3. n. c. 2. s. c. 2. geo. 1. on the question to postpone in order to take up this motion of m^r gerry. it passed in the affirmative mass. ay. con^t no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r elseworth moved that 2 electors be allotted to n. h. some rule ought to be pursued; and n. h. has more than 100,000 inhabitants. he thought it would be proper also to allot 2. to georgia. m^r broom & m^r martin moved to postpone m^r gerry's allotment of electors, leaving a fit ratio to be reported by the committee to be appointed for detailing the resolutions. on this motion, mass. no. c^t no. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r houston 2^{ded} the motion of m^r elseworth to add another elector to n. h. & georgia. on the question; mass. no. c^t ay. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. m^r williamson moved as an amendment to m^r gerry's allotment of electors in the 1^{st} instance that in future elections of the nat^l executive, the number of electors to be appointed by the several states shall be regulated by their respective numbers of representatives in the 1^{st} branch pursuing as nearly as may be the present proportions. on question on m^r gerry's ratio of electors mass. ay. c^t ay. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. no. "to be removable on impeachment and conviction for malpractice or neglect of duty," see resol. 9. m^r pinkney & m^r gov^r morris moved to strike out this part of the resolution. m^r p. observ^d he ought not to be impeachable whilst in office. m^r davie. if he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. he considered this as an essential security for the good behaviour of the executive. m^r wilson concurred in the necessity of making the executive impeachable whilst in office. m^r gov^r morris. he can do no criminal act without coadjutors who may be punished. in case he should be re-elected, that will be a sufficient proof of his innocence. besides who is to impeach? is the impeachment to suspend his functions. if it is not the mischief will go on. if it is the impeachment will be nearly equivalent to a displacement, and will render the executive dependent on those who are to impeach. col. mason. no point is of more importance than that the right of impeachment should be continued. shall any man be above justice? above all shall that man be above it, who can commit the most extensive injustice? when great crimes were committed he was for punishing the principal as well as the coadjutors. there had been much debate & difficulty as to the mode of chusing the executive. he approved of that which had been adopted at first, namely of referring the appointment to the nat^l legislature. one objection ag^{st} electors was the danger of their being corrupted by the candidates, & this furnished a peculiar reason in favor of impeachments whilst in office. shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt? doc^r franklin was for retaining the clause as favorable to the executive. history furnishes one example only of a first magistrate being formally brought to public justice. every body cried out ag^{st} this as unconstitutional. what was the practice before this in cases where the chief magistrate rendered himself obnoxious? why recourse was had to assassination in w^{ch} he was not only deprived of his life but of the opportunity of vindicating his character. it w^d be the best way therefore to provide in the constitution for the regular punishment of the executive where his misconduct should deserve it, and for his honorable acquittal where he should be unjustly accused. m^r gov^r morris admits corruption & some few other offences to be such as ought to be impeachable; but thought the cases ought to be enumerated & defined. m^r madison thought it indispensable that some provision should be made for defending the community ag^{st} the incapacity, negligence or perfidy of the chief magistrate. the limitation of the period of his service was not a sufficient security. he might lose his capacity after his appointment. he might pervert his administration into a scheme of peculation or oppression. he might betray his trust to foreign powers. the case of the executive magistracy was very distinguishable, from that of the legislature or any other public body, holding offices of limited duration. it could not be presumed that all or even a majority of the members of an assembly would either lose their capacity for discharging, or be bribed to betray, their trust. besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. and if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. in the case of the executive magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the republic. m^r pinkney did not see the necessity of impeachments. he was sure they ought not to issue from the legislature who would in that case hold them as a rod over the executive and by that means effectually destroy his independence. his revisionary power in particular would be rendered altogether insignificant. m^r gerry urged the necessity of impeachments. a good magistrate will not fear them. a bad one ought to be kept in fear of them. he hoped the maxim would never be adopted here that the chief magistrate could do no wrong. m^r king expressed his apprehensions that an extreme caution in favor of liberty might enervate the government we were forming. he wished the house to recur to the primitive axiom that the three great departments of gov^{ts} should be separate & independent: that the executive & judiciary should be so as well as the legislative: that the executive should be so equally with the judiciary. would this be the case, if the executive should be impeachable? it had been said that the judiciary would be impeachable. but it should have been remembered at the same time that the judiciary hold their places not for a limited time, but during good behaviour. it is necessary therefore that a form should be established for trying misbehaviour. was the executive to hold his place during good behaviour? the executive was to hold his place for a limited term like the members of the legislature. like them, particularly the senate whose members would continue in appointm^t the same term of 6 years he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. like them therefore, he ought to be subject to no intermediate trial, by impeachment. he ought not to be impeachable unless he held his office during good behavior, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised. but under no circumstances ought he to be impeachable by the legislature. this would be destructive of his independence and of the principles of the constitution. he relied on the vigor of the executive as a great security for the public liberties. m^r randolph. the propriety of impeachments was a favorite principle with him. guilt wherever found ought to be punished. the executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections. he is aware of the necessity of proceeding with a cautious hand, and of excluding as much as possible the influence of the legislature from the business. he suggested for consideration an idea which had fallen (from col. hamilton) of composing a forum out of the judges belonging to the states: and even of requiring some preliminary inquest whether just ground of impeachment existed. doct^r franklin mentioned the case of the prince of orange during the late war. an agreement was made between france & holland; by which their two fleets were to unite at a certain time & place. the dutch fleet did not appear. every body began to wonder at it. at length it was suspected that the statholder was at the bottom of the matter. this suspicion prevailed more & more. yet as he could not be impeached and no regular examination took place, he remained in his office, and strengthening his own party, as the party opposed to him became formidable, he gave birth to the most violent animosities & contentions. had he been impeachable, a regular & peaceable enquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence of the public. m^r king remarked that the case of the statholder was not applicable. he held his place for life, and was not periodically elected. in the former case impeachments are proper to secure good behaviour. in the latter they are unnecessary; the periodical responsibility to the electors being an equivalent security. m^r wilson observed that if the idea were to be pursued, the senators who are to hold their places during the same term with the executive, ought to be subject to impeachment & removal. m^r pinkney apprehended that some gentlemen reasoned on a supposition that the executive was to have powers which would not be committed to him: he presumed that his powers would be so circumscribed as to render impeachments unnecessary. m^r gov^r morris's opinion had been changed by the arguments used in the discussion. he was now sensible of the necessity of impeachments, if the executive was to continue for any length of time in office. our executive was not like a magistrate having a life interest, much less like one having an hereditary interest in his office. he may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first magistrate in foreign pay, without being able to guard ag^{st} it by displacing him. one would think the king of england well secured ag^{st} bribery. he has as it were a fee simple in the whole kingdom. yet charles ii. was bribed by louis xiv. the executive ought therefore to be impeachable for treachery: corrupting his electors, and incapacity were other causes of impeachment. for the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. this magistrate is not the king but the prime minister. the people are the king. when we make him amenable to justice however we should take care to provide some mode that will not make him dependent on the legislature. it was moved & 2^{ded} to postpone the question of impeachments which was negatived, mas. & s. carolina only being ay. on y^e question, shall the executive be removable on impeachments &c.? mass. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. "executive to receive fixed compensation." agreed to nem. con. "to be paid out of the national treasury" agreed to, n. jersey only in the negative. m^r gerry & gov^r morris moved that the electors of the executive shall not be members of the nat^l legislature, nor officers of the u. states, nor shall the electors themselves be eligible to the supreme magistracy. agreed to nem. con. doc^r mcclurg[4] asked whether it would not be necessary, before a committee for detailing the constitution should be appointed, to determine on the means by which the executive, is to carry the laws into effect, and to resist combinations ag^{st} them. is he to have a military force for the purpose, or to have the command of the militia, the only existing force that can be applied to that use? as the resolutions now stand the committee will have no determinate directions on this great point. [4] "mr. mcclurg is a learned physician, but having never appeared before in public life his character as a politician is not sufficiently known. he attempted once or twice to speak, but with no great success. it is certain that he has a foundation of learning, on which, if he pleases, he may erect a character of high renown. the doctor is about 38 years of age, a gentleman of great respectability, and of a fair and unblemished character."--pierce's notes, _am. hist. rev._, iii., 332. m^r wilson thought that some additional directions to the committee w^d be necessary. m^r king. the committee are to provide for the end. their discretionary power to provide for the means is involved according to an established axiom. adjourned. saturday july 21 in convention m^r williamson moved that the electors of the executive should be paid out of the national treasury for the service to be performed by them. justice required this: as it was a national service they were to render. the motion was agreed to nem. con. m^r wilson moved as an amendment to resol^n 10. that the supreme nat^l judiciary should be associated with the executive in the revisionary power. this proposition had been before made and failed: but he was so confirmed by reflection in the opinion of its utility, that he thought it incumbent on him to make another effort: the judiciary ought to have an opportunity of remonstrating ag^{st} projected encroachments on the people as well as on themselves. it had been said that the judges, as expositors of the laws would have an opportunity of defending their constitutional rights. there was weight in this observation; but this power of the judges did not go far enough. laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the judges in refusing to give them effect. let them have a share in the revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the legislature.--m^r madison 2^{ded} the motion. m^r ghorum did not see the advantage of employing the judges in this way. as judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures. nor can it be necessary as a security for their constitutional rights. the judges in england have no such additional provision for their defence, yet their jurisdiction is not invaded. he thought it would be best to let the executive alone be responsible, and at most to authorize him to call on judges for their opinions. m^r elseworth approved heartily of the motion. the aid of the judges will give more wisdom & firmness to the executive. they will possess a systematic and accurate knowledge of the laws, which the executive cannot be expected always to possess. the law of nations also will frequently come into question. of this the judges alone will have competent information. m^r madison considered the object of the motion as of great importance to the meditated constitution. it would be useful to the judiciary departm^t by giving it an additional opportunity of defending itself ag^{st} legislative encroachments: it would be useful to the executive, by inspiring additional confidence & firmness in exerting the revisionary power: it would be useful to the legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity & technical propriety in the laws, qualities peculiarly necessary; & yet shamefully wanting in our republican codes. it would moreover be useful to the community at large as an additional check ag^{st} a pursuit of those unwise & unjust measures which constituted so great a portion of our calamities. if any solid objection could be urged ag^{st} the motion, it must be on the supposition that it tended to give too much strength either to the executive or judiciary. he did not think there was the least ground for this apprehension. it was much more to be apprehended that notwithstanding this co-operation of the two departments, the legislature would still be an overmatch for them. experience in all the states had evinced a powerful tendency in the legislature to absorb all power into its vortex. this was the real source of danger to the american constitutions; & suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles. m^r mason said he had always been a friend to this provision. it would give a confidence to the executive, which he would not otherwise have, and without which the revisionary power would be of little avail. m^r gerry did not expect to see this point which had undergone full discussion, again revived. the object he conceived of the revisionary power was merely to secure the executive department ag^{st} legislative encroachment. the executive therefore who will best know and be ready to defend his rights ought alone to have the defence of them. the motion was liable to strong objections. it was combining & mixing together the legislative & the other departments. it was establishing an improper coalition between the executive & judiciary departments. it was making statesmen of the judges; and setting them up as the guardians of the rights of the people. he relied for his part on the representatives of the people as the guardians of their rights & interests. it was making the expositors of the laws, the legislators which ought never to be done. a better expedient for correcting the laws, would be to appoint as had been done in pen^a, a person or persons of proper skill, to draw bills for the legislature. m^r strong thought with m^r gerry that the power of making ought to be kept distinct from that of expounding, the laws. no maxim was better established. the judges in exercising the function of expositors might be influenced by the part they had taken in framing the laws. m^r gov^r morris. some check being necessary on the legislature, the question is in what hands it should be lodged. on one side it was contended that the executive alone ought to exercise it. he did not think that an executive appointed for 6 years, and impeachable whilst in office w^d be a very effectual check. on the other side it was urged that he ought to be reinforced by the judiciary department. ag^{st} this it was objected that expositors of laws ought to have no hand in making them, and arguments in favor of this had been drawn from england. what weight was due to them might be easily determined by an attention to facts. the truth was that the judges in england had a great share in y^e legislation. they are consulted in difficult & doubtful cases. they may be & some of them are members of the legislature. they are or may be members of the privy council, and can there advise the executive as they will do with us if the motion succeeds. the influence the english judges may have in the latter capacity in strengthening the executive check can not be ascertained, as the king by his influence in a manner dictates the laws. there is one difference in the two cases however which disconcerts all reasoning from the british to our proposed constitution. the british executive has so great an interest in his prerogatives and such powerful means of defending them that he will never yield any part of them. the interest of our executive is so inconsiderable & so transitory, and his means of defending it so feeble, that there is the justest ground to fear his want of firmness in resisting incroachments. he was extremely apprehensive that the auxiliary firmness & weight of the judiciary would not supply the deficiency. he concurred in thinking the public liberty in greater danger from legislative usurpations than from any other source. it had been said that the legislature ought to be relied on as the proper guardians of liberty. the answer was short and conclusive. either bad laws will be pushed or not. on the latter supposition no check will be wanted. on the former a strong check will be necessary: and this is the proper supposition. emissions of paper money, largesses to the people--a remission of debts and similar measures, will at some times be popular, and will be pushed for that reason. at other times such measures will coincide with the interests of the legislature themselves, & that will be a reason not less cogent for pushing them. it may be thought that the people will not be deluded and misled in the latter case. but experience teaches another lesson. the press is indeed a great means of diminishing the evil, yet it is found to be unable to prevent it altogether. m^r l. martin, considered the association of the judges with the executive as a dangerous innovation; as well as one which could not produce the particular advantage expected from it. a knowledge of mankind, and of legislative affairs cannot be presumed to belong in a higher degree to the judges than to the legislature. and as to the constitutionality of laws, that point will come before the judges in their proper official character. in this character they have a negative on the laws. join them with the executive in the revision and they will have a double negative. it is necessary that the supreme judiciary should have the confidence of the people. this will soon be lost, if they are employed in the task of remonstrating ag^{st} popular measures of the legislature. besides in what mode & proportion are they to vote in the council of revision? m^r madison could not discover in the proposed association of the judges with the executive in the revisionary check on the legislature any violation of the maxim which requires the great departments of power to be kept separate & distinct. on the contrary he thought it an auxiliary precaution in favor of the maxim. if a constitutional discrimination of the departments on paper were a sufficient security to each ag^{st} encroachments of the others, all further provisions would indeed be superfluous. but experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests as will guarantee the provisions on paper. instead therefore of contenting ourselves with laying down the theory in the constitution that each department ought to be separate & distinct, it was proposed to add a defensive power to each which should maintain the theory in practice. in so doing we did not blend the departments together. we erected effectual barriers for keeping them separate. the most regular example of this theory was in the british constitution. yet it was not only the practice there to admit the judges to a seat in the legislature, and in the executive councils, and to submit to their previous examination all laws of a certain description, but it was a part of their constitution that the executive might negative any law whatever; a part of _their_ constitution which had been universally regarded as calculated for the preservation of the whole. the objection ag^{st} a union of the judiciary & executive branches in the revision of the laws, had either no foundation or was not carried far enough. if such a union was an improper mixture of powers, or such a judiciary check on the laws, was inconsistent with the theory of a free constitution, it was equally so to admit the executive to any participation in the making of laws; and the revisionary plan ought to be discarded altogether. col. mason observed that the defence of the executive was not the sole object of the revisionary power. he expected even greater advantages from it. notwithstanding the precautions taken in the constitution of the legislature, it would still so much resemble that of the individual states, that it must be expected frequently to pass unjust and pernicious laws. this restraining power was therefore essentially necessary. it would have the effect not only of hindering the final passage of such laws; but would discourage demagogues from attempting to get them passed. it has been said (by m^r l. martin) that if the judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of judges they would have one negative. he would reply that in this capacity they could impede in one case only, the operation of laws. they could declare an unconstitutional law void. but with regard to every law however unjust oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course. he wished the further use to be made of the judges, of giving aid in preventing every improper law. their aid will be the more valuable as they are in the habit and practice of considering laws in their true principles, and in all their consequences. m^r wilson. the separation of the departments does not require that they should have separate objects but that they should act separately tho' on the same objects. it is necessary that the two branches of the legislature should be separate and distinct, yet they are both to act precisely on the same object. m^r gerry had rather give the executive an absolute negative for its own defence than thus to blend together the judiciary & executive departments. it will bind them together in an offensive and defensive alliance ag^{st} the legislature, and render the latter unwilling to enter into a contest with them. m^r gov^r morris was surprised that any defensive provision for securing the effectual separation of the departments should be considered as an improper mixture of them. suppose that the three powers, were to be vested in three persons, by compact among themselves; that one was to have the power of making, another of executing, and a third of judging, the laws. would it not be very natural for the two latter after having settled the partition on paper, to observe, and would not candor oblige the former to admit, that as a security ag^{st} legislative acts of the former which might easily be so framed as to undermine the powers of the two others, the two others ought to be armed with a veto for their own defence, or at least to have an opportunity of stating their objections ag^{st} acts of encroachment? and would any one pretend that such a right tended to blend & confound powers that ought to be separately exercised? as well might it be said that if three neighbours had three distinct farms, a right in each to defend his farm ag^{st} his neighbours, tended to blend the farms together. m^r ghorum. all agree that a check on the legislature is necessary. but there are two objections ag^{st} admitting the judges to share in it which no observations on the other side seem to obviate, the 1^{st} is that the judges ought to carry into the exposition of the laws no prepossessions with regard to them. 2^d that as the judges will outnumber the executive, the revisionary check would be thrown entirely out of the executive hands, and instead of enabling him to defend himself, would enable the judges to sacrifice him. m^r wilson. the proposition is certainly not liable to all the objections which have been urged ag^{st} it. according (to m^r gerry) it will unite the executive & judiciary in an offensive & defensive alliance ag^{st} the legislature. according to m^r ghorum it will lead to a subversion of the executive by the judiciary influence. to the first gentleman the answer was obvious: that the joint weight of the two departments was necessary to balance the single weight of the legislature. to the 1^{st} objection stated by the other gentleman it might be answered that supposing the prepossession to mix itself with the exposition, the evil would be overbalanced by the advantages promised by the expedient. to the 2^d objection, that such a rule of voting might be provided in the detail as would guard ag^{st} it. m^r rutlidge thought the judges of all men the most unfit to be concerned in the revisionary council. the judges ought never to give their opinion on a law till it comes before them. he thought it equally unnecessary. the executive could advise with the officers of state, as of war, finance &c. and avail himself of their information & opinions. on question on m^r wilson's motion for joining the judiciary in the revision of laws it passed in the negative- mass. no. con^t ay. n. j. not present. p^a div^d. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. div^d. resol. 10, giving the ex a qualified veto, without the amend^t was then ag^d to nem. con. the motion made by m^r madison july 18. & then postponed, "that the judges sh^d be nominated by the executive & such nominations become appointments unless disagreed to by 2/3 of the 2^d branch of the legislature," was now resumed. m^r madison stated as his reasons for the motion, 1. that it secured the responsibility of the executive who would in general be more capable & likely to select fit characters than the legislature, or even the 2^d b. of it, who might hide their selfish motives under the number concerned in the appointment. 2. that in case of any flagrant partiality or error, in the nomination it might be fairly presumed that 2/3 of the 2^d branch would join in putting a negative on it. 3. that as the 2^d b. was very differently constituted when the appointment of the judges was formerly referred to it, and was now to be composed of equal votes from all the states, the principle of compromise which had prevailed in other instances required in this that there sh^d be a concurrence of two authorities, in one of which the people, in the other the states should be represented. the executive magistrate w^d be considered as a national officer, acting for and equally sympathizing with every part of the u. states. if the 2^d branch alone should have this power, the judges might be appointed by a minority of the people, tho' by a majority, of the states, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the states: and as it would moreover throw the appointments entirely into the hands of y^e northern states, a perpetual ground of jealousy & discontent would be furnished to the southern states. m^r pinkney was for placing the appointm^t in the 2^d b. exclusively. the executive will possess neither the requisite knowledge of characters, nor confidence of the people for so high a trust. m^r randolph w^d have preferred the mode of appointm^t proposed formerly by m^r ghorum, as adopted in the constitution of mass^{ts} but thought the motion depending so great an improvement of the clause as it stands, that he anxiously wished it success. he laid great stress on the responsibility of the executive as a security for fit appointments. appointments by the legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications. the same inconveniences will proportionally prevail if the appointments be referred to either branch of the legislature or to any other authority administered by a number of individuals. m^r elseworth would prefer a negative in the executive on a nomination by the 2^d branch, the negative to be overruled by a concurrence of 2/3 of the 2^d b. to the mode proposed by the motion; but preferred an absolute appointment by the 2^d branch to either. the executive will be regarded by the people with a jealous eye. every power for augmenting unnecessarily his influence will be disliked. as he will be stationary it was not to be supposed he could have a better knowledge of characters. he will be more open to caresses & intrigues than the senate. the right to supersede his nomination will be ideal only. a nomination under such circumstances will be equivalent to an appointment. m^r gov^r morris supported the motion. 1. the states in their corporate capacity will frequently have an interest staked on the determination of the judges. as in the senate the states are to vote the judges ought not to be appointed by the senate. next to the impropriety of being judge in one's own cause, is the appointment of the judge. 2. it had been said the executive would be uninformed of characters. the reverse was y^e truth. the senate will be so. they must take the character of candidates from the flattering pictures drawn by their friends. the executive in the necessary intercourse with every part of the u. s. required by the nature of his administration, will or may have the best possible information. 3. it had been said that a jealousy would be entertained of the executive. if the executive can be safely trusted with the command of the army, there cannot surely be any reasonable ground of jealousy in the present case. he added that if the objections ag^{st} an appointment of the executive by the legislature, had the weight that had been allowed there must be some weight in the objection to an appointment of the judges by the legislature or by any part of it. m^r gerry. the appointment of the judges like every other part of the constitution sh^d be so modelled as to give satisfaction both to the people and to the states. the mode under consideration will give satisfaction to neither. he could not conceive that the executive could be as well informed of characters throughout the union, as the senate. it appeared to him also a strong objection that 2/3 of the senate were required to reject a nomination of the executive. the senate would be constituted in the same manner as congress. and the appointments of congress have been generally good. m^r madison, observed that he was not anxious that 2/3 should be necessary to disagree to a nomination. he had given this form to his motion chiefly to vary it the more clearly from one which had just been rejected. he was content to obviate the objection last made, and accordingly so varied the motion as to let a majority reject. col. mason found it his duty to differ from his colleagues in their opinions & reasonings on this subject. notwithstanding the form of the proposition by which the appointment seemed to be divided between the executive & senate, the appointment was substantially vested in the former alone. the false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. he considered the appointment by the executive as a dangerous prerogative. it might even give him an influence over the judiciary department itself. he did not think the difference of interest between the northern and southern states could be properly brought into this argument. it would operate & require some precautions in the case of regulating navigation, commerce & imposts; but he could not see that it had any connection with the judiciary department. on the question, the motion now being "that the executive should nominate & such nominations should become appointments unless disagreed to by the senate" mass. ay. c^t no. p^a ay. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. on question for agreeing to the clause as it stands by which the judges are to be appointed by the 2^d branch mass. no. c^t ay. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay. adjourned. monday july 23. in convention m^r john langdon & m^r nicholas gilman[5] from n. hampshire,[6] took their seats. [5] m^r gilman is modest, genteel, and sensible. there is nothing brilliant or striking in his character, but there is something respectable and worthy in the man.--about 30 years of age."--pierce's notes, _am. hist. rev._, iii., 325. he did not speak in the convention. [6] the act appointing deputies to the convention was not passed by the new hampshire legislature till june 27, 1787.--_journal of federal convention_, 17. resol:^n 17. that provision ought to be made for future amendments of the articles of union, agreed to, nem. con. resol^n 18. "requiring the legis: execut: & jud^y of the states to be bound by oath to support the articles of union," taken into consideration. m^r williamson suggests that a reciprocal oath should be required from the national officers, to support the governments of the states. m^r gerry moved to insert as an amendm^t that the oath of the officers of the national government also should extend to the support of the nat^l gov^t which was agreed to nem. con. m^r wilson said he was never fond of oaths, considering them as a left handed security only. a good gov^t did not need them, and a bad one could not or ought not to be supported. he was afraid they might too much trammel the members of the existing gov^t in case future alterations should be necessary; and prove an obstacle to resol: 17. just ag^d to. m^r ghorum did not know that oaths would be of much use; but could see no inconsistency between them and the 17. resol. or any regular amend^t of the constitution. the oath could only require fidelity to the existing constitution. a constitutional alteration of the constitution, could never be regarded as a breach of the constitution, or of any oath to support it. m^r gerry thought with m^r ghorum there could be no shadow of inconsistency in the case. nor could he see any other harm that could result from the resolution. on the other side he thought one good effect would be produced by it. hitherto the officers of the two governments had considered them as distinct from, and not as parts of the general system, & had in all cases of interference given a preference to the state gov^{ts}. the proposed oath will cure that error. the resol^n (18) was agreed to nem. con. resol: 19. referring the new constitution to assemblies to be chosen by the people for the express purpose of ratifying it was next taken into consideration. m^r elseworth moved that it be referred to the legislatures of the states for ratification. m^r patterson 2^{ded} the motion. col. mason considered a reference of the plan to the authority of the people as one of the most important and essential of the resolutions. the legislatures have no power to ratify it. they are the mere creatures of the state constitutions, and cannot be greater than their creators. and he knew of no power in any of the constitutions, he knew there was no power in some of them, that could be competent to this object. whither then must we resort? to the people with whom all power remains that has not been given up in the constitutions derived from them. it was of great moment he observed that this doctrine should be cherished as the basis of free government. another strong reason was that admitting the legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding legislatures having equal authority could undo the acts of their predecessors; and the national gov^t would stand in each state on the weak and tottering foundation of an act of assembly. there was a remaining consideration of some weight. in some of the states the gov^{ts} were not derived from the clear & undisputed authority of the people. this was the case in virginia. some of the best & wisest citizens considered the constitution as established by an assumed authority. a national constitution derived from such a source would be exposed to the severest criticisms. m^r randolph. one idea has pervaded all our proceedings, to wit, that opposition as well from the states as from individuals, will be made to the system to be proposed. will it not then be highly imprudent, to furnish any unnecessary pretext by the mode of ratifying it. added to other objections ag^{st} a ratification by the legislative authority only, it may be remarked that there have been instances in which the authority of the common law has been set up in particular states ag^{st} that of the confederation which has had no higher sanction than legislative ratification.--whose opposition will be most likely to be excited ag^{st} the system? that of the local demagogues who will be degraded by it from the importance they now hold. these will spare no efforts to impede that progress in the popular mind which will be necessary to the adoption of the plan, and which every member will find to have taken place in his own, if he will compare his present opinions with those brought with him into the convention. it is of great importance therefore that the consideration of this subject should be transferred from the legislatures where this class of men, have their full influence to a field in which their efforts can be less mischievous. it is moreover worthy of consideration that some of the states are averse to any change in their constitution, and will not take the requisite steps, unless expressly called upon to refer the question to the people. m^r gerry. the arguments of col. mason & m^r randolph prove too much. they prove an unconstitutionality in the present federal system & even in some of the state gov^{ts}. inferences drawn from such a source must be inadmissible. both the state gov^{ts} & the federal gov^t have been too long acquiesced in, to be now shaken. he considered the confederation to be paramount to any state constitution. the last article of it authorizing alterations must consequently be so as well as the others, and every thing done in pursuance of the article must have the same high authority with the article. great confusion he was confident would result from a recurrence to the people. they would never agree on any thing. he could not see any ground to suppose that the people will do what their rulers will not. the rulers will either conform to, or influence the sense of the people. m^r ghorum was ag^{st} referring the plan to the legislatures. 1. men chosen by the people for the particular purpose, will discuss the subject more candidly than members of the legislature who are to lose the power which is to be given up to the gen^l gov^t. 2. some of the legislatures are composed of several branches. it will consequently be more difficult in these cases to get the plan through the legislatures, than thro' a convention. 3. in the states many of the ablest men are excluded from the legislatures, but may be elected into a convention. among these may be ranked many of the clergy who are generally friends to good government. their services were found to be valuable in the formation & establishment of the constitution of massach^{ts}. 4. the legislatures will be interrupted with a variety of little business, by artfully pressing which designing men will find means to delay from year to year, if not to frustrate altogether the national system. 5. if the last art: of the confederation is to be pursued the unanimous concurrence of the states will be necessary. but will any one say, that all the states are to suffer themselves to be ruined, if rho. island should persist in her opposition to general measures. some other states might also tread in her steps. the present advantage which n. york seems to be so much attached to, of taxing her neighbours by the regulation of her trade, makes it very probable, that she will be of the number. it would therefore deserve serious consideration whether provision ought not to be made for giving effect to the system without waiting for the unanimous concurrence of the states. m^r elseworth. if there be any legislatures who should find themselves incompetent to the ratification, he should be content to let them advise with their constituents and pursue such a mode as w^d be competent. he thought more was to be expected from the legislatures than from the people. the prevailing wish of the people in the eastern states is to get rid of the public debt; and the idea of strengthening the nat^l gov^t carries with it that of strengthening the public debt. it was said by col. mason 1. that the legislatures have no authority in this case. 2. that their successors having equal authority could rescind their acts. as to the 2^d point he could not admit it to be well founded. an act to which the states by their legislatures, make themselves parties, becomes a compact from which no one of the parties can recede of itself. as to the 1^{st} point, he observed that a new sett of ideas seemed to have crept in since the articles of confederation were established. conventions of the people, or with power derived expressly from the people, were not then thought of. the legislatures were considered as competent. their ratification has been acquiesced in without complaint. to whom have cong^s applied on subsequent occasions for further powers? to the legislatures; not to the people. the fact is that we exist at present, and we need not enquire how, as a federal society, united by a charter one article of which is that alterations therein may be made by the legislative authority of the states. it has been said that if the confederation is to be observed, the states must _unanimously_ concur in the proposed innovations. he would answer that if such were the urgency & necessity of our situation as to warrant a new compact among a part of the states, founded on the consent of the people; the same pleas would be equally valid in favor of a partial compact, founded on the consent of the legislatures. m^r williamson thought the resol:^n (19) so expressed as that it might be submitted either to the legislatures or to conventions recommended by the legislatures. he observed that some legislatures were evidently unauthorized to ratify the system. he thought too that conventions were to be preferred as more likely to be composed of the ablest men in the states. m^r gov^r morris considered the inference of m^r elseworth from the plea of necessity as applied to the establishment of a new system on y^e consent of the people of a part of the states, in favor of a like establishm^t on the consent of a part of the legislatures, as a non sequitur. if the confederation is to be pursued no alteration can be made without the unanimous consent of the legislatures: legislative alterations not conformable to the federal compact, would clearly not be valid. the judges would consider them as null & void. whereas in case of an appeal to the people of the u. s., the supreme authority, the federal compact may be altered by a _majority of them_; in like manner as the constitution of a particular state may be altered by a majority of the people of the state. the amendm^t moved by m^r elseworth erroneously supposes that we are proceeding on the basis of the confederation. this convention is unknown to the confederation. m^r king thought with m^r elseworth that the legislatures had a competent authority, the acquiescence of the people of america in the confederation, being equivalent to a formal ratification by the people. he thought with m^r e. also that the plea of necessity was as valid in the one case as the other. at the same time he preferred a reference to the authority of the people expressly delegated to conventions, as the most certain means of obviating all disputes & doubts concerning the legitimacy of the new constitution; as well as the most likely means of drawing forth the best men in the states to decide on it. he remarked that among other objections made in the state of n. york to granting powers to cong^s one had been that such powers as would operate within the state, could not be reconciled to the constitution; and therefore were not grantible by the legislative authority. he considered it as of some consequence also to get rid of the scruples which some members of the state legislatures might derive from their oaths to support & maintain the existing constitutions. m^r madison thought it clear that the legislatures were incompetent to the proposed changes. these changes would make essential inroads on the state constitutions, and it would be a novel & dangerous doctrine that a legislature could change the constitution under which it held its existence. there might indeed be some constitutions within the union, which had given a power to the legislature to concur in alterations of the federal compact. but there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. he considered the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a _league_ or _treaty_, and a _constitution_. the former in point of _moral obligation_ might be as inviolable as the latter. in point of _political operation_, there were two important distinctions in favor of the latter. 1. a law violating a treaty ratified by a pre-existing law, might be respected by the judges as a law, though an unwise or perfidious one. a law violating a constitution established by the people themselves, would be considered by the judges as null & void. 2. the doctrine laid down by the law of nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. in the case of a union of people under one constitution, the nature of the pact has always been understood to exclude such an interpretation. comparing the two modes in point of expediency he thought all the considerations which recommended this convention in preference to congress for proposing the reform were in favor of state conventions in preference to the legislatures for examining and adopting it. on question on m^r elseworth's motion to refer the plan to the legislatures of the states n. h. no. mass. no. c^t ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r gov^r morris moved that the reference of the plan be made to one general convention, chosen & authorized by the people to consider, _amend_, & establish the same.--not seconded. on question for agreeing to resolution 19. touching the mode of ratification as reported from the committee of the whole; viz, to refer the const^n, after the approbation of cong^s to assemblies chosen by the people; n. h. ay. mass. ay. c^t ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gov^r morris & m^r king moved that the representation in the second branch consist of ---members from each state, who shall vote per capita. m^r elseworth said he had always approved of voting in that mode. m^r gov^r morris moved to fill the _blank_ with _three_. he wished the senate to be a pretty numerous body. if two members only should be allowed to each state, and a majority be made a quorum, the power would be lodged in 14 members, which was too small a number for such a trust. m^r ghorum preferred two to three members for the blank. a small number was most convenient for deciding on peace & war &c. which he expected would be vested in the 2^d branch. the number of states will also increase. kentucky, vermont, the province of mayne & franklin will probably soon be added to the present number. he presumed also that some of the largest states would be divided. the strength of the general gov^t will lie not in the largeness, but in the smallness of the states. col. mason thought 3 from each state including new states would make the 2^d branch too numerous. besides other objections, the additional expence ought always to form one, where it was not absolutely necessary. m^r williamson. if the number be too great, the distant states will not be on an equal footing with the nearer states. the latter can more easily send & support their ablest citizens. he approved of the voting per capita. on the question for filling the blank with "_three_" n. h. no. mass. no. con^t no. p^a ay. del. no. v^a no. n. c. no. s. c. no. geo. no. on question for filling it with "two." agreed to nem. con. m^r l martin was opposed to voting per capita, as departing from the idea of the _states_ being represented in the 2^d branch. m^r carroll,[7] was not struck with any particular objection ag^{st} the mode; but he did not wish so hastily to make so material an innovation. [7] "mr. carrol is a man of large fortune, and influence in his state. he possesses plain good sense, and is in the full confidence of his countrymen. this gentleman is about [blank] years of age."--pierce's notes, _am. hist. rev._, iii., 330. on the question on the whole motion viz. the 2^d b. to consist of 2 members from each state and to vote per capita, n. h. ay. mass. ay. c^t ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r houston[8] & m^r spaight moved "that the appointment of the executive by electors chosen by the legislatures of the states, be reconsidered." m^r houston urged the extreme inconveniency & the considerable expence, of drawing together men from all the states for the single purpose of electing the chief magistrate. [8] "mr. houston is an attorney at law, and has been member of congress for the state of georgia. he is a gentleman of family, and was educated in england. as to his legal or political knowledge he has very little to boast of. nature seems to have done more for his corporeal than mental powers. his person is striking, but his mind very little improved with useful or elegant knowledge. he has none of the talents requisite for the orator, but in public debate is confused and irregular. mr. houston is about 30 years of age of an amiable and sweet temper, and of good and honorable principles."--pierce's notes, _am. hist. rev._, iii., 334. on the question which was put without any debate n. h. ay. mass. ay. ct. ay. p^a no. del. ay. m^d no. virg^a no. n. c. ay. s. c. ay. geo. ay. ordered that tomorrow be assigned for the reconsideration, con^t & pen^a no--all the rest ay. m^r gerry moved that the proceedings of the convention for the establishment of a nat^l gov^t (except the part relating to the executive), be referred to a committee to prepare & report a constitution conformable thereto. gen^l pinkney reminded the convention that if the committee should fail to insert some security to the southern states ag^{st} an emancipation of slaves, and taxes on exports, he sh^d be bound by duty to his state to vote ag^{st} their report. the app^t of a com^e as moved by m^r gerry. ag^d to nem. con. shall the com^e consist of 10 members one from each state pres^t--all the states were _no_, except delaware, _ay_. shall it consist of 7. members n. h. ay. mas. ay. c^t ay. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. ay. geo. no. the question being lost by an equal division of votes. it was agreed, nem-conthat the committee consist of 5 members to be appointed tomorrow. adjourned. tuesday july 24. in convention the appointment of the executive by electors reconsidered. m^r houston moved that he be appointed by the "nat^l legislature," instead of "electors appointed by the state legislatures" according to the last decision of the mode. he dwelt chiefly on the improbability, that capable men would undertake the service of electors from the more distant states. m^r spaight seconded the motion. m^r gerry opposed it. he thought there was no ground to apprehend the danger urged by m^r houston. the election of the executive magistrate will be considered as of vast importance and will create great earnestness. the best men, the governours of the states will not hold it derogatory from their character to be the electors. if the motion should be agreed to, it will be necessary to make the executive ineligible a 2^d time, in order to render him independent of the legislature; which was an idea extremely repugnant to his way of thinking. m^r strong supposed that there would be no necessity, if the executive should be appointed by the legislature, to make him ineligible a 2^d time; as new elections of the legislature will have intervened; and he will not depend for his 2^d appointment on the same sett of men as his first was rec^d from. it had been suggested that _gratitude_ for his past appointment w^d produce the same effect as dependence for his future appointment. he thought very differently. besides this objection would lie ag^{st} the electors who would be objects of gratitude as well as the legislature. it was of great importance not to make the gov^t too complex which would be the case if a new sett of men like the electors should be introduced into it. he thought also that the first characters in the states would not feel sufficient motives to undertake the office of electors. m^r williamson was for going back to the original ground; to elect the executive for 7 years and render him ineligible a 2^d time. the proposed electors would certainly not be men of the 1^{st} nor even of the 2^d grade in the states. these would all prefer a seat either in the senate or the other branch of the legislature. he did not like the unity in the executive. he had wished the executive power to be lodged in three men taken from three districts into which the states should be divided. as the executive is to have a kind of veto on the laws, and there is an essential difference of interests between the n. & s. states, particularly in the carrying trade, the power will be dangerous, if the executive is to be taken from part of the union, to the part from which he is not taken. the case is different here from what it is in england; where there is a sameness of interests throughout the kingdom. another objection ag^{st} a single magistrate is that he will be an elective king, and will feel the spirit of one. he will spare no pains to keep himself in for life, and will then lay a train for the succession of his children. it was pretty certain he thought that we should at some time or other have a king; but he wished no precaution to be omitted that might postpone the event as long as possible.--ineligibility a 2^d time appeared to him to be the best precaution. with this precaution he had no objection to a longer term than 7 years. he would go as far as 10 or 12 years. m^r gerry moved that the legislatures of the states should vote by ballot for the executive in the same proportions as it had been proposed they should chuse electors; and that in case a majority of the votes should not centre on the same person, the 1^{st} branch of the nat^l legislature should chuse two out of the 4 candidates having most votes, and out of these two, the 2^d branch should chuse the executive. m^r king seconded the motion--and on the question to postpone in order to take it into consideration. the _noes_ were so predominant, that the states were not counted. question on m^r houston's motion that the executive be app^d by the na^l legislature. n. h. ay. mass. ay. c^t no. n. j. ay. p^a no. del. ay. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. m^r l. martin & m^r gerry moved to re-instate the ineligibility of the executive a 2^d time. m^r elseworth. with many this appears a natural consequence of his being elected by the legislature. it was not the case with him. the executive he thought should be reelected if his conduct proved him worthy of it. and he will be more likely to render himself, worthy of it if he be rewardable with it. the most eminent characters also, will be more willing to accept the trust under this condition, than if they foresee a necessary degradation at a fixt period. m^r gerry. that the executive sh^d be independent of the legislature is a clear point. the longer the duration of his appointment the more will his dependence be diminished. it will be better then for him to continue 10. 15. or even 20. years and be ineligible afterwards. m^r king was for making him re-eligible. this is too great an advantage to be given up for the small effect it will have on his dependence, if impeachments are to lie. he considered these as rendering the tenure during pleasure. m^r l. martin, suspending his motion as to the ineligibility, moved "that the appointm^t of the executive shall continue for eleven years. m^r gerry suggested fifteen years. m^r king twenty years. this is the medium life of princes.[9] [9] this might possibly be meant as a carricature of the previous motions in order to defeat the object of them.--madison's note. m^r davie eight years. m^r wilson. the difficulties & perplexities into which the house is thrown proceed from the election by the legislature which he was sorry had been reinstated. the inconveniency of this mode was such that he would agree to almost any length of time in order to get rid of the dependence which must result from it. he was persuaded that the longest term would not be equivalent to a proper mode of election, unless indeed it should be during good behaviour. it seemed to be supposed that at a certain advance of life, a continuance in office would cease to be agreeable to the officer, as well as desirable to the public. experience had shewn in a variety of instances that both a capacity & inclination for public service existed in very advanced stages. he mentioned the instance of a doge of venice who was elected after he was 80 years of age. the popes have generally been elected at very advanced periods, and yet in no case had a more steady or a better concerted policy been pursued than in the court of rome. if the executive should come into office at 35 years of age, which he presumes may happen & his continuance should be fixt at 15 years, at the age of 50. in the very prime of life, and with all the aid of experience, he must be cast aside like a useless hulk. what an irreparable loss would the british jurisprudence have sustained, had the age of 50. been fixt there as the ultimate limit of capacity or readiness to serve the public. the great luminary (l^d mansfield) held his seat for thirty years after his arrival at that age. notwithstanding what had been done he could not but hope that a better mode of election would yet be adopted; and one that would be more agreeable to the general sense of the house. that time might be given for further deliberation he w^d move that the present question be postponed till tomorrow. m^r broom seconded the motion to postpone. m^r gerry. we seem to be entirely at a loss on this head. he would suggest whether it would not be advisable to refer the clause relating to the executive to the committee of detail to be appointed. perhaps they will be able to hit on something that may unite the various opinions which have been thrown out. m^r wilson. as the great difficulty seems to spring from the mode of election, he w^d suggest a mode which had not been mentioned. it was that the executive be elected for 6 years by a small number, not more than 15 of the nat^l legislature, to be drawn from it, not by ballot, but by lot and who should retire immediately and make the election without separating. by this mode intrigue would be avoided in the first instance, and the dependence would be diminished. this was not he said a digested idea and might be liable to strong objections. m^r gov^r morris. of all possible modes of appointment that by the legislature is the worst. if the legislature is to appoint, and to impeach or to influence the impeachment, the executive will be the mere creature of it. he had been opposed to the impeachment but was now convinced that impeachments must be provided for, if the app^t was to be of any duration. no man w^d say, that an executive known to be in the pay of an enemy, should not be removable in some way or other. he had been charged heretofore (by col. mason) with inconsistency in pleading for confidence in the legislature on some occasions, & urging a distrust on others. the charge was not well founded. the legislature is worthy of unbounded confidence in some respects, and liable to equal distrust in others. when their interest coincides precisely with that of their constituents, as happens in many of their acts, no abuse of trust is to be apprehended. when a strong personal interest happens to be opposed to the general interest, the legislature cannot be too much distrusted. in all public bodies there are two parties. the executive will necessarily be more connected with one than with the other. there will be a personal interest therefore in one of the parties to oppose as well as in the other to support him. much had been said of the intrigues, that will be practised by the executive to get into office. nothing had been said on the other side of the intrigues to get him out of office. some leader of a party will always covet his seat, will perplex his administration, will cabal with the legislature, till he succeeds in supplanting him. this was the way in which the king of england was got out, he meant the real king, the minister. this was the way in which pitt (l^d chatham) forced himself into place. fox was for pushing the matter still farther. if he had carried his india bill, which he was very near doing, he would have made the minister, the king in form almost as well as in substance. our president will be the british minister, yet we are about to make him appointable by the legislature. something had been said of the danger of monarchy. if a good government should not now be formed, if a good organization of the executive should not be provided, he doubted whether we should not have something worse than a limited monarchy. in order to get rid of the dependence of the executive on the legislature, the expedient of making him ineligible a 2^d time had been devised. this was as much as to say we sh^d give him the benefit of experience, and then deprive ourselves of the use of it. but make him ineligible a 2^d time--and prolong his duration even to 15 years, will he by any wonderful interposition of providence at that period cease to be a man? no he will be unwilling to quit his exaltation, the road to his object thro' the constitution will be shut; he will be in possession of the sword, a civil war will ensue, and the co[~m]ander of the victorious army on which ever side, will be the despot of america. this consideration renders him particularly anxious that the executive should be properly constituted. the vice here would not, as in some other parts of the system be curable. it is the most difficult of all rightly to balance the executive. make him too weak: the legislature will usurp his powers. make him too strong. he will usurp on the legislature. he preferred a short period, a re-eligibility, but a different mode of election. a long period would prevent an adoption of the plan: it ought to do so. he sh^d himself be afraid to trust it. he was not prepared to decide on m^r wilson's mode of election just hinted by him. he thought it deserved consideration. it would be better that chance sh^d decide than intrigue. on a question to postpone the consideration of the resolution on the subject of the executive n. h. no. mass. no. c^t ay. n. j. no. p^a ay. del. div^d. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. m^r wilson then moved that the executive be chosen every ---years by ---electors to be taken by lot from the nat^t legislature who shall proceed immediately to the choice of the executive and not separate until it be made." m^r carrol 2^{ds} the motion. m^r gerry. this is committing too much to chance. if the lot should fall on a sett of unworthy men, an unworthy executive must be saddled on the country. he thought it had been demonstrated that no possible mode of electing by the legislature could be a good one. m^r king. the lot might fall on a majority from the same state which w^d ensure the election of a man from that state. we ought to be governed by reason, not by chance. as nobody seemed to be satisfied, he wished the matter to be postponed. m^r wilson did not move this as the best mode. his opinion remained unshaken that we ought to resort to the people for the election. he seconded the postponement. m^r gov^r morris observed that the chances were almost infinite ag^{st} a majority of electors from the same state. on a question whether the last motion was in order, it was determined in the affirmative: 7 ays. 4 noes. on the question of postponem^t it was agreed to nem. con. m^r carrol took occasion to observe that he considered the clause declaring that direct taxation on the states should be in proportion to representation, previous to the obtaining an actual census, as very objectionable, and that he reserved to himself the right of opposing it, if the report of the committee of detail should leave it in the plan. m^r gov^r morris hoped the committee would strike out the whole of the clause proportioning direct taxation to representation. he had only meant it as a bridge[10] to assist us over a certain gulph; having passed the gulph the bridge may be removed. he thought the principle laid down with so much strictness, liable to strong objections. [10] the object was to lessen the eagerness on one side, & the opposition on the other, to the share of representation claimed by the s. states on account of the negroes.--madison's note. on a ballot for a committee to report a constitution conformable to the resolutions passed by the convention, the members chosen were m^r rutlidge, m^r randolph, m^r ghorum, m^r elseworth, m^r wilson-on motion to discharge the com^e of the whole from the propositions submitted to the convention by m^r c. pinkney as the basis of a constitution, and to refer them to the committee of detail just appointed, it was ag^d to nem: con. a like motion was then made & agreed to nem: con: with respect to the propositions of m^r patterson. adjourned. wednesday july 25. in convention clause relating to the executive being again under consideration[11] [11] "permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of foreigners into the administration of our national government; and to declare expressly that the command in chief of the american army shall not be given to, nor devolve on, any but a natural _born_ citizen."--john jay to washington, july 25, 1787 (wash. mss.). m^r elseworth moved "that the executive be appointed by the legislature," except when the magistrate last chosen shall have continued in office the whole term for which he was chosen, & be reeligible, in which case the choice shall be by electors appointed by the legislatures of the states for that purpose. by this means a deserving magistrate may be reelected without making him dependent on the legislature. m^r gerry repeated his remark that an election at all by the nat^l legislature was radically and incurably wrong; and moved that the executive be appointed by the governours & presidents of the states, with advice of their councils, and where there are no councils by electors chosen by the legislatures. the executives to vote in the following proportions: viz-m^r madison. there are objections ag^{st} every mode that has been, or perhaps can be proposed. the election must be made either by some existing authority under the nat^l or state constitutions--or by some special authority derived from the people--or by the people themselves.--the two existing authorities under the nat^l constitution w^d be the legislative & judiciary. the latter he presumed was out of the question. the former was in his judgment liable to insuperable objections. besides the general influence of that mode on the independence of the executive, 1. the election of the chief magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2. the candidate would intrigue with the legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views. 3. the ministers of foreign powers would have and would make use of, the opportunity to mix their intrigues & influence with the election. limited as the powers of the executive are, it will be an object of great moment with the great rival powers of europe who have american possessions, to have at the head of our governm^t a man attached to their respective politics & interests. no pains, nor perhaps expence, will be spared, to gain from the legislature an appointm^t favorable to their wishes. germany & poland are witnesses of this danger. in the former, the election of the head of the empire, till it became in a manner hereditary, interested all europe, and was much influenced by foreign interference. in the latter, altho' the elective magistrate has very little real power, his election has at all times produced the most eager interference of foreign princes, and has in fact at length slid entirely into foreign hands. the existing authorities in the states are the legislative, executive & judiciary. the appointment of the nat^l executive by the first was objectionable in many points of view, some of which had been already mentioned. he would mention one which of itself would decide his opinion. the legislatures of the states had betrayed a strong propensity to a variety of pernicious measures. one object of the nat^l legisl^{re} was to controul this propensity. one object of the nat^l executive, so far as it would have a negative on the laws, was to controul the nat^l legislature so far as it might be infected with a similar propensity. refer the appointm^t of the nat^l executive to the state legislatures, and this controuling purpose may be defeated. the legislatures can & will act with some kind of regular plan, and will promote the appointm^t of a man who will not oppose himself to a favorite object. should a majority of the legislatures at the time of election have the same object, or different objects of the same kind, the nat^l executive would be rendered subservient to them.--an appointment by the state executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the candidates, by their partizans, and by the ministers of foreign powers. the state judiciary had not & he presumed w^d not be proposed as a proper source of appointment. the option before us then lay between an appointment by electors chosen by the people--and an immediate appointment by the people. he thought the former mode free from many of the objections which had been urged ag^{st} it, and greatly preferable to an appointment by the nat^l legislature. as the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption. as a further precaution, it might be required that they should meet at some place, distinct from the seat of gov^t and even that no person within a certain distance of the place at the time sh^d be eligible. this mode however had been rejected so recently & by so great a majority that it probably would not be proposed anew. the remaining mode was an election by the people or rather by the qualified part of them, at large: with all its imperfections he liked this best. he would not repeat either the general argum^{ts}. for or the objections ag^{st} this mode. he would only take notice of two difficulties which he admitted to have weight. the first arose from the disposition in the people to prefer a citizen of their own state, and the disadvantage this w^d throw on the smaller states. great as this objection might be he did not think it equal to such as lay ag^{st} every other mode which had been proposed. he thought too that some expedient might be hit upon that would obviate it. the second difficulty arose from the disproportion of qualified voters in the n. & s. states, and the disadvantages which this mode would throw on the latter. the answer to this objection was 1. that this disproportion would be continually decreasing under the influence of the republican laws introduced in the s. states, and the more rapid increase of their population. 2. that local considerations must give way to the general interest. as an individual from the s. states, he was willing to make the sacrifice. m^r elseworth. the objection drawn from the different sizes of the states, is unanswerable. the citizens of the largest states would invariably prefer the candidate within the state; and the largest states w^d invariably have the man. question on m^r elseworth's motion as above. n. h. ay. mass. no. c^t ay. n. j. no. p^a ay. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r pinkney moved that the election by the legislature be qualified with a proviso that no person be eligible for more than 6 years in any twelve years. he thought this would have all the advantage & at the same time avoid in some degree the inconveniency, of an absolute ineligibility a 2^d time. col. mason approved the idea. it had the sanction of experience in the instance of cong^s and some of the executives of the states. it rendered the executive as effectually independent, as an ineligibility after his first election, and opened the way at the same time for the advantage of his future services. he preferred on the whole the election by the nat^l legislature: tho' candor obliged him to admit, that there was great danger of foreign influence, as had been suggested. this was the most serious objection with him that had been urged. m^r butler. the two great evils to be avoided are cabal at home, & influence from abroad. it will be difficult to avoid either if the election be made by the nat^l legislature. on the other hand. the gov^t should not be made so complex & unwieldy as to disgust the states. this would be the case, if the election sh^d be referred to the people. he liked best an election by electors chosen by the legislatures of the states. he was ag^{st} a re-eligibility at all events. he was also ag^{st} a ratio of votes in the states. an equality should prevail in this case. the reasons for departing from it do not hold in the case of the executive as in that of the legislature. m^r gerry approved of m^r pinkney's motion as lessening the evil. m^r gov^r morris was ag^{st} a rotation in every case. it formed a political school, in w^{ch} we were always governed by the scholars, and not by the masters. the evils to be guarded ag^{st} in this case are. 1. the undue influence of the legislature. 2. instability of councils. 3. misconduct in office. to guard ag^{st} the first, we run into the second evil. we adopt a rotation which produces instability of councils. to avoid sylla we fall into charibdis. a change of men is ever followed by a change of measures. we see this fully exemplified in the vicissitudes among ourselves, particularly in the state of pen^a. the self-sufficiency of a victorious party scorns to tread in the paths of their predecessors. rehoboam will not imitate soloman. 2. the rotation in office will not prevent intrigue and dependence on the legislature. the man in office will look forward to the period at which he will become re-eligible. the distance of the period, the improbability of such a protraction of his life will be no obstacle. such is the nature of man, formed by his benevolent author no doubt for wise ends, that altho' he knows his existence to be limited to a span, he takes his measures as if he were to live for ever. but taking another supposition, the inefficacy of the expedient will be manifest. if the magistrate does not look forward to his re-election to the executive, he will be pretty sure to keep in view the opportunity of his going into the legislature itself. he will have little objection then to an extension of power on a theatre where he expects to act a distinguished part; and will be very unwilling to take any step that may endanger his popularity with the legislature, on his influence over which the figure he is to make will depend. 3. to avoid the third evil, impeachments will be essential. and hence an additional reason ag^{st} an election by the legislature. he considered an election by the people as the best, by the legislature as the worst, mode. putting both these aside, he could not but favor the idea of m^r wilson, of introducing a mixture of lot. it will diminish, if not destroy both cabal & dependence. m^r williamson was sensible that strong objections lay ag^{st} an election of the executive by the legislature, and that it opened a door for foreign influence. the principal objection ag^{st} an election by the people seemed to be, the disadvantage under which it would place the smaller states. he suggested as a cure for this difficulty, that each man should vote for 3 candidates, one of them he observed would be probably of his own state, the other 2. of some other states; and as probably of a small as a large one. m^r gov^r morris liked the idea, suggesting as an amendment that each man should vote for two persons one of whom at least should not be of his own state. m^r madison also thought something valuable might be made of the suggestion with the proposed amendment of it. the second best man in this case would probably be the first, in fact. the only objection which occurred was that each citizen after hav^g given his vote for his favorite fellow citizen, w^d throw away his second on some obscure citizen of another state, in order to ensure the object of his first choice. but it could hardly be supposed that the citizens of many states would be so sanguine of having their favorite elected, as not to give their second vote with sincerity to the next object of their choice. it might moreover be provided in favor of the smaller states that the executive should not be eligible more than ---times in ---years from the same state. m^r gerry. a popular election in this case is radically vicious. the ignorance of the people would put it in the power of some one set of men dispersed through the union & acting in concert to delude them into any appointment. he observed that such a society of men existed in the order of the cincinnati. they are respectable, united, and influential. they will in fact elect the chief magistrate in every instance, if the election be referred to the people. his respect for the characters composing this society could not blind him to the danger & impropriety of throwing such a power into their hands. m^r dickinson. as far as he could judge from the discussions which had taken place during his attendance, insuperable objections lay ag^{st} an election of the executive by the nat^l legislature; as also by the legislatures or executives of the states. he had long leaned towards an election by the people which he regarded as the best & purest source. objections he was aware lay ag^{st} this mode, but not so great he thought as ag^{st} the other modes. the greatest difficulty in the opinion of the house seemed to arise from the partiality of the states to their respective citizens. but might not this very partiality be turned to a useful purpose. let the people of each state chuse its best citizen. the people will know the most eminent characters of their own states, and the people of different states will feel an emulation in selecting those of which they will have the greatest reason to be proud. out of the thirteen names thus selected, an executive magistrate may be chosen either by the nat^l legislature, or by electors appointed by it. on a question which was moved for postponing m^r pinkney's motion, in order to make way for some such proposition as had been hinted by m^r williamson & others, it passed in the negative. n. h. no. mass. no. c^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. on m^r pinkney's motion that no person shall serve in the executive more than 6 years in 12. years, it passed in the negative. n. h. ay. mass. ay. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. on a motion that the members of the committee be furnished with copies of the proceedings it was so determined; s. carolina alone being in the negative. it was then moved that the members of the house might take copies of the resolutions which had been agreed to; which passed in the negative. n. h. no. mas. no. con. ay. n. j. ay. p^a no. del. ay. mary^d no. v^a ay. n. c. ay. s. c. no. geo. no. m^r gerry & m^r butler moved to refer the resolution relating to the executive (except the clause making it consist of a single person) to the co[~m]ittee of detail. m^r wilson hoped that so important a branch of the system w^d not be committed untill a general principle sh^d be fixed by a vote of the house. m^r langdon. was for the commitment--adj^d. thursday july. 26. in convention.[12] [12] "the affairs of the federal government are, i believe, in the utmost confusion: the convention is an expedient that will produce a decisive effect. it will either recover us from our present embarrassments or complete our ruin; for i do suspect that if what they recommend sho^d be rejected this wo^d be the case. but i trust that the presence of gen^l washington will have great weight in the body itself so as to overawe & keep under the demon of party, & that the signature of his name to whatever act shall be the result of their deliberations will secure its passage thro' the union."--monroe to jefferson, july 27, 1787 (_writings of monroe_, i., 173). col. mason. in every stage of the question relative to the executive, the difficulty of the subject and the diversity of the opinions concerning it have appeared. nor have any of the modes of constituting that department been satisfactory. 1. it has been proposed that the election should be made by the people at large; that is that an act which ought to be performed by those who know most of eminent characters, & qualifications, should be performed by those who know least. 2. that the election should be made by the legislatures of the states. 3. by the executives of the states. ag^{st} these modes also strong objections have been urged. 4. it has been proposed that the election should be made by electors chosen by the people for that purpose. this was at first agreed to: but on further consideration has been rejected. 5. since which, the mode of m^r williamson, requiring each freeholder to vote for several candidates has been proposed. this seemed like many other propositions, to carry a plausible face, but on closer inspection is liable to fatal objections. a popular election in any form, as m^r gerry has observed, would throw the appointment into the hands of the cincinnati, a society for the members of which he had a great respect, but which he never wished to have a preponderating influence in the gov^t. 6. another expedient was proposed by m^r dickinson, which is liable to so palpable & material an inconvenience that he had little doubt of its being by this time rejected by himself. it would exclude every man who happened not to be popular within his own state; tho' the causes of his local unpopularity might be of such a nature as to recommend him to the states at large. 7. among other expedients, a lottery has been introduced. but as the tickets do not appear to be in much demand, it will probably, not be carried on, and nothing therefore need be said on that subject. after reviewing all these various modes, he was led to conclude, that an election by the nat^l legislature as originally proposed, was the best. if it was liable to objections, it was liable to fewer than any other. he conceived at the same time that a second election ought to be absolutely prohibited. having for his primary object for the pole-star of his political conduct, the preservation of the rights of the people, he held it as an essential point, as the very palladium of civil liberty, that the great officers of state, and particularly the executive should at fixed periods return to that mass from which they were at first taken, in order that they may feel & respect those rights & interests, which are again to be personally valuable to them. he concluded with moving that the constitution of the executive as reported by the com^e of the whole be reinstated, viz. "that the executive be appointed for seven years, & be ineligible a 2^d time." m^r davie seconded the motion. doc^r franklin. it seems to have been imagined by some that the returning to the mass of the people was degrading the magistrate. this he thought was contrary to republican principles. in free governments the rulers are the servants, and the people their superiors & sovereigns. for the former therefore to return among the latter was not to _degrade_ but to _promote_ them. and it would be imposing an unreasonable burden on them, to keep them always in a state of servitude, and not allow them to become again one of the masters. question on col. masons motion as above; which passed in the affirmative n. h. ay. mass^{ts} not on floor. c^t no. n. j. ay. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gov^r morris was now ag^{st} the whole paragraph. in answer to col. mason's position that a periodical return of the great officers of the state into the mass of the people, was the palladium of civil liberty he w^d observe that on the same principle the judiciary ought to be periodically degraded; certain it was that the legislature ought on every principle, yet no one had proposed, or conceived that the members of it should not be re-eligible. in answer to doc^r franklin, that a return into the mass of the people would be a promotion, instead of a degradation, he had no doubt that our executive like most others would have too much patriotism to shrink from the burthen of his office, and too much modesty not to be willing to decline the promotion. on the question on the whole resolution as amended in the words following--"that a national executive be instituted--to consist of a single person--to be chosen by the nat^l legislature--for the term of seven years--to be ineligible a 2^d time--with power to carry into execution the nat^l laws--to appoint to offices in cases not otherwise provided for--to be removable on impeachment & conviction of mal-practice or neglect of duty--to receive a fixt compensation for the devotion of his time to the public service, to be paid out of the nat^l treasury"--it passed in the affirmative n. h. ay. mass. not on floor. c^t ay. n. j. ay. p^a no. del. no. m^d no. v^a div^d. m^r blair & col. mason ay. gen^l washington & m^r madison no. m^r randolph happened to be out of the house. n. c. ay. s. c. ay. geo. ay. m^r mason moved "that the co[~m]ittee of detail be instructed to receive a clause requiring certain qualifications of landed property & citizenship of the u. states, in members of the legislature, and disqualifying persons having unsettled acc^{ts} with or being indebted to the u. s., from being members of the nat^l legislature."--he observed that persons of the latter descriptions had frequently got into the state legislatures, in order to promote laws that might shelter their delinquencies; and that this evil had crept into cong^s if report was to be regarded. m^r pinckney seconded the motion. mr. gov^r morris. if qualifications are proper, he w^d prefer them in the electors rather than the elected. as to debtors of the u. s. they are but few. as to persons having unsettled accounts he believed them to be pretty many. he thought however that such a discrimination would be both odious & useless, and in many instances, unjust & cruel. the delay of settlem^t had been more the fault of the public than of the individuals. what will be done with those patriotic citizens who have lent money, or services or property to their country, without having been yet able to obtain a liquidation of their claims? are they to be excluded? m^r ghorum was for leaving to the legislature the providing ag^{st} such abuses as had been mentioned. col. mason mentioned the parliamentary qualifications adopted in the reign of queen anne, which he said had met with universal approbation. m^r madison had witnessed the zeal of men having acc^{ts} with the public, to get into the legislatures for sinister purposes. he thought however that if any precaution were taken for excluding them, the one proposed by col. mason ought to be new modelled. it might be well to limit the exclusion to persons who had rec^d money from the public, and had not accounted for it. m^r gov^r morris. it was a precept of great antiquity as well as of high authority that we should not be righteous overmuch. he thought we ought to be equally on our guard ag^{st} being wise overmuch. the proposed regulation would enable the govern^t to exclude particular persons from office as long as they pleased. he mentioned the case of the co[~m]ander in chief's presenting his account for secret services, which he said was so moderate that every one was astonished at it; and so simple that no doubt could arise on it. yet had the auditor been disposed to delay the settlement, how easily he might have effected it, & how cruel w^d it be in such a case to keep a distinguished & meritorious citizen under a temporary disability & disfranchisement. he mentioned this case merely to illustrate the objectionable nature of the proposition. he was opposed to such minutious regulations in a constitution. the parliamentary qualifications quoted by col. mason, had been disregarded in practice; and was but a scheme of the landed ag^{st} the monied interest. m^r pinckney & gen^l pinckney moved to insert by way of amendm^t the words judiciary & executive so as to extend the qualifications to those departments which was agreed to nem con. m^r gerry thought the inconveniency of excluding a few worthy individuals who might be public debtors or have unsettled acc^{ts} ought not to be put in the scale ag^{st} the public advantages of the regulation, and that the motion did not go far enough. m^r king observed that there might be great danger in requiring landed property as a qualification since it would exclude the monied interest, whose aids may be essential in particular emergencies to the public safety. m^r dickinson, was ag^{st} any recital of qualifications in the constitution. it was impossible to make a compleat one, and a partial one w^d by implication tie up the hands of the legislature from supplying the omissions. the best defence lay in the freeholders who were to elect the legislature. whilst this source should remain pure, the public interest would be safe. if it ever should be corrupt, no little expedients would repel the danger. he doubted the policy of interweaving into a republican constitution a veneration for wealth. he had always understood that a veneration for poverty & virtue, were the objects of republican encouragement. it seemed improper that any man of merit should be subjected to disabilities in a republic where merit was understood to form the great title to public trust, honors & rewards. m^r gerry if property be one object of government, provisions to secure it cannot be improper. m^r madison moved to strike out the word _landed_, before the word "qualifications." if the proposition s^d be agreed to he wished the committee to be at liberty to report the best criterion they could devise. landed possessions were no certain evidence of real wealth. many enjoyed them to a great extent who were more in debt than they were worth. the unjust laws of the states had proceeded more from this class of men, than any others. it had often happened that men who had acquired landed property on credit, got into the legislatures with a view of promoting an unjust protection ag^{st} their creditors. in the next place, if a small quantity of land should be made the standard, it would be no security; if a large one, it would exclude the proper representatives of those classes of citizens who were not landholders. it was politic as well as just that the interests & rights of every class should be duly represented & understood in the public councils. it was a provision every where established that the country should be divided into districts & representatives taken from each, in order that the legislative assembly might equally understand & sympathize with the rights of the people in every part of the community. it was not less proper that every class of citizens should have an opportunity of making their rights be felt & understood in the public councils. the three principal classes into which our citizens were divisible, were the landed the commercial, & the manufacturing. the 2^d & 3^d class, bear as yet a small proportion to the first. the proportion however will daily increase. we see in the populous countries in europe now, what we shall be hereafter. these classes understand much less of each others interests & affairs, than men of the same class inhabiting different districts. it is particularly requisite therefore that the interests of one or two of them should not be left entirely to the care, or impartiality of the third. this must be the case if landed qualifications should be required; few of the mercantile, & scarcely any of the manufacturing class chusing whilst they continue in business to turn any part of their stock into landed property. for these reasons he wished if it were possible that some other criterion than the mere possession of land should be devised. he concurred with m^r gov^r morris in thinking that qualifications in the electors would be much more effectual than in the elected. the former would discriminate between real & ostensible property in the latter; but he was aware of the difficulty of forming any uniform standard that would suit the different circumstances & opinions prevailing in the different states. m^r gov^r morris 2^{ded} the motion. on the question for striking out "landed" n. h. ay. mass. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. on question on 1^{st} part of col. masons proposition as to "qualification of property & citizenship," as so amended n. h. ay. mas^{ts} ay. c^t no. n. j. ay. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. "the 2^d part, for disqualifying debtors, and persons having unsettled accounts," being under consideration m^r carrol moved to strike out "having unsettled accounts" m^r ghorum seconded the motion; observing that it would put the commercial & manufacturing part of the people on a worse footing than others as they would be most likely to have dealings with the public. m^r l. martin, if these words should be struck out, and the remaining words concerning debtors retained, it will be the interest of the latter class to keep their accounts unsettled as long as possible. m^r wilson was for striking them out. they put too much power in the hands of the auditors, who might combine with rivals in delaying settlements in order to prolong the disqualifications of particular men. we should consider that we are providing a constitution for future generations, and not merely for the peculiar circumstances of the moment. the time has been, and will again be, when the public safety may depend on the voluntary aids of individuals which will necessarily open acc^{ts} with the public, and when such acc^{ts} will be a characteristic of patriotism. besides a partial enumeration of cases will disable the legislature from disqualifying odious & dangerous characters. m^r langdon[13] was for striking out the whole clause for the reasons given by m^r wilson. so many exclusions he thought too would render the system unacceptable to the people. [13] "m^r langdon is a man of considerable fortune, possesses a liberal mind, and a good plain understanding--about 40 years old."--pierce's notes, _am. hist. rev._, iii., 325. m^r gerry. if the argum^{ts} used today were to prevail, we might have a legislature composed of public debtors, pensioners, placemen & contractors. he thought the proposed qualifications would be pleasing to the people. they will be considered as a security ag^{st} unnecessary or undue burdens being imposed on them. he moved to add "pensioners" to the disqualified characters which was negatived. n. h. no. mas. ay. con. no. n. j. no. p^a no. del. no. mary^d ay. v^a no. n. c. divided. s. c. no. geo. ay. m^r gov^r morris. the last clause, relating to public debtors will exclude every importing merchant. revenue will be drawn it is foreseen as much as possible, from trade. duties of course will be bonded, and the merch^{ts} will remain debtors to the public. he repeated that it had not been so much the fault of individuals as of the public that transactions between them had not been more generally liquidated & adjusted. at all events to draw from our short & scanty experience rules that are to operate through succeeding ages, does not savour much of real wisdom. on question for striking out, "persons having unsettled accounts with the u. states." n. h. ay. mass. ay. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. m^r elseworth was for disagreeing to the remainder of the clause disqualifying public debtors; and for leaving to the wisdom of the legislature and the virtue of the citizens, the task of providing ag^{st} such evils. is the smallest as well as the largest debtor to be excluded? then every arrear of taxes will disqualify. besides how is it to be known to the people when they elect who are or are not public debtors. the exclusion of pensioners & placemen in engl^d is founded on a consideration not existing here. as persons of that sort are dependent on the crown, they tend to increase its influence. m^r pinkney s^d he was at first a friend to the proposition, for the sake of the clause relating to qualifications of property; but he disliked the exclusion of public debtors; it went too far. it w^d exclude persons who had purchased confiscated property or should purchase western territory of the public, and might be some obstacle to the sale of the latter. on the question for agreeing to the clause disqualifying public debtors n. h. no. mass. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. no. geo. ay. col. mason, observed that it would be proper, as he thought, that some provision should be made in the constitution ag^{st} choosing for the seat of the gen^l gov^t the city or place at which the seat of any state gov^t might be fixt. there were 2 objections ag^{st} having them at the same place, which without mentioning others, required some precaution on the subject. the 1^{st} was that it tended to produce disputes concerning jurisdiction. the 2^d & principal one was that the intermixture of the two legislatures tended to give a provincial tincture to y^e nat^l deliberations. he moved that the com^e be instructed to receive a clause to prevent the seat of the nat^l gov^t being in the same city or town with the seat of the gov^t of any state longer than untill the necessary public buildings could be erected. m^r alex. martin 2^{ded} the motion. m^r gov^r morris did not dislike the idea, but was apprehensive that such a clause might make enemies of philad^a & n. york which had expectations of becoming the seat of the gen^l gov^t. m^r langdon approved the idea also: but suggested the case of a state moving its seat of gov^t to the nat^l seat after the erection of the public buildings. m^r ghorum. the precaution may be evaded by the nat^l legisl^{re} by delaying to erect the public buildings. m^r gerry conceived it to be the gen^l sense of america, that neither the seat of a state gov^t nor any large commercial city should be the seat of the gen^l gov^t. m^r williamson liked the idea, but knowing how much the passions of men were agitated by this matter, was apprehensive of turning them ag^{st} the system. he apprehended also that an evasion, might be practised in the way hinted by m^r ghorum. m^r pinkney thought the seat of a state gov^t ought to be avoided; but that a large town or its vicinity would be proper for the seat of the gen^l gov^t. col. mason did not mean to press the motion at this time, nor to excite any hostile passions ag^{st} the system. he was content to withdraw the motion for the present. m^r butler was for fixing by the constitution the place, & a central one, for the seat of the nat^l gov^t. the proceedings since monday last were referred unanimously to the com^e of detail, and the convention then unanimously adjourned till monday, aug^{st} 6. that the com^e of detail might have time to prepare & report the constitution. the whole proceedings as referred are as follow[14]: [14] madison's note says: "here copy them from the journal p. 207." in the _journal_ they are given as having been "collected from the proceedings of the convention, as they are spread over the journal from june 19^{th} to july 26^{th}."--_journal of federal convention_, 207. the dates show when the resolutions were agreed to, and are correct. june 20. i. resolved, that the government of the united states ought to consist of a supreme legislative, judiciary, and executive. june 21. ii. resolved, that the legislature consist of two branches. iii. resolved, that the members of the first branch of the legislature ought to be elected by the people of the several states, for the term of two years; to be paid june 22. out of the publick treasury; to receive an adequate compensation for their services; to be of the age of june 23. twenty-five years at least; to be ineligible and incapable of holding any office under the authority of the united states (except those peculiarly belonging to the functions of the first branch) during the term of service of the first branch. june 25. iv. resolved, that the members of the second branch of the legislature of the united states ought to be chosen by the individual legislatures; to be of the age of june 26. thirty years at least; to hold their offices for six years, one third to go out biennally; to receive a compensation for the devotion of their time to the publick service; to be ineligible to and incapable of holding any office, under the authority of the united states (except those peculiarly belonging to the functions of the second branch) during the term for which they are elected, and for one year thereafter. v. resolved, that each branch ought to possess the right of originating acts. vi. resolved, that the national legislature ought to postponed 27. possess the legislative rights vested in congress by the july 16. confederation; and moreover, to legislate in all cases for the general interests of the union, and also in july 17. those to which the states are separately incompetent, or in which the harmony of the united states may be interrupted by the exercise of individual legislation. vii. resolved, that the legislative acts of the united states, made by virtue and in pursuance of the articles of union, and all treaties made and ratified under the authority of the united states, shall be the supreme law of the respective states, as far as those acts or treaties shall relate to the said states, or their july 17 citizens and inhabitants; and that the judiciaries of the several states shall be bound thereby in their decisions, any thing in the respective laws of the individual states to the contrary, notwithstanding. july 16. viii. resolved, that in the original formation of the legislature of the united states, the first branch thereof shall consist of sixty-five members; of which number new hampshire shall send three, massachusetts eight, rhode island one, connecticut five, new york six, new jersey four, pennsylvania eight, delaware one, maryland six, virginia ten, north carolina five, south carolina five, georgia three. but as the present situation of the states may probably alter in the number of their inhabitants, the legislature of the united states shall be authorized, from time to time, to apportion the number of representatives; and in case any of the states shall hereafter be divided, or enlarged by addition of territory, or any two or more states united, or any new states created within the limits of the united states, the legislature of the united states shall possess authority to regulate the number of representatives, in any of the foregoing cases, upon the principle of their number of inhabitants according to the provisions hereafter mentioned, namely--provided always, that representation ought to be proportioned to direct taxation. and in order to ascertain the alteration in the direct taxation, which may be required from time to time by the changes in the relative circumstances of the states- ix. resolved, that a census be taken within six years from the first meeting of the legislature of the united states, and once within the term of every ten years afterwards, of all the inhabitants of the united states, in the manner and according to the ratio recommended by congress in their resolution of april 18, 1783; and that the legislature of the united states shall proportion the direct taxation accordingly. x. resolved, that all bills for raising or appropriating money, and for fixing the salaries of the officers of the government of the united states, shall originate in the first branch of the legislature of the united states, and shall not be altered or amended by the second branch; and that no money shall be drawn from the publick treasury, but in pursuance of appropriations to be originated by the first branch. xi. resolved, that in the second branch of the legislature of the united states, each state shall have an equal vote. july 26. xii. resolved, that a national executive be instituted, to consist of a single person; to be chosen by the national legislature, for the term of seven years; to be ineligible a second time; with power to carry into execution the national laws; to appoint to offices in cases not otherwise provided for; to be removable on impeachment, and conviction of mal-practice or neglect of duty; to receive a fixed compensation for the devotion of his time to the publick service; to be paid out of the publick treasury. july 21. xiii. resolved, that the national executive shall have a right to negative any legislative act, which shall not be afterwards passed, unless by two third parts of each branch of the national legislature. july 18. xiv. resolved, that a national judiciary be established, to consist of one supreme tribunal, the judges of which july 21. shall be appointed by the second branch of the national july 18. legislature; to hold their offices during good behaviour; to receive punctually, at stated times, a fixed compensation for their services, in which no diminution shall be made, so as to affect the persons actually in office at the time of such diminution. xv. resolved, that the national legislature be empowered to appoint inferior tribunals. xvi. resolved, that the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature; and to such other questions as involve the national peace and harmony. xvii. resolved, that provision ought to be made for the admission of states lawfully arising within the limits of the united states, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole. xviii. resolved, that a republican form of government shall be guarantied to each state; and that each state shall be protected against foreign and domestick violence. july 23. xix. resolved, that provision ought to be made for the amendment of the articles of union, whensoever it shall seem necessary. xx. resolved, that the legislative, executive, and judiciary powers within the several states, and of the national government, ought to be bound, by oath, to support the articles of union. xxi. resolved, that the amendments which shall be offered to the confederation by the convention ought, at a proper time or times after the approbation of congress, to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people to consider and decide thereon. xxii. resolved, that the representation in the second branch of the legislature of the united states consist of two members from each state, who shall vote per capita. july 26. xxiii. resolved, that it be an instruction to the committee, to whom were referred the proceedings of the convention for the establishment of a national government, to receive a clause or clauses, requiring certain qualifications of property and citizenship, in the united states, for the executive, the judiciary, and the members of both branches of the legislature of the united states. with the above resolutions were referred the propositions offered by m^r c. pinckney on the 29^{th} of may, & by m^r patterson on the 15^{th} of june.[15] [15] "aug 1. 1787 williamsb. "dear col. "we are here & i believe every where all impatience to know something of your conventional deliberations. if you cannot tell us what you are doing, you might at least give us some information of what you are not doing. this w^d afford food for political conjecture, and perhaps be sufficient to satisfy present impatience. i hope you have already discovered the means of preserving the american empire united--& that the scheme of a disunion has been found pregnant with y^e greatest evils--but we are not at this distance able to judge with any accuracy upon subjects so truly important & interesting as those w^{ch} must engage you at present--we can only hope, that you will all resemble cã¦sar, at least in one particular: 'nil actum reputans si quid superesset agendum';--& that your exertions will be commensurate to y^e great expectations w^{ch} have been formed... "j. madison."[a] [a] president of william and mary college, and the first bishop of the episcopal church in virginia. he was a second cousin of james madison, of orange. (mad. mss.) "richmond aug^t 5. 87. "dear sir, "i am much obliged to you for your communication of the proceedings of y^e convention, since i left them; for i feel that anxiety about y^e result, which it's importance must give to every honest citizen. if i thought that my return could contribute in the smallest degree to it's improvement, nothing should keep me away. but as i know that the talents, knowledge, & well-established character, of our present delegates have justly inspired the country with y^e most entire confidence in their determinations; & that my vote could only _operate_ to produce a division, & so destroy y^e vote of y^e state, i think that my attendance now would certainly be useless, perhaps injurious. "i am credibly inform'd that m^r henry has openly express'd his disapprobation of the circular letter of congress, respecting y^e payment of british debts; & that he has declared his opinion that y^e interests of this state cannot safely be trusted with that body. the doctrine of three confederacies, or great republics, has its advocates here. i have heard hervie support it, along with y^e extinction of state legislatures within each great department. the necessity of some independent power to controul the assembly by a negative, seems now to be admitted by y^e most zealous republicans--they only differ about y^e mode of constituting such a power. b. randolph seems to think that a magistrate annually elected by y^e people might exercise such a controul as independently as y^e king of g. b. i hope that our representative, marshall, will be a powerful aid to mason in the next assembly. he has observ'd the actual depravation of mens manners, under y^e corrupting influence of our legislature; and is convinc'd that nothing but y^e adoption of some efficient plan from y^e convention can prevent anarchy first, & civil convulsions afterwards. m^r h----y has certainly converted a majority of prince edward, formerly y^e most averse to paper money, to y^e patronage of it.... "your friend & humble serv^t. "james mcclurg." (mad. mss.) monday august 6^{th}. in convention m^r john francis mercer from maryland took his seat. m^r rutlidge delivered in the report of the committee of detail as follows: a printed copy being at the same time furnished to each member[16]: [16] madison's printed copy is marked: "as reported by com^e of detail viz of five. aug. 6. 1787." it is a large folio of seven pages. in the enumeration of the articles by a misprint vi. was repeated, and the alterations in article vii. and succeeding articles were made by madison. in sect. ii of article vi., as it was printed, it appeared: "the enacting stile of the laws of the united states shall be. 'be it enacted and it is hereby enacted by the house of representatives, and by the senate of the united states, in congress assembled,'" which madison altered to read: "the enacting stile of the laws of the united states shall be. 'be it enacted by the senate & representatives, in congress assembled.'" the printed copy among the madison papers is a duplicate of the copy filed by general washington with the papers of the constitution, and sec. ii is there given as actually printed.--_journal of the federal convention_, 219. (const. mss.) madison accurately transcribed the report for his journal and it is this copy which is used in the text. "we the people of the states of new hampshire, massachusetts, rhode-island and providence plantations, connecticut, new york, new jersey, pennsylvania, delaware, maryland, virginia, north-carolina, south-carolina, and georgia, do ordain, declare, and establish the following constitution for the government of ourselves and our posterity. article i the stile of the government shall be, "the united states of america." ii the government shall consist of supreme legislative, executive, and judicial powers. iii the legislative power shall be vested in a congress, to consist of two separate and distinct bodies of men, a house of representatives and a senate; each of which shall in all cases have a negative on the other. the legislature shall meet on the first monday in december in every year. iv sect. 1. the members of the house of representatives shall be chosen every second year, by the people of the several states comprehended within this union. the qualifications of the electors shall be the same, from time to time, as those of the electors in the several states, of the most numerous branch of their own legislatures. sect. 2. every member of the house of representatives shall be of the age of twenty five years at least; shall have been a citizen in the united states for at least three years before his election; and shall be, at the time of his election, a resident of the state in which he shall be chosen. sect. 3. the house of representatives shall, at its first formation, and until the number of citizens and inhabitants shall be taken in the manner hereinafter described, consist of sixty-five members, of whom three shall be chosen in new-hampshire, eight in massachusetts, one in rhode-island and providence plantations, five in connecticut, six in new-york, four in new-jersey, eight in pennsylvania, one in delaware, six in maryland, ten in virginia, five in north-carolina, five in south-carolina, and three in georgia. sect. 4. as the proportions of numbers in different states will alter from time to time; as some of the states may hereafter be divided; as others may be enlarged by addition of territory; as two or more states may be united; as new states will be erected within the limits of the united states, the legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions herein after made, at the rate of one for every forty thousand. sect. 5. all bills for raising or appropriating money, and for fixing the salaries of the officers of government, shall originate in the house of representatives, and shall not be altered or amended by the senate. no money shall be drawn from the public treasury, but in pursuance of appropriations that shall originate in the house of representatives. sect. 6. the house of representatives shall have the sole power of impeachment. it shall choose its speaker and other officers. sect. 7. vacancies in the house of representatives shall be supplied by writs of election from the executive authority of the state, in the representation from which they shall happen. v sect. 1. the senate of the united states shall be chosen by the legislatures of the several states. each legislature shall chuse two members. vacancies may be supplied by the executive until the next meeting of the legislature. each member shall have one vote. sect. 2. the senators shall be chosen for six years; but immediately after the first election they shall be divided, by lot, into three classes, as nearly as may be, numbered one, two and three. the seats of the members of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, of the third class at the expiration of the sixth year, so that a third part of the members may be chosen every second year. sect. 3. every member of the senate shall be of the age of thirty years at least; shall have been a citizen in the united states for at least four years before his election; and shall be, at the time of his election, a resident of the state for which he shall be chosen. sect. 4. the senate shall chuse its own president and other officers. vi sect. 1. the times and places and manner of holding the elections of the members of each house shall be prescribed by the legislature of each state; but their provisions concerning them may, at any time, be altered by the legislature of the united states. sect. 2. the legislature of the united states shall have authority to establish such uniform qualifications of the members of each house, with regard to property, as to the said legislature shall seem expedient. sect. 3. in each house a majority of the members shall constitute a quorum to do business; but a smaller number may adjourn from day to day. sect. 4. each house shall be the judge of the elections, returns and qualifications of its own members. sect. 5. freedom of speech and debate in the legislature shall not be impeached or questioned in any court or place out of the legislature; and the members of each house shall, in all cases, except treason felony and breach of the peace, be privileged from arrest during their attendance at congress, and in going to and returning from it. sect. 6. each house may determine the rules of its proceedings; may punish its members for disorderly behaviour; and may expel a member. sect. 7. the house of representatives, and the senate, when it shall be acting in a legislative capacity, shall keep a journal of their proceedings, and shall, from time to time, publish them: and the yeas and nays of the members of each house, on any question, shall at the desire of one-fifth part of the members present, be entered on the journal. sect. 8. neither house, without the consent of the other, shall adjourn for more than three days, nor to any other place than that at which the two houses are sitting. but this regulation shall not extend to the senate, when it shall exercise the powers mentioned in the ---article. sect. 9. the members of each house shall be ineligible to, and incapable of holding any office under the authority of the united states, during the time for which they shall respectively be elected: and the members of the senate shall be ineligible to, and incapable of holding any such office for one year afterwards. sect. 10. the members of each house shall receive a compensation for their services, to be ascertained and paid by the state, in which they shall be chosen. sect. 11. the enacting stile of the laws of the united states shall be, "be it enacted by the senate and representatives in congress assembled." sect. 12. each house shall possess the right of originating bills, except in the cases beforementioned. sect. 13. every bill, which shall have passed the house of representatives and the senate, shall, before it become a law, be presented to the president of the united states for his revision: if, upon such revision, he approve of it, he shall signify his approbation by signing it: but if, upon such revision, it shall appear to him improper for being passed into a law, he shall return it, together with his objections against it, to that house in which it shall have originated, who shall enter the objections at large on their journal and proceed to reconsider the bill. but if after such reconsideration, two thirds of that house shall, notwithstanding the objections of the president, agree to pass it, it shall together with his objections, be sent to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of the other house also, it shall become a law. but in all such cases, the votes of both houses shall be determined by yeas and nays; and the names of the persons voting for or against the bill shall be entered on the journal of each house respectively. if any bill shall not be returned by the president within seven days after it shall have been presented to him, it shall be a law, unless the legislature, by their adjournment, prevent its return; in which case it shall not be a law. vii sect. 1. the legislature of the united states shall have the power to lay and collect taxes, duties, imposts and excises; to regulate commerce with foreign nations, and among the several states; to establish an uniform rule of naturalization throughout the united states; to coin money; to regulate the value of foreign coin; to fix the standard of weights and measures; to establish post-offices; to borrow money, and emit bills on the credit of the united states; to appoint a treasurer by ballot; to constitute tribunals inferior to the supreme court; to make rules concerning captures on land and water; to declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the united states, and of offences against the law of nations; to subdue a rebellion in any state, on the application of its legislature; to make war; to raise armies; to build and equip fleets; to call forth the aid of the militia, in order to execute the laws of the union, enforce treaties, suppress insurrections, and repel invasions; and to make all laws that 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; sect. 2. treason against the united states shall consist only in levying war against the united states, or any of them; and in adhering to the enemies of the united states, or any of them. the legislature of the united states shall have power to declare the punishment of treason. no person shall be convicted of treason, unless on the testimony of two witnesses. no attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted. sect. 3. the proportions of direct taxation shall be regulated by the whole number of white and other free citizens and inhabitants, of every age, sex and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, (except indians not paying taxes) which number shall, within six years after the first meeting of the legislature, and within the term of every ten years afterwards, be taken in such manner as the said legislature shall direct. sect. 4. no tax or duty shall be laid by the legislature on articles exported from any state; nor on the migration or importation of such persons as the several states shall think proper to admit; nor shall such migration or importation be prohibited. sect. 5. no capitation tax shall be laid, unless in proportion to the census hereinbefore directed to be taken. sect. 6. no navigation act shall be passed without the assent of two thirds of the members present in each house. sect. 7. the united states shall not grant any title of nobility. viii the acts of the legislature of the united states made in pursuance of this constitution, and all treaties made under the authority of the united states shall be the supreme law of the several states, and of the citizens and inhabitants; and the judges in the several states shall be bound thereby in their decisions; any thing in the constitutions or laws of the several states to the contrary notwithstanding. ix sect 1. the senate of the united states shall have power to make treaties, and to appoint ambassadors, and judges of the supreme court. sect. 2. in all disputes and controversies now subsisting, or that may hereafter subsist between two or more states, respecting jurisdiction or territory, the senate shall possess the following powers. whenever the legislature, or the executive authority, or lawful agent of any state, in controversy with another, shall by memorial to the senate, state the matter in question, and apply for a hearing; notice of such memorial and application shall be given by order of the senate, to the legislature or the executive authority of the other state in controversy. the senate shall also assign a day for the appearance of the parties, by their agents, before the house. the agents shall be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question. but if the agents cannot agree, the senate shall name three persons out of each of the several states; and from the list of such persons each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as the senate shall direct, shall in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them shall be commissioners or judges to hear and finally determine the controversy; provided a majority of the judges, who shall hear the cause, agree in the determination. if either party shall neglect to attend at the day assigned, without shewing sufficient reasons for not attending, or being present shall refuse to strike, the senate shall proceed to nominate three persons out of each state, and the clerk of the senate shall strike in behalf of the party absent or refusing. if any of the parties shall refuse to submit to the authority of such court; or shall not appear to prosecute or defend their claim or cause, the court shall nevertheless proceed to pronounce judgment. the judgment shall be final and conclusive. the proceedings shall be transmitted to the president of the senate, and shall be lodged among the public records for the security of the parties concerned. every commissioner shall, before he sit in judgment, take an oath, to be administered by one of the judges of the supreme or superior court of the state where the cause shall be tried, "well and truly to hear and determine the matter in question according to the best of his judgment, without favor, affection, or hope of reward." sect. 3. all controversies concerning lands claimed under different grants of two or more states, whose jurisdictions, as they respect such lands, shall have been decided or adjusted subsequent to such grants, or any of them, shall, on application to the senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding controversies between different states. x sect. 1. the executive power of the united states shall be vested in a single person. his stile shall be, "the president of the united states of america;" and his title shall be, "his excellency." he shall be elected by ballot by the legislature. he shall hold his office during the term of seven years; but shall not be elected a second time. sect. 2. he shall, from time to time, give information to the legislature, of the state of the union: he may recommend to their consideration such measures as he shall judge necessary, and expedient: he may convene them on extraordinary occasions. in case of disagreement between the two houses, with regard to the time of adjournment, he may adjourn them to such time as he thinks proper: he shall take care that the laws of the united states be duly and faithfully executed: he shall commission all the officers of the united states; and shall appoint officers in all cases not otherwise provided for by this constitution. he shall receive ambassadors, and may correspond with the supreme executives of the several states. he shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment. he shall be commander in chief of the army and navy of the united states, and of the militia of the several states. he shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during his continuance in office. before he shall enter on the duties of his department, he shall take the following oath or affirmation, "i ---solemnly swear, (or affirm) that i will faithfully execute the office of president of the united states of america." he shall be removed from his office on impeachment by the house of representatives, and conviction in the supreme court, of treason, bribery, or corruption. in case of his removal as aforesaid, death, resignation, or disability to discharge the powers and duties of his office, the president of the senate shall exercise those powers and duties, until another president of the united states be chosen, or until the disability of the president be removed. xi sect. 1. the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as shall, when necessary, from time to time, be constituted by the legislature of the united states. sect. 2. the judges of the supreme court, and of the inferior courts, shall hold their offices during good behaviour. they shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. sect. 3. the jurisdiction of the supreme court shall extend to all cases arising under laws passed by the legislature of the united states; to all cases affecting ambassadors, other public ministers and consuls; to the trial of impeachments of officers of the united states; to all cases of admiralty and maritime jurisdiction; to controversies between two or more states, (except such as shall regard territory or jurisdiction) between a state and citizens of another state, between citizens of different states, and between a state or the citizens thereof and foreign states, citizens or subjects. in cases of impeachment, cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, this jurisdiction shall be original. in all the other cases beforementioned, it shall be appellate, with such exceptions and under such regulations as the legislature shall make. the legislature may assign any part of the jurisdiction abovementioned (except the trial of the president of the united states) in the manner, and under the limitations which it shall think proper, to such inferior courts, as it shall constitute from time to time. sect. 4. the trial of all criminal offences (except in cases of impeachments) shall be in the state where they shall be committed; and shall be by jury. sect. 5. judgment, in cases of impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit, under the united states. but the party convicted shall, nevertheless be liable and subject to indictment, trial, judgment and punishment according to law. xii no state shall coin money; nor grant letters of marque and reprisal; nor enter into any treaty, alliance, or confederation; nor grant any title of nobility. xiii no state, without the consent of the legislature of the united states, shall emit bills of credit, or make any thing but specie a tender in payment of debts; nor lay imposts or duties on imports; nor keep troops or ships of war in time of peace; nor enter into any agreement or compact with another state, or with any foreign power; nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent, as not to admit of a delay, until the legislature of the united states can be consulted. xiv the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. xv any person charged with treason, felony or high misdemeanor in any state, who shall flee from justice, and shall be found in any other state, shall, on demand of the executive power of the state from which he fled, be delivered up and removed to the state having jurisdiction of the offence. xvi full faith shall be given in each state to the acts of the legislatures, and to the records and judicial proceedings of the courts and magistrates of every other state. xvii new states lawfully constituted or established within the limits of the united states may be admitted, by the legislature, into this government; but to such admission the consent of two thirds of the members present in each house shall be necessary. if a new state shall arise within the limits of any of the present states, the consent of the legislatures of such states shall be also necessary to its admission. if the admission be consented to, the new states shall be admitted on the same terms with the original states. but the legislature may make conditions with the new states, concerning the public debt which shall be then subsisting. xviii the united states shall guaranty to each state a republican form of government; and shall protect each state against foreign invasions, and, on the application of its legislature, against domestic violence. xix on the application of the legislatures of two thirds of the states in the union, for an amendment of this constitution, the legislature of the united states shall call a convention for that purpose. xx the members of the legislatures, and the executive and judicial officers of the united states, and of the several states, shall be bound by oath to support this constitution. xxi the ratification of the conventions of ---states shall be sufficient for organizing this constitution. xxii this constitution shall be laid before the united states in congress assembled, for their approbation; and it is the opinion of this convention, that it should be afterwards submitted to a convention chosen, under the recommendation of its legislature, in order to receive the ratification of such convention. xxiii to introduce this government, it is the opinion of this convention, that each assenting convention should notify its assent and ratification to the united states in congress assembled; that congress, after receiving the assent and ratification of the conventions of ---states, should appoint and publish a day, as early as may be, and appoint a place, for commencing proceedings under this constitution; that after such publication, the legislatures of the several states should elect members of the senate, and direct the election of members of the house of representatives; and that the members of the legislature should meet at the time and place assigned by congress, and should, as soon as may be, after their meeting, choose the president of the united states, and proceed to execute this constitution. a motion was made to adjourn till wednesday, in order to give leisure to examine the report; which passed in the negative- n. h. no. mas. no. c^t no. p^a ay. m^d ay. virg. ay. n. c. no. s. c. no. the house then adjourned till to-morrow 11 oc. tuesday august 7.[17] in convention [17] although the secrecy of the proceedings was guarded carefully, the reason of the long adjournment was generally known outside of the convention. "the convention adjourned about three weeks ago and appointed a committee consisting of m^r rutlege, m^r randolph, m^r wilson, m^r elsworth, & m^r gorham to draw into form the measures which had been agreed upon--they reassembled last monday sen'night to receive the report--i suppose we shall have the result of this great business in a few weeks more."--edward carrington to monroe, august 7, 1787. monroe mss. _cf._ king's account of the debate confirming the accuracy of madison's report (king's _life and correspondence of rufus king_, i., 617). the report of the committee of detail being taken up, m^r pinkney moved that it be referred to a committee of the whole. this was strongly opposed by m^r ghorum & several others, as likely to produce unnecessary delay; and was negatived, delaware mary^d & virg^a only being in the affirmative. the preamble of the report was agreed to nem. con. so were art: i & ii. art: iii considered. col. mason doubted the propriety of giving each branch a negative on the other "in all cases." there were some cases in which it was he supposed not intended to be given as in the case of balloting for appointments. m^r gov^r morris moved to insert "legislative acts" instead of "all cases." m^r williamson 2^{ds} him. m^r sherman. this will restrain the operation of the clause too much. it will particularly exclude a mutual negative in the case of ballots, which he hoped would take place. m^r ghorum contended that elections ought to be made by _joint ballot_. if separate ballots should be made for the president, and the two branches should be each attached to a favorite, great delay contention & confusion may ensue. these inconveniences have been felt in mas^{ts} in the election of officers of little importance compared with the executive of the u. states. the only objection ag^{st} a joint ballot is that it may deprive the senate of their due weight; but this ought not to prevail over the respect due to the public tranquility & welfare. m^r wilson was for a joint ballot in several cases at least; particularly in the choice of the president, and was therefore for the amendment. disputes between the two houses during & concern^g the vacancy of the executive might have dangerous consequences. col. mason thought the amendment of m^r gov^r morris extended too far. treaties are in a subsequent part declared to be laws, they will therefore be subjected to a negative; altho' they are to be made as proposed by the senate alone. he proposed that the mutual negative should be restrained to "cases requiring the distinct assent" of the two houses. m^r gov^r morris thought this but a repetition of the same thing; the mutual negative and distinct assent, being equivalent expressions. treaties he thought were not laws. m^r madison moved to strike out the words each of which shall in all cases, have a negative on the other; the idea being sufficiently expressed in the preceding member of the article; vesting the "legislative power" in "distinct bodies," especially as the respective powers and mode of exercising them were fully delineated in a subsequent article. gen^l pinkney 2^{ded} the motion. on question for inserting legislative acts as moved by m^r gov^r morris n. h. ay. mas. ay. c^t ay. p^a ay. del. no. m^d no. v^a no. n. c. ay. s. c. no. geo. no. on question for agreeing to m^r m's motion to strike out &c.--- n. h. ay. mas. ay. c^t no. p^a ay. del. ay. m^d no. v^a ay. n. c. no. s. c. ay. geo. ay. m^r madison wished to know the reasons of the com^e for fixing by y^e constitution the time of meeting for the legislature; and suggested, that it be required only that one meeting at least should be held every year leaving the time to be fixed or varied by law. m^r gov^r morris moved to strike out the sentence. it was improper to tie down the legislature to a particular time, or even to require a meeting every year. the public business might not require it. m^r pinkney concurred with m^r madison. m^r ghorum. if the time be not fixed by the constitution, disputes will arise in the legislature; and the states will be at a loss to adjust thereto, the times of their elections. in the n. england states the annual time of meeting had been long fixed by their charters & constitutions, and no inconvenience had resulted. he thought it necessary that there should be one meeting at least every year as a check on the executive department. m^r elseworth was ag^{st} striking out the words. the legislature will not know till they are met whether the public interest required their meeting or not. he could see no impropriety in fixing the day, as the convention could judge of it as well as the legislature. m^r wilson thought on the whole it would be best to fix the day. m^r king could not think there would be a necessity for a meeting every year. a great vice in our system was that of legislating too much. the most numerous objects of legislation belong to the states. those of the nat^l legislature were but few. the chief of them were commerce & revenue. when these should be once settled alterations would be rarely necessary & easily made. m^r madison thought if the time of meeting should be fixed by a law it w^d be sufficiently fixed & there would be no difficulty then as had been suggested, on the part of the states in adjusting their elections to it. one consideration appeared to him to militate strongly ag^{st} fixing a time by the constitution. it might happen that the legislature might be called together by the public exigencies & finish their session but a short time before the annual period. in this case it would be extremely inconvenient to reassemble so quickly & without the least necessity. he thought one annual meeting ought to be required; but did not wish to make two unavoidable. col. mason thought the objections against fixing the time insuperable: but that an annual meeting ought to be required as essential to the preservation of the constitution. the extent of the country will supply business. and if it should not, the legislature, besides _legislative_, is to have _inquisitorial_ powers, which cannot safely be long kept in a state of suspension. m^r sherman was decided for fixing the time, as well as for frequent meetings of the legislative body. disputes and difficulties will arise between the two houses, & between both & the states, if the time be changeable--frequent meetings of parliament were required at the revolution in england as an essential safeguard of liberty. so also are annual meetings in most of the american charters & constitutions. there will be business eno' to require it. the western country, and the great extent and varying state of our affairs in general will supply objects. m^r randolph was ag^{st} fixing any day irrevocably; but as there was no provision made any where in the constitution for regulating the periods of meeting, and some precise time must be fixed, untill the legislature shall make provision, he could not agree to strike out the words altogether. instead of which he moved to add the words following--"unless a different day shall be appointed by law." m^r madison 2^{ded} the motion, & on the question n. h. no. mass. ay. c^t no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gov^r morris moved to strike out dec^r & insert may. it might frequently happen that our measures ought to be influenced by those in europe, which were generally planned during the winter and of which intelligence would arrive in the spring. m^r madison 2^{ded} the motion, he preferred may to dec^r because the latter would require the travelling to & from the seat of gov^t in the most inconvenient seasons of the year. m^r wilson. the winter is the most convenient season for business. m^r elseworth. the summer will interfere too much with private business, that of almost all the probable members of the legislature being more or less connected with agriculture. m^r randolph. the time is of no great moment now, as the legislature can vary it. on looking into the constitutions of the states, he found that the times of their elections with which the election of the nat^l representatives would no doubt be made to coincide, would suit better with dec^r than may. and it was advisable to render our innovations as little incommodious as possible. on the question for "may" instead of "dec^r" n. h. no. mass. no. c^t no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. m^r read moved to insert after the word "senate," the words, "subject to the negative to be hereafter provided." his object was to give an absolute negative to the executive--he considered this as so essential to the constitution, to the preservation of liberty, & to the public welfare, that his duty compelled him to make the motion. m^r gov^r morris 2^{ded} him. and on the question n. h. no. mass. no. c^t no. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r rutlidge. altho' it is agreed on all hands that an annual meeting of the legislature should be made necessary, yet that point seems not to be free from doubt as the clause stands. on this suggestion, "once at least in every year," were inserted, nem. con. art. iii with the foregoing alterations was ag^d to nem. con., and is as follows: "the legislative power shall be vested in a congress to consist of 2 separate & distinct bodies of men; a house of rep^s & a senate. the legislature shall meet at least once in every year, and such meeting shall be on the 1^{st} monday in dec^r unless a different day shall be appointed by law." "article iv. sect. 1. taken up." m^r gov^r morris moved to strike out the last member of the section beginning with the words "qualifications of electors," in order that some other provision might be substituted which w^d restrain the right of suffrage to freeholders. m^r fitzsimons 2^{ded} the motion. m^r williamson was opposed to it. m^r wilson. this part of the report was well considered by the committee, and he did not think it could be changed for the better. it was difficult to form any uniform rule of qualifications for all the states. unnecessary innovations he thought too should be avoided. it would be very hard & disagreeable for the same persons at the same time, to vote for representatives in the state legislature and to be excluded from a vote for those in the nat^l legislature. m^r gov^r morris. such a hardship would be neither great nor novel. the people are accustomed to it and not dissatisfied with it, in several of the states. in some the qualifications are different for the choice of the gov^r & representatives; in others for different houses of the legislature. another objection ag^{st} the clause as it stands is that it makes the qualifications of the nat^l legislature depend on the will of the states, which he thought not proper. m^r elseworth. thought the qualifications of the electors stood on the most proper footing. the right of suffrage was a tender point, and strongly guarded by most of the state constitutions. the people will not readily subscribe to the nat^l constitution if it should subject them to be disfranchised. the states are the best judges of the circumstances & temper of their own people. col. mason. the force of habit is certainly not attended to by those gentlemen who wish for innovations on this point. eight or nine states have extended the right of suffrage beyond the freeholders. what will the people there say, if they should be disfranchised. a power to alter the qualifications would be a dangerous power in the hands of the legislature. m^r butler. there is no right of which the people are more jealous than that of suffrage. abridgments of it tend to the same revolution as in holland where they have at length thrown all power into the hands of the senates, who fill up vacancies themselves, and form a rank aristocracy. m^r dickinson. had a very different idea of the tendency of vesting the right of suffrage in the freeholders of the country. he considered them as the best guardians of liberty; and the restriction of the right to them as a necessary defence ag^{st} the dangerous influence of those multitudes without property & without principle with which our country like all others, will in time abound. as to the unpopularity of the innovation it was in his opinion chimerical. the great mass of our citizens is composed at this time of freeholders, and will be pleased with it. m^r elseworth. how shall the freehold be defined? ought not every man who pays a tax, to vote for the representative who is to levy & dispose of his money? shall the wealthy merchants & manufacturers, who will bear a full share of the public burthens be not allowed a voice in the imposition of them. taxation & representation ought to go together. m^r gov^r morris. he had long learned not to be the dupe of words. the sound of aristocracy therefore had no effect on him. it was the thing, not the name, to which he was opposed, and one of his principal objections to the constitution as it is now before us, is that it threatens this country with an aristocracy. the aristocracy will grow out of the house of representatives. give the votes to people who have no property, and they will sell them to the rich who will be able to buy them. we should not confine our attention to the present moment. the time is not distant when this country will abound with mechanics & manufacturers who will receive their bread from their employers. will such men be the secure & faithful guardians of liberty? will they be the impregnable barrier ag^{st} aristocracy?--he was as little duped by the association of the words, "taxation & representation." the man who does not give his vote freely is not represented. it is the man who dictates the vote. children do not vote. why? because they want prudence, because they have no will of their own. the ignorant & the dependent can be as little trusted with the public interest. he did not conceive the difficulty of defining "freeholders" to be insuperable. still less that the restriction could be unpopular. 9/10 of the people are at present freeholders and these will certainly be pleased with it. as to merch^{ts}. &c. if they have wealth & value the right they can acquire it. if not they don't deserve it. col. mason. we all feel too strongly the remains of antient prejudices, and view things too much through a british medium. a freehold is the qualification in england, & hence it is imagined to be the only proper one. the true idea in his opinion was that every man having evidence of attachment to & permanent common interest with the society ought to share in all its rights & privileges. was this qualification restrained to freeholders? does no other kind of property but land evidence a common interest in the proprietor? does nothing besides property mark a permanent attachment. ought the merchant, the monied man, the parent of a number of children whose fortunes are to be pursued in his own country to be viewed as suspicious characters, and unworthy to be trusted with the common rights of their fellow citizens. m^r madison. the right of suffrage is certainly one of the fundamental articles of republican government, and ought not to be left to be regulated by the legislature. a gradual abridgment of this right has been the mode in which aristocracies have been built on the ruins of popular forms. whether the constitutional qualification ought to be a freehold, would with him depend much on the probable reception such a change would meet with in states where the right was now exercised by every description of people. in several of the states a freehold was now the qualification. viewing the subject in its merits alone, the freeholders of the country would be the safest depositories of republican liberty. in future times a great majority of the people will not only be without landed, but any other sort of property. these will either combine, under the influence of their common situation: in which case, the rights of property & the public liberty, will not be secure in their hands: or which is more probable, they will become the tools of opulence & ambition, in which case there will be equal danger on another side. the example of england has been misconceived (by col. mason.) a very small proportion of the representatives are there chosen by freeholders. the greatest part are chosen by the cities & boroughs, in many of which the qualification of suffrage is as low as it is in any one of the u. s. and it was in the boroughs & cities rather than the counties, that bribery most prevailed, & the influence of the crown on elections was most dangerously exerted.[18] [18] "note to speech of j. m. in convention of 1787, august 7^{th}.: "as appointments for the general government here contemplated will, in part, be made by the state gov^{ts}, all the citizens in states where the right of suffrage is not limited to the holders of property, will have an indirect share of representation in the general government. but this does not satisfy the fundamental principle that men cannot be justly bound by laws in making which they have no part. persons & property being both essential objects of government, the most that either can claim, is such a structure of it as will leave a reasonable security for the other. and the most obvious provision, of this double character, seems to be that of confining to the holders of property the object deemed least secure in popular gov^{ts} the right of suffrage for one of the two legislative branches. this is not without example among us, as well as other constitutional modifications, favouring the influence of property in the government. but the u. s. have not reached the stage of society in which conflicting feelings of the class with, and the class without property, have the operation natural to them in countries fully peopled. the most difficult of all political arrangements is that of so adjusting the claims of the two classes as to give security to each and to promote the welfare of all. the federal principle,--which enlarges the sphere of power without departing from the elective basis of it and controuls in various ways the propensity in small republics to rash measures & the facility of forming & executing them, will be found the best expedient yet tried for solving the problem."--madison's note. * * * * * "note to the speech of j. m. on the [7^{th}.] day of [august]. "these observations (in the speech of j. m. see debates in the convention of 1787, on the [7^{th}.] day of [august]) do not convey the speaker's more full & matured view of the subject, which is subjoined. he felt too much at the time the example of virginia. "the right of suffrage is a fundamental article in republican constitutions. the regulation of it is, at the same time, a task of peculiar delicacy. allow the right exclusively to property, and the rights of persons may be oppressed. the feudal polity, alone sufficiently proves it. extend it equally to all, and the rights of property, or the claims of justice, may be overruled by a majority without property or interested in measures of injustice. of this abundant proof is afforded by other popular gov^{ts} and is not without examples in our own, particularly in the laws impairing the obligation of contracts. "in civilized communities, property as well as personal rights is an essential object of the laws, which encourage industry by securing the enjoyment of its fruits; that industry from which property results, & that enjoyment which consists not merely in its immediate use, but in its posthumous destination to objects of choice and of kindred affection. "in a just & a free government, therefore, the rights both of property & of persons ought to be effectually guarded. will the former be so in case of a universal & equal suffrage? will the latter be so in case of a suffrage confined to the holders of property? "as the holders of property have at stake all the other rights common to those without property, they may be the more restrained from infringing, as well as the less tempted to infringe the rights of the latter. it is nevertheless certain, that there are various ways in which the rich may oppress the poor; in which property may oppress liberty; and that the world is filled with examples. it is necessary that the poor should have a defence against the danger. "on the other hand, the danger to the holders of property cannot be disguised, if they be undefended against a majority without property. bodies of men are not less swayed by interest than individuals, and are less controlled by the dread of reproach and the other motives felt by individuals. hence the liability of the rights of property, and of the impartiality of laws affecting it, to be violated by legislative majorities having an interest real or supposed in the injustice: hence agrarian laws, and other leveling schemes: hence the cancelling or evading of debts, and other violations of contracts. we must not shut our eyes to the nature of man, nor to the light of experience. who would rely on a fair decision from three individuals if two had an interest in the case opposed to the rights of the third? make the number as great as you please, the impartiality will not be increased; nor any further security against injustice be obtained, than what may result from the greater difficulty of uniting the wills of a greater number. "in all gov^{ts} there is a power which is capable of oppressive exercise. in monarchies and aristocracies oppression proceeds from a want of sympathy & responsibility in the gov^t towards the people. in popular governments the danger lies in an undue sympathy among individuals composing a majority, and a want of responsibility in the majority to the minority. the characteristic excellence of the political system of the u. s. arises from a distribution and organization of its powers, which at the same time that they secure the dependence of the gov^t on the will of the nation, provides better guards than are found in any other popular gov^t against interested combinations of a majority against the rights of a minority. "the u. states have a precious advantage also in the actual distribution of property particularly the landed property; and in the universal hope of acquiring property. this latter peculiarity is among the happiest contrasts in their situation to that of the old world, where no anticipated change in this respect, can generally inspire a like sympathy with the rights of property. there may be at present, a majority of the nation, who are even freeholders, or the heirs or aspirants to freeholds. and the day may not be very near when such will cease to make up a majority of the community. but they cannot always so continue. with every admissible subdivision of the arable lands, a populousness not greater than that of england or france will reduce the holders to a minority. and whenever the majority shall be without landed or other equivalent property and without the means or hope of acquiring it, what is to secure the rights of property ag^{st} the danger from an equality & universality of suffrage, vesting compleat power over property in hands without a share in it: not to speak of a danger in the meantime from a dependence of an increasing number on the wealth of a few? in other countries this dependence results in some from the relations between landlords & tenants in others both from that source & from the relations between wealthy capitalists and indigent labourers. in the u. s. the occurrence must happen from the last source; from the connection between the great capitalists in manufactures & commerce and the numbers employed by them. nor will accumulations of capital for a certain time be precluded by our laws of descent & of distribution; such being the enterprise inspired by free institutions, that great wealth in the hands of individuals and associations may not be unfrequent. but it may be observed, that the opportunities may be diminished, and the permanency defeated by the equalizing tendency of our laws. "no free country has ever been without parties, which are a natural offspring of freedom. an obvious and permanent division of every people is into the owners of the soil, and the other inhabitants. in a certain sense the country may be said to belong to the former. if each landholder has an exclusive property in his share, the body of landholders have an exclusive property in the whole. as the soil becomes subdivided, and actually cultivated by the owners, this view of the subject derives force from the principle of natural law, which vests in individuals an exclusive right to the portions of ground with which he has incorporated his labour & improvements. whatever may be the rights of others derived from their birth in the country, from their interest in the highways & other parcels left open for common use, as well as in the national edifices and monuments; from their share in the public defence, and from their concurrent support of the gov^t, it would seem unreasonable to extend the right so far as to give them when become the majority, a power of legislation over the landed property without the consent of the proprietors. some barrier ag^{st} the invasion of their rights would not be out of place in a just and provident system of gov^t. the principle of such an arrangement has prevailed in all gov^{ts} where peculiar privileges or interests held by a part were to be secured ag^{st} violation, and in the various associations where pecuniary or other property forms the stake. in the former case a defensive right has been allowed; and if the arrangement be wrong, it is not in the defense but in the kind of privilege to be defended. in the latter case, the shares of suffrage, allotted to individuals have been with acknowledged justice apportioned more or less to their respective interests in the common stock. "these reflections suggest the expediency of such a modification of gov^t as would give security to the part of the society having most at stake and being most exposed to danger. three modifications present themselves. "1. _confining_ the right of suffrage to freeholders, & to such as hold an equivalent property, convertible of course into freeholds. the objection to this regulation is obvious. it violates the vital principle of free gov^t that those who are to be bound by laws, ought to have a voice in making them. and the violation w^d be more strikingly unjust as the law makers become the minority. the regulation would be as unpropitious, also, as it would be unjust. it would engage the numerical & physical force in a constant struggle ag^{st} the public authority; unless kept down by a standing army fatal to all parties. "2. confining the right of suffrage for one branch to the holders of property, and for the other branch to those without property. this arrangement which w^d give a mutual defence, where there might be mutual danger of encroachment, has an aspect of equality & fairness. but it w^d not be in fact either equal or fair, because the rights to be defended would be unequal, being on one side those of property as well as of persons, and on the other those of persons only. the temptation also to encroach tho' in a certain degree mutual, w^d be felt more strongly on one side than on the other: it would be more likely to beget an abuse of the legislative negative in extorting concessions at the expence of property, than the reverse. the division of the state into two classes, with distinct & independ^t organs of power, and without any intermingled agency whatever, might lead to contests & antipathies not dissimilar to those between the patricians & plebeians at rome. "3. confining the right of electing one branch of the legislature to freeholders, and admitting all others to a common right with holders of property in electing the other branch. this w^d give a defensive power to holders of property, and to the class also without property when becoming a majority of electors, without depriving them in the meantime of a participation in the public councils. if the holders of property would thus have a two-fold share of representation, they w^d have at the same time a two-fold stake in it, the rights of property as well as of persons, the two-fold object of political institutions. and if no exact & safe equilibrium can be introduced, it is more reasonable that a preponderating weight sh^d be allowed to the greater interest than to the lesser. experience alone can decide how far the practice in this case would correspond with the theory. such a distribution of the right of suffrage was tried in n. york and has been abandoned whether from experienced evils, or party calculations, may possibly be a question. it is still on trial in n. carolina, with what practical indications is not known. it is certain that the trial, to be satisfactory ought to be continued for no inconsiderable period; untill in fact the non-freeholders should be the majority. "4. should experience or public opinion require an equal & universal suffrage for each branch of the gov^t such as prevails generally in the u. s., a resource favorable to the rights of the landed & other property, when its possessors become the minority, may be found in an enlargement of the election districts for one branch of the legislature, and an extension of its period of service. large districts are manifestly favorable to the election of persons of general respectability, and of probable attachment to the rights of property, over competitors depending on the personal solicitation practicable on a contracted theatre. and altho' an ambitious candidate, of personal distinction, might occasionally recommend himself to popular choice by espousing a popular though unjust object, it might rarely happen to many districts at the same time. the tendency of a longer period of service would be, to render the body more stable in its policy, and more capable of stemming popular currents taking a wrong direction, till reason & justice could regain their ascendancy. "5. should even such a modification as the last be deemed inadmissible, and universal suffrage and very short periods of elections within contracted spheres, be required for each branch of the gov^t, the security for the holders of property when the minority, can only be derived from the ordinary influence possessed by property, & the superior information incident to its holders; from the popular sense of justice enlightened & enlarged by a diffusive education; and from the difficulty of combining & effectuating unjust purposes throughout an extensive country; a difficulty essentially distinguishing the u. s. & even most of the individual states, from the small communities where a mistaken interest or contagious passion, could readily unite a majority of the whole under a factious leader, in trampling on the rights of the minor party. "under every view of the subject, it seems indispensable that the mass of citizens should not be without a voice, in making the laws which they are to obey, & in chusing the magistrates who are to administer them, and if the only alternative be between an equal & universal right of suffrage for each branch of the gov^t and a confinement of the _entire_ right to a part of the citizens, it is better that those having the greater interest at stake namely that of property & persons both, should be deprived of half their share in the gov^t than, that those having the lesser interest, that of personal rights only, should be deprived of the whole."--madison's note. doc^r franklin. it is of great consequence that we sh^d not depress the virtue & public spirit of our common people; of which they displayed a great deal during the war, and which contributed principally to the favorable issue of it. he related the honorable refusal of the american seamen who were carried in great numbers into the british prisons during the war, to redeem themselves from misery or to seek their fortunes, by entering on board the ships of the enemies to their country; contrasting their patriotism with a contemporary instance in which the british seamen made prisoners by the americans, readily entered on the ships of the latter on being promised a share of the prizes that might be made out of their own country. this proceeded he said from the different manner in which the common people were treated in america & g. britain. he did not think that the elected had any right in any case to narrow the privileges of the electors. he quoted as arbitrary the british statute setting forth the danger of tumultuous meetings, and under that pretext narrowing the right of suffrage to persons having freeholds of a certain value; observing that this statute was soon followed by another under the succeeding parliam^t subjecting the people who had no votes to peculiar labors & hardships. he was persuaded also that such a restriction as was proposed would give great uneasiness in the populous states. the sons of a substantial farmer, not being themselves freeholders, would not be pleased at being disfranchised, and there are a great many persons of that description. m^r mercer. the constitution is objectionable in many points, but in none more than the present. he objected to the footing on which the qualification was put, but particularly to the _mode of election_ by the people. the people can not know & judge of the characters of candidates. the worse possible choice will be made. he quoted the case of the senate in virg^a as an example in point. the people in towns can unite their votes in favor of one favorite; & by that means always prevail over the people of the country, who being dispersed will scatter their votes among a variety of candidates. m^r rutlidge thought the idea of restraining the right of suffrage to the freeholders a very unadvised one. it would create division among the people & make enemies of all those who should be excluded. on the question for striking out as moved by m^r gov^r morris, from the word "qualifications" to the end of the iii article n. h. no. mass. no. c^t no. p^a no. del. ay. m^d div^d. v^a no. n. c. no. s. c. no. geo. not pres^t. adjourned wednesday aug^{st} 8. in convention art: iv. sect. 1.--m^r mercer expressed his dislike of the whole plan, and his opinion that it never could succeed. m^r ghorum. he had never seen any inconveniency from allowing such as were not freeholders to vote, though it had long been tried. the elections in phil^a, n. york & boston where the merchants & mechanics vote are at least as good as those made by freeholders only. the case in england was not accurately stated yesterday (by m^r madison). the cities & large towns are not the seat of crown influence & corruption. these prevail in the boroughs, and not on account of the right which those who are not freeholders have to vote, but of the smallness of the number who vote. the people have been long accustomed to this right in various parts of america, and will never allow it to be abridged. we must consult their rooted prejudices if we expect their concurrence in our propositions. m^r mercer did not object so much to an election by the people at large including such as were not freeholders, as to their being left to make their choice without any guidance. he hinted that candidates ought to be nominated by the state legislatures. on the question for agreeing to art: iv--sect, 1 it pass^d nem. con. art. iv. sect. 2. taken up. col. mason was for opening a wide door for emigrants; but did not chuse to let foreigners and adventurers make laws for us & govern us. citizenship for three years was not enough for ensuring that local knowledge which ought to be possessed by the representative. this was the principal ground of his objection to so short a term. it might also happen that a rich foreign nation, for example great britain, might send over her tools who might bribe their way into the legislature for insidious purposes. he moved that "seven" years instead of "three," be inserted. m^r gov^r morris 2^{ded} the motion, & on the question, all the states agreed to it except connecticut. m^r sherman moved to strike out the word "resident" and insert "inhabitant," as less liable to misconstruction. m^r madison 2^{ded} the motion, both were vague, but the latter least so in common acceptation, and would not exclude persons absent occasionally for a considerable time on public or private business. great disputes had been raised in virg^a concerning the meaning of residence as a qualification of representatives which were determined more according to the affection or dislike to the man in question, than to any fixt interpretation of the word. m^r wilson preferred "inhabitant." m^r gov^r morris, was opposed to both and for requiring nothing more than a freehold. he quoted great disputes in n. york occasioned by these terms, which were decided by the arbitrary will of the majority. such a regulation is not necessary. people rarely chuse a nonresident--it is improper as in the 1^{st} branch, _the people at large_, not the _states_, are represented. m^r rutlidge urged & moved, that a residence of 7 years sh^d be required in the state wherein the member sh^d be elected. an emigrant from n. england to s. c. or georgia would know little of its affairs and could not be supposed to acquire a thorough knowledge in less time. m^r read reminded him that we were now forming a _nat^l_ gov^t and such a regulation would correspond little with the idea that we were one people. m^r wilson. enforced the same consideration. m^r madison suggested the case of new states in the west, which could have perhaps no representation on that plan. m^r mercer. such a regulation would present a greater alienship among the states than existed under the old federal system. it would interweave local prejudices & state distinctions in the very constitution which is meant to cure them. he mentioned instances of violent disputes raised in maryland concerning the term "residence." m^r elseworth thought seven years of residence was by far too long a term: but that some fixt term of previous residence would be proper. he thought one year would be sufficient, but seemed to have no objection to three years. m^r dickinson proposed that it should read "inhabitant actually resident for ---years." this would render the meaning less indeterminate. m^r wilson. if a short term should be inserted in the blank, so strict an expression might be construed to exclude the members of the legislature, who could not be said to be actual residents in their states whilst at the seat of the gen^l government. m^r mercer. it would certainly exclude men, who had once been inhabitants, and returning from residence elsewhere to resettle in their original state; although a want of the necessary knowledge could not in such cases be presumed. m^r mason thought 7 years too long, but would never agree to part with the principle. it is a valuable principle. he thought it a defect in the plan that the representatives would be too few to bring with them all the local knowledge necessary. if residence be not required, rich men of neighbouring states, may employ with success the means of corruption in some particular district and thereby get into the public councils after having failed in their own state. this is the practice in the boroughs of england. on the question for postponing in order to consider m^r dickinsons motion n. h. no. mass. no. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. ay. geo. ay. on the question for inserting "inhabitant" in place of "resident"--ag^d to nem. con. m^r elseworth & col. mason move to insert "one year" for previous inhabitancy. m^r williamson liked the report as it stood. he thought "resident" a good eno' term. he was ag^{st} requiring any period of previous residence. new residents if elected will be most zealous to conform to the will of their constituents, as their conduct will be watched with a more jealous eye. m^r butler & m^r rutlidge moved "three years" instead of "one year" for previous inhabitancy. on the question for 3 years, n. h. no. mass. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. on the question for "1 year" n. h. no.--mass. no. c^t no. n. j. ay. p^a no. del. no. m^d div^d. v^a no. n. c. ay. s. c. ay. geo. ay. art. iv. sect. 2. as amended in manner preceding, was agreed to nem. con. art. iv. sect. 3. taken up. gen^l pinkney & m^r pinkney moved that the number of representatives allotted to s. carol^a be "six." on the question, n. h. no. mass. no. c^t no. n. j. no. p^a no. delaware ay. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. the 3. sect of art: iv, was then agreed to. art: iv. sect. 4. taken up. m^r williamson moved to strike out "according to the provisions hereinafter made" and to insert the words "according to the rule hereafter to be provided for direct taxation."--see art. vii. sect. 3. on the question for agreeing to m^r williamson's amendment n. h. ay. mass. ay. c^t ay. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r king wished to know what influence the vote just passed was meant to have on the succeeding part of the report, concerning the admission of slaves into the rule of representation. he could not reconcile his mind to the article if it was to prevent objections to the latter part. the admission of slaves was a most grating circumstance to his mind, & he believed would be so to a great part of the people of america. he had not made a strenuous opposition to it heretofore because he had hoped that this concession would have produced a readiness which had not been manifested, to strengthen the gen^l gov^t and to mark a full confidence in it. the report under consideration had by the tenor of it, put an end to all those hopes. in two great points the hands of the legislature were absolutely tied. the importation of slaves could not be prohibited--exports could not be taxed. is this reasonable? what are the great objects of the gen^l system? 1. defence ag^{st} foreign invasion. 2. ag^{st} internal sedition. shall all the states then be bound to defend each; & shall each be at liberty to introduce a weakness which will render defence more difficult? shall one part of the u. s. be bound to defend another part, and that other part be at liberty not only to increase its own danger, but to withhold the compensation for the burden? if slaves are to be imported shall not the exports produced by their labor, supply a revenue the better to enable the gen^l gov^a to defend their masters? there was so much inequality & unreasonableness in all this, that the people of the northern states could never be reconciled to it. no candid man could undertake to justify it to them. he had hoped that some accommodation w^d have taken place on this subject; that at least a time w^d have been limited for the importation of slaves. he never could agree to let them be imported without limitation & then be represented in the nat^l legislature. indeed he could so little persuade himself of the rectitude of such a practice, that he was not sure he could assent to it under any circumstances. at all events, either slaves should not be represented, or exports should be taxable. m^r sherman regarded the slave trade as iniquitous; but the point of representation having been settled after much difficulty & deliberation, he did not think himself bound to make opposition; especially as the present article as amended did not preclude any arrangement whatever on that point in another place of the report. m^r madison objected to 1 for every 40.000 inhabitants as a perpetual rule. the future increase of population if the union sh^d be permanent, will render the number of representatives excessive. m^r ghorum. it is not to be supposed that the gov^t will last so long as to produce this effect. can it be supposed that this vast country including the western territory will 150 years hence remain one nation? m^r elseworth. if the gov^t should continue so long, alterations may be made in the constitution in the manner proposed in a subsequent article. m^r sherman & m^r madison moved to insert the words "not exceeding," before the words "1 for every 40.000." which was agreed to nem. con. m^r gov^r morris moved to insert "free" before the word inhabitants. much he said would depend on this point. he never would concur in upholding domestic slavery. it was a nefarious institution. it was the curse of heaven on the states where it prevailed. compare the free regions of the middle states, where a rich & noble cultivation marks the prosperity & happiness of the people, with the misery & poverty which overspread the barren wastes of v^a mary^d & the other states having slaves. travel thro' y^e whole continent & you behold the prospect continually varying with the appearance & disappearance of slavery. the moment you leave y^e e. states & enter n. york, the effects of the institution become visible, passing thro' the jerseys & entering p^a every criterion of superior improvement witnesses the change. proceed southw^{dly}. & every step you take thro' y^e great regions of slaves presents a desert increasing, with y^e increasing [word is illegible] proportion of these wretched beings. upon what principle is it that the slaves shall be computed in the representation? are they men? then make them citizens and let them vote. are they property? why then is no other property included? the houses in this city (philad^a) are worth more than all the wretched slaves which cover the rice swamps of south carolina. the admission of slaves into the representation when fairly explained comes to this: that the inhabitant of georgia and s. c. who goes to the coast of africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a gov^t instituted for protection of the rights of mankind, than the citizen of p^a or n. jersey who views with a laudable horror, so nefarious a practice. he would add that domestic slavery is the most prominent feature in the aristocratic countenance of the proposed constitution. the vassalage of the poor has ever been the favorite offspring of aristocracy. and what is the proposed compensation to the northern states for a sacrifice of every principle of right, of every impulse of humanity. they are to bind themselves to march their militia for the defence of the s. states; for their defence ag^{st} those very slaves of whom they complain. they must supply vessels & seamen in case of foreign attack. the legislature will have indefinite power to tax them by excises, and duties on imports: both of which will fall heavier on them than on the southern inhabitants; for the bohae tea used by a northern freeman, will pay more tax than the whole consumption of the miserable slave, which consists of nothing more than his physical subsistence and the rag that covers his nakedness. on the other side the southern states are not to be restrained from importing fresh supplies of wretched africans, at once to increase the danger of attack, and the difficulty of defence; nay they are to be encouraged to it by an assurance of having their votes in the nat^l gov^t increased in proportion, and are at the same time to have their exports & their slaves exempt from all contributions for the public service. let it not be said that direct taxation is to be proportioned to representation. it is idle to suppose that the gen^l gov^t can stretch its hand directly into the pockets of the people scattered over so vast a country. they can only do it through the medium of exports imports & excises. for what then are all the sacrifices to be made? he would sooner submit himself to a tax for paying for all the negroes in the u. states, than saddle posterity with such a constitution. m^r dayton 2^{ded} the motion. he did it he said that his sentiments on the subject might appear whatever might be the fate of the amendment. m^r sherman, did not regard the admission of the negroes into the ratio of representation, as liable to such insuperable objections. it was the freemen of the south^n states who were in fact to be represented according to the taxes paid by them, and the negroes are only included in the estimate of the taxes. this was his idea of the matter. m^r pinkney, considered the fisheries & the western frontier as more burthensome to the u. s. than the slaves. he thought this could be demonstrated if the occasion were a proper one. m^r wilson, thought the motion premature. an agreement to the clause would be no bar to the object of it. question on motion to insert "free" before "inhabitants," n. h. no. mass. no. c^t no. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. on the suggestion of m^r dickinson the words, "provided that each state shall have one representative at least,"--were added nem. con. art. iv. sect. 4. as amended was agreed to con. nem. art. iv. sect. 5. taken up. m^r pinkney moved to strike out sect. 5. as giving no peculiar advantage to the house of representatives, and as clogging the gov^t. if the senate can be trusted with the many great powers proposed, it surely may be trusted with that of originating money bills. m^r ghorum. was ag^{st} allowing the senate to _originate_; but only to _amend_. m^r gov^r morris. it is particularly proper that the senate sh^d have the right of originating money bills. they will sit constantly, will consist of a smaller number, and will be able to prepare such bills with due correctness; and so as to prevent delay of business in the other house. col. mason was unwilling to travel over this ground again. to strike out the section, was to unhinge the compromise of which it made a part. the duration of the senate made it improper. he does not object to that duration. on the contrary he approved of it. but joined with the smallness of the number, it was an argument against adding this to the other great powers vested in that body. his idea of an aristocracy was that it was the govern^t of the few over the many. an aristocratic body, like the screw in mechanics, work^g its way by slow degrees, and holding fast whatever it gains, should ever be suspected of an encroaching tendency. the purse strings should never be put into its hands. m^r mercer, considered the exclusive power of originating money bills as so great an advantage, that it rendered the equality of votes in the senate ideal & of no consequence. m^r butler was for adhering to the principle which had been settled. m^r wilson was opposed to it on its merits without regard to the compromise. m^r elseworth did not think the clause of any consequence, but as it was thought of consequence by some members from the larger states, he was willing it should stand. m^r madison was for striking it out; considering it as of no advantage to the large states as fettering the gov^t and as a source of injurious altercations between the two houses. on the question for striking out "sect. 5, art. iv". n. h. no. mass. no. c^t no. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. ay. geo. ay. adj^d. thursday, aug^{st} 9. in convention art: iv. sect. 6. m^r randolph expressed his dissatisfaction at the disagreement yesterday to sect. 5. concerning money bills, as endangering the success of the plan, and extremely objectionable in itself; and gave notice that he should move for a reconsideration of the vote. m^r williamson said he had formed a like intention. m^r wilson, gave notice that he sh^d move to reconsider the vote, requiring seven instead of three years of citizenship as a qualification of candidates for the house of representatives. art. iv. sec. 6. & 7. agreed to nem. con. art. v. sect. 1. taken up. m^r wilson objected to vacancies in the senate being supplied by the executives of the states. it was unnecessary as the legislatures will meet so frequently. it removes the appointment too far from the people; the executives in most of the states being elected by the legislatures. as he had always thought the appointment of the executives by the legislative department wrong; so it was still more so that the executive should elect into the legislative department. m^r randolph thought it necessary in order to prevent inconvenient chasms in the senate. in some states the legislatures meet but once a year. as the senate will have more power & consist of a smaller number than the other house, vacancies there will be of more consequence. the executives might be safely trusted he thought with the appointment for so short a time. m^r elseworth. it is only said that the executive _may_ supply vacancies. when the legislative meeting happens to be near, the power will not be exerted. as there will be but two members from a state vacancies may be of great moment. m^r williamson. senators may resign or not accept. this provision is therefore absolutely necessary. on the question for striking out "vacancies shall be supplied by the executives" n. h. no. mass. no. c^t no. n. j. no. p^a ay. m^d div^d. v^a no. n. c. no. s. c. no. geo. no. m^r williamson moved to insert after "vacancies shall be supplied by the executives," the following words "unless other provision shall be made by the legislature" (of the state). m^r elseworth. he was willing to trust the legislature, or the executive of a state, but not to give the former a discretion to refer appointments for the senate to whom they pleased. question on m^r williamson's motion n. h. no. mass. no. c^t no. n. j. no. p^a no. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay. m^r madison in order to prevent doubts whether resignations could be made by senators, or whether they could refuse to accept, moved to strike out the words after "vacancies," & insert the words "happening by refusals to accept, resignations or otherwise, may be supplied by the legislature of the state in the representation of which such vacancies shall happen, or by the executive thereof until the next meeting of the legislature." m^r gov^r morris this is absolutely necessary, otherwise, as members chosen into the senate are disqualified from being appointed to any office by sect. 9. of this art: it will be in the power of a legislature by appointing a man a senator ag^{st} his consent, to deprive the u. s. of his services. the motion of m^r madison was agreed to nem. con. m^r randolph called for division of the section, so as to leave a distinct question on the last words "each member shall have one vote." he wished this last sentence to be postponed until the reconsideration should have taken place on sect. 5. art. iv. concerning money bills. if that section should not be reinstated his plan would be to vary the representation in the senate. m^r strong concurred in m^r randolph's ideas on this point. m^r read did not consider the section as to money bills of any advantage to the larger states and had voted for striking it out as being viewed in the same light by the larger states. if it was considered by them as of any value, and as a condition of the equality of votes in the senate, he had no objection to its being re-instated. m^r wilson--m^r elseworth & m^r madison urged that it was of no advantage to the larger states, and that it might be a dangerous source of contention between the two houses. all the principal powers of the nat^l legislature had some relation to money. doc^r franklin, considered the two clauses, the originating of money bills, and the equality of votes in the senate, as essentially connected by the compromise which had been agreed to. col. mason said this was not the time for discussing this point. when the originating of money bills shall be reconsidered, he thought it could be demonstrated that it was of essential importance to restrain the right to the house of representatives the immediate choice of the people. m^r williamson. the state of n. c. had agreed to an equality in the senate, merely in consideration that money bills should be confined to the other house: and he was surprised to see the smaller states forsaking the condition on which they had received their equality. question on the section 1. down to the last sentence n. h. ay. mass. no. c^t ay. n. j. ay. p^a[19] no. del. ay. m^d ay. virg^a ay. n. c. no. s. c. div^d. geo. ay. [19] "in the printed journal pennsylvania ay."--madison's note. m^r randolph moved that the last sentence "each member shall have one vote," be postponed. it was observed that this could not be necessary; as in case the sanction as to originating money bills should not be reinstated, and a revision of the constitution should ensue, it w^d still be proper that the members should vote per capita. a postponement of the preceding sentence allowing to each state 2 members w^d have been more proper. m^r mason, did not mean to propose a change of this mode of voting per capita in any event. but as there might be other modes proposed, he saw no impropriety in postponing the sentence. each state may have two members, and yet may have unequal votes. he said that unless the exclusive originating of money bills should be restored to the house of representatives, he should, not from obstinacy but duty and conscience, oppose throughout the equality of representation in the senate. m^r gov^r morris. such declarations were he supposed, addressed to the smaller states in order to alarm them for their equality in the senate, and induce them ag^{st} their judgments, to concur in restoring the section concerning money bills. he would declare in his turn that as he saw no prospect of amending the constitution of the senate & considered the section relating to money bills as intrinsically bad, he would adhere to the section establishing the equality at all events. m^r wilson. it seems to have been supposed by some that the section concerning money bills is desirable to the large states. the fact was that two of those states (p^a & v^a) had uniformly voted ag^{st} it without reference to any other part of the system. m^r randolph, urged as col. mason had done that the sentence under consideration was connected with that relating to money bills, and might possibly be affected by the result of the motion for reconsidering the latter. that the postponement was therefore not improper. question for postponing "each member shall have one vote," n. h. div^d. mass. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. the words were then agreed to as part of the section. m^r randolph then gave notice that he should move to reconsider this whole sect: 1. art. v. as connected with the 5. sect. art. iv. as to which he had already given such notice. art. v. sect. 2^d taken up. m^r gov^r morris moved to insert after the words, "immediately after," the following "they shall be assembled in consequence of," which was agreed to nem. con. as was then the whole sect. 2. art: v. sect. 3. taken up. m^r gov^r morris moved to insert 14 instead of 4 years citizenship as a qualification for senators: urging the danger of admitting strangers into our public councils. m^r pinkney 2^d him. m^r elseworth, was opposed to the motion as discouraging meritorious aliens from emigrating to this country. m^r pinkney. as the senate is to have the power of making treaties & managing our foreign affairs, there is peculiar danger and impropriety in opening its door to those who have foreign attachments. he quoted the jealousy of the athenians on this subject who made it death for any stranger to intrude his voice into their legislative proceedings. col. mason highly approved of the policy of the motion. were it not that many not natives of this country had acquired great merit during the revolution, he should be for restraining the eligibility into the senate, to natives. m^r madison was not averse to some restrictions on this subject; but could never agree to the proposed amendment. he thought any restriction however in the _constitution_ unnecessary, and improper, unnecessary; because the nat^l legisl^{re} is to have the right of regulating naturalization, and can by virtue thereof fix different periods of residence or conditions of enjoying different privileges of citizenship: improper; because it will give a tincture of illiberality to the constitution: because it will put it out of the power of the nat^l legislature even by special acts of naturalization to confer the full rank of citizens on meritorious strangers & because it will discourage the most desirable class of people from emigrating to the u. s. should the proposed constitution have the intended effect of giving stability & reputation to our gov^{ts} great numbers of respectable europeans; men who love liberty and wish to partake its blessings, will be ready to transfer their fortunes hither. all such would feel the mortification of being marked with suspicious incapacitations though they s^d not covet the public honors. he was not apprehensive that any dangerous number of strangers would be appointed by the state legislatures, if they were left at liberty to do so: nor that foreign powers would make use of strangers as instruments for their purposes. their bribes would be expended on men whose circumstances would rather stifle than excite jealousy & watchfulness in the public. m^r butler was decidedly opposed to the admission of foreigners without a long residence in the country. they bring with them, not only attachments to other countries; but ideas of gov^t so distinct from ours that in every point of view they are dangerous. he acknowledged that if he himself had been called into public life within a short time after his coming to america, his foreign habits opinions & attachments would have rendered him an improper agent in public affairs. he mentioned the great strictness observed in great britain on this subject. doc^r franklin was not against a reasonable time, but should be very sorry to see any thing like illiberality inserted in the constitution. the people in europe are friendly to this country. even in the country with which we have been lately at war, we have now & had during the war, a great many friends not only among the people at large but in both houses of parliament. in every other country in europe all the people are our friends. we found in the course of the revolution, that many strangers served us faithfully, and that many natives took part ag^{st} their country. when foreigners after looking about for some other country in which they can obtain more happiness, give a preference to ours, it is a proof of attachment which ought to excite our confidence & affection. m^r randolph did not know but it might be problematical whether emigrations to this country were on the whole useful or not: but he could never agree to the motion for disabling them for 14 years to participate in the public honours. he reminded the convention of the language held by our patriots during the revolution, and the principles laid down in all our american constitutions. many foreigners may have fixed their fortunes among us under the faith of these invitations. all persons under this description, with all others who would be affected by such a regulation, would enlist themselves under the banners of hostility to the proposed system. he would go as far as seven years, but no further. m^r wilson said he rose with feelings which were perhaps peculiar; mentioning the circumstance of his not being a native, and the possibility, if the ideas of some gentlemen should be pursued, of his being incapacitated from holding a place under the very constitution, which he had shared in the trust of making. he remarked the illiberal complexion which the motion would give to the system & the effect which a good system would have in inviting meritorious foreigners among us, and the discouragement & mortification they must feel from the degrading discrimination now proposed. he had himself experienced this mortification. on his removal into maryland, he found himself, from defect of residence, under certain legal incapacities which never ceased to produce chagrin, though he assuredly did not desire & would not have accepted the offices to which they related. to be appointed to a place may be matter of indifference. to be incapable of being appointed, is a circumstance grating and mortifying. m^r gov^r morris. the lesson we are taught is that we should be governed as much by our reason, and as little by our feelings as possible. what is the language of reason on this subject? that we should not be polite at the expence of prudence. there was a moderation in all things. it is said that some tribes of indians, carried their hospitality so far as to offer to strangers their wives & daughters. was this a proper model for us? he would admit them to his house, he would invite them to his table, would provide for them comfortable lodgings; but would not carry the complaisance so far as, to bed them with his wife. he would let them worship at the same altar, but did not choose to make priests of them. he ran over the privileges which emigrants would enjoy among us, though they should be deprived of that of being eligible to the great offices of government; observing that they exceeded the privileges allowed to foreigners in any part of the world; and that as every society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted, there could be no room for complaint. as to those philosophical gentlemen, those citizens of the world as they called themselves, he owned he did not wish to see any of them in our public councils. he would not trust them. the men who can shake off their attachments to their own country can never love any other. these attachments are the wholesome prejudices which uphold all governments. admit a frenchman into your senate, and he will study to increase the commerce of france: an englishman, he will feel an equal bias in favor of that of england. it has been said that the legislatures will not chuse foreigners, at least improper ones. there was no knowing what legislatures would do. some appointments made by them, proved that every thing ought to be apprehended from the cabals practised on such occasions. he mentioned the case of a foreigner who left this state in disgrace, and worked himself into an appointment from another to congress. question on the motion of m^r gov^r morris to insert 14 in place of 4 years n.h. ay. mass. no. c^t no. n.j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. on 13 years, moved by m^r gov^r morris n. h. ay. mass. no. c^t no. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. on 10 years moved by gen^l pinkney n. h. ay. mass. no. c^t no. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. d^r franklin reminded the convention that it did not follow from an omission to insert the restriction in the constitution that the persons in question w^d be actually chosen into the legislature. m^r rutlidge. 7 years of citizenship have been required for the house of representatives. surely a longer time is requisite for the senate, which will have more power. m^r williamson. it is more necessary to guard the senate in this case than the other house. bribery & cabal can be more easily practised in the choice of the senate which is to be made by the legislatures composed of a few men, than of the house of represent^s who will be chosen by the people. m^r randolph will agree to 9 years with the expectation that it will be reduced to seven if m^r wilson's motion to reconsider the vote fixing 7 years for the house of representatives should produce a reduction of that period. on a question for 9 years n. h. ay. mass. no. c^t no. n. j. ay. p^a no. del. ay. m^d no. v^a ay. n. c. div^d. s. c. ay. geo. ay. the term "resident" was struck out, & "inhabitant" inserted nem. con. art. v. sect. 3. as amended agreed to nem. con. sect. 4. agreed to nem. con. article vi. sect. 1. taken up. m^r madison & m^r gov^r morris moved to strike out "each house" & to insert "the house of representatives;" the right of the legislatures to regulate the times & places &c. in the election of senators being involved in the right of appointing them, which was disagreed to. division of the question being called, it was taken on the first part down to "but their provisions concerning &c." the first part was agreed to nem. con. m^r pinkney & m^r rutlidge moved to strike out the remaining part viz but their provisions concerning them may at any time be altered by the legislature of the united states. the states they contended could & must be relied on in such cases. m^r ghorum. it would be as improper take this power from the nat^l legislature, as to restrain the british parliament from regulating the circumstances of elections, leaving this business to the counties themselves-m^r madison.[20] the necessity of a gen^l gov^t supposes that the state legislatures will sometimes fail or refuse to consult the common interest at the expence of their local conveniency or prejudices. the policy of referring the appointment of the house of representatives to the people and not to the legislatures of the states, supposes that the result will be somewhat influenced by the mode. this view of the question seems to decide that the legislatures of the states ought not to have the uncontrouled right of regulating the times places & manner of holding elections. these were words of great latitude. it was impossible to foresee all the abuses that might be made of the discretionary power. whether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, sh^d all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the legislatures, and might materially affect the appointments. whenever the state legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed. besides, the inequality of the representation in the legislatures of particular states, would produce a like inequality in their representation in the nat^l legislature, as it was presumable that the counties having the power in the former case would secure it to themselves in the latter. what danger could there be in giving a controuling power to the nat^l legislature? of whom was it to consist? 1. of a senate to be chosen by the state legislatures. if the latter therefore could be trusted, their representatives could not be dangerous. 2. of representatives elected by the same people who elect the state legislatures; surely then if confidence is due to the latter, it must be due to the former. it seemed as improper in principle, though it might be less inconvenient in practice, to give to the state legislatures this great authority over the election of the representatives of the people in the gen^l legislature, as it would be to give to the latter a like power over the election of their representatives in the state legislatures. [20] madison wrote to jefferson, july 18: "i have taken lengthy notes of everything that has yet passed, and mean to go on with the drudgery, if no indisposition obliges me to discontinue it. it is not possible to form any judgment of the future duration of the session. i am led by sundry circumstances to guess that the residue of the work will not be very quickly despatched. the public mind is very impatient for ye event, and various reports are circulating which tend to inflame curiosity. i do not learn however that any discontent is expressed at the concealment; and have little doubt that the people will be as ready to receive as we shall be able to propose, a government that will secure their liberties & happiness."--mad. mss. m^r king. if this power be not given to the nat^l legislature, their right of judging of the returns of their members may be frustrated. no probability has been suggested of its being abused by them. altho this scheme of erecting the gen^l gov^t on the authority of the state legislatures has been fatal to the federal establishment, it would seem as if many gentlemen, still foster the dangerous idea. m^r gov^r morris observed that the states might make false returns and then make no provisions for new elections. m^r sherman did not know but it might be best to retain the clause, though he had himself sufficient confidence in the state legislatures. the motion of m^r p. & m^r r. did not prevail. the word "respectively" was inserted after the word "state." on the motion of m^r read the word "their" was struck out, & "regulations in such cases" inserted in place of "provisions concerning them" the clause then reading--"but regulations in each of the foregoing cases may at any time, be made or altered by the legislature of the u. s." this was meant to give the nat^l legislature a power not only to alter the provisions of the states, but to make regulations in case the states should fail or refuse altogether. art. vi. sect. 1. as thus amended was agreed to nem. con. adjourned. friday aug^{st} 10. in convention art. vi. sect. 2. taken up. m^r pinkney. the committee as he had conceived were instructed to report the proper qualifications of property for the members of the nat^l legislature; instead of which they have referred the task to the nat^l legislature itself. should it be left on this footing, the first legislature will meet without any particular qualifications of property; and if it should happen to consist of rich men they might fix such qualifications as may be too favorable to the rich; if of poor men, an opposite extreme might be run into. he was opposed to the establishment of an undue aristocratic influence in the constitution but he thought it essential that the members of the legislature, the executive, and the judges, should be possessed of competent property to make them independent & respectable. it was prudent when such great powers were to be trusted to connect the tie of property with that of reputation in securing a faithful administration. the legislature would have the fate of the nation put into their hands. the president would also have a very great influence on it. the judges would have not only important causes between citizen & citizen but also where foreigners are concerned. they will even be the umpires between the u. states and individual states as well as between one state & another. were he to fix the quantum of property which should be required, he should not think of less than one hundred thousand dollars for the president, half of that sum for each of the judges, and in like proportion for the members of the nat^l legislature. he would however leave the sums blank. his motion was that the president of the u. s. the judges, and members of the legislature should be required to swear that they were respectively possessed of a cleared unincumbered estate to the amount of ---in the case of the president &c &c. m^r rutlidge seconded the motion, observing that the committee had reported no qualifications because they could not agree on any among themselves, being embarrassed by the danger on one side of displeasing the people by making them high, and on the other of rendering them nugatory by making them low. m^r elseworth. the different circumstances of different parts of the u. s. and the probable difference between the present and future circumstances of the whole, render it improper to have either _uniform_ or _fixed_ qualifications. make them so high as to be useful in the s. states, and they will be inapplicable to the e. states. suit them to the latter, and they will serve no purpose in the former. in like manner what may be accommodated to the existing state of things among us, may be very inconvenient in some future state of them. he thought for these reasons that it was better to leave this matter to the legislative discretion than to attempt a provision for it in the constitution. doct^r franklin expressed his dislike of every thing that tended to debase the spirit of the common people. if honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire of more property. some of the greatest rogues he was ever acquainted with, were the richest rogues. we should remember the character which the scripture requires in rulers, that they should be men hating covetousness. this constitution will be much read and attended to in europe, and if it should betray a great partiality to the rich will not only hurt us in the esteem of the most liberal and enlightened men there, but discourage the common people from removing to this country. the motion of m^r pinkney was rejected by so general a _no_, that the states were not called. m^r madison was opposed to the section as vesting an improper & dangerous power in the legislature. the qualifications of electors and elected were fundamental articles in a republican gov^t and ought to be fixed by the constitution. if the legislature could regulate those of either, it can by degrees subvert the constitution. a republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorized to elect. in all cases where the representatives of the people will have a personal interest distinct from that of their constituents, there was the same reason for being jealous of them, as there was for relying on them with full confidence, when they had a common interest. this was one of the former cases. it was as improper as to allow them to fix their own wages, or their own privileges. it was a power also which might be made subservient to the views of one faction ag^{st} another. qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of a weaker faction. m^r elseworth, admitted that the power was not unexceptionable; but he could not view it as dangerous. such a power with regard to the electors would be dangerous because it would be much more liable to abuse. m^r gov^r morris moved to strike out "with regard to property" in order to leave the legislature entirely at large. m^r williamson. this would surely never be admitted. should a majority of the legislature be composed of any particular description of men, of lawyers for example, which is no improbable supposition, the future elections might be secured to their own body. m^r madison observed that the british parliam^t possessed the power of regulating the qualifications both of the electors, and the elected; and the abuse they had made of it was a lesson worthy of our attention. they had made the changes in both cases subservient to their own views, or to the views of political or religious parties. question on the motion to strike out with regard to property n. h. no. mass. no. c^t ay. n. j. ay. p^a ay. del.[21] no. m^d no. v^a no. n. c. no. s. c. no. geo. ay. [21] in the printed journal delaware did not vote--madison's note. m^r rutlidge was opposed to leaving the power to the legislature--he proposed that the qualifications should be the same as for members of the state legislatures. m^r wilson thought it would be best on the whole to let the section go out. a uniform rule would probably never be fixed by the legislature, and this particular power would constructively exclude every other power of regulating qualifications. on the question for agreeing to art. vi. sect. 2^d n. h. ay. mass. ay. c^t no. n. j. no. p^a no. m^d no. v^a no. n. c. no. s. c. no. geo. ay. on motion of m^r wilson to reconsider art: iv. sect. 2; so as to restore 3 in place of seven years of citizenship as a qualification for being elected into the house of represent^s. n. h. no. mass. no. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. monday next was then assigned for the reconsideration; all the states being ay. except mass^{ts}. & georgia. art: vi. sect. 3. taken up. m^r ghorum contended that less than a majority in each house should be made a quorum, otherwise great delay might happen in business, and great inconvenience from the future increase of numbers. m^r mercer was also for less than a majority. so great a number will put it in the power of a few by seceding at a critical moment to introduce convulsions, and endanger the governm^t. examples of secession have already happened in some of the states. he was for leaving it to the legislature to fix the quorum, as in great britain, where the requisite number is small & no inconveniency has been experienced. col. mason. this is a valuable & necessary part of the plan. in this extended country, embracing so great a diversity of interests, it would be dangerous to the distant parts to allow a small number of members of the two houses to make laws. the central states could always take care to be on the spot and by meeting earlier than the distant ones, or wearying their patience, and outstaying them, could carry such measures as they pleased. he admitted that inconveniences might spring from the secession of a small number; but he had also known good produced by an apprehension, of it. he had known a paper emission prevented by that cause in virginia. he thought the constitution as now moulded was founded on sound principles, and was disposed to put into it extensive powers. at the same time he wished to guard ag^{st} abuses as much as possible. if the legislature should be able to reduce the number at all, it might reduce it as low as it pleased & the u. states might be governed by a juncto--a majority of the number which had been agreed on, was so few that he feared it would be made an objection ag^{st} the plan. m^r king admitted there might be some danger of giving an advantage to the central states; but he was of opinion that the public inconveniency on the other side was more to be dreaded. m^r gov^r morris moved to fix the quorum at 33 members in the h. of rep^s & 14 in the senate. this is a majority of the present number, and will be a bar to the legislature: fix the number low and they will generally attend knowing that advantage may be taken of their absence, the secession of a small number ought not to be suffered to break a quorum. such events in the states may have been of little consequence. in the national councils they may be fatal. besides other mischiefs, if a few can break up a quorum, they may seize a moment when a particular part of the continent may be in need of immediate aid, to extort, by threatening a secession, some unjust & selfish measure. m^r mercer 2^{ded} the motion. m^r king said he had just prepared a motion which instead of fixing the numbers proposed by m^r gov^r morris as quorums, made those the lowest numbers, leaving the legislature at liberty to increase them or not. he thought the future increase of members would render a majority of the whole extremely cumbersome. m^r mercer agreed to substitute m^r king's motion in place of m^r morris's. m^r elseworth was opposed to it. it would be a pleasing ground of confidence to the people that no law or burden could be imposed on them by a few men. he reminded the movers that the constitution proposed to give such a discretion with regard to the number of representatives that a very inconvenient number was not to be apprehended. the inconveniency of secessions may be guarded ag^{st} by giving to each house an authority to require the attendance of absent members. m^r wilson concurred in the sentiments of m^r elseworth. m^r gerry seemed to think that some further precautions than merely fixing the quorum might be necessary. he observed that as 17 w^d be a majority of a quorum of 33, and 8 of 14, questions might by possibility be carried in the h. of rep^s by 2 large states, and in the senate by the same states with the aid of two small ones.--he proposed that the number for a quorum in the h. of rep^s should not exceed 50, nor be less than 33, leaving the intermediate discretion to the legislature. m^r king. as the quorum could not be altered with^t the concurrence of the president by less than 2/3 of each house, he thought there could be no danger in trusting the legislature. m^r carrol. this would be no security ag^{st} a continuance of the quorums at 33 & 14. when they ought to be increased. on question on m^r king's motion "that not less than 33 in the h. of rep^s nor less than 14 in the senate sh^d constitute a quorum which may be increased by a law, on additions of the members in either house. n. h. no. mass. ay. c^t no. n. j. no. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r randolph & m^r madison moved to add to the end of art. vi. sect. 3, "and may be authorized to compel the attendance of absent members in such manner & under such penalties as each house may provide." agreed to by all except pen^a which was divided. art. vi. sect. 3. agreed to as amended nem. con. sect. 4. } agreed to nem. con. sect. 5. } m^r madison observed that the right of expulsion (art. vi. sect. 6.) was too important to be exercised by a bare majority of a quorum: and in emergencies of faction might be dangerously abused. he moved that, "with the concurrence of 2/3," might be inserted between may & expel. m^r randolph & m^r mason approved the idea. m^r gov^r morris. this power may be safely trusted to a majority. to require more may produce abuses on the side of the minority. a few men from factious motives may keep in a member who ought to be expelled. m^r carrol thought that the concurrence of 2/3 at least ought to be required. on the question requiring 2/3 in cases of expelling a member. n. h. ay. mass. ay. c^t ay. n. j. ay. p^a div^d. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. art. vi. sect. 6. as thus amended agreed to nem. con. art: vi. sect. 7. taken up. m^r gov^r morris urged that if the yeas & nays were proper at all any individual ought to be authorized to call for them; and moved an amendment to that effect.--the small states may otherwise be under a disadvantage, and find it difficult to get a concurrence of 1/5. m^r randolph 2^{ded} y^e motion. m^r sherman had rather strike out the yeas & nays altogether. they never have done any good, and have done much mischief. they are not proper as the reasons governing the voter never appear along with them. m^r elseworth was of the same opinion. col. mason liked the section as it stood, it was a middle way between two extremes. m^r ghorum was opposed to the motion for allowing a single member to call the yeas & nays, and recited the abuses of it in mass^{ts}. 1 in stuffing the journals with them on frivolous occasions. 2 in misleading the people who never know the reasons determing the votes. the motion for allowing a single member to call the yeas & nays was disag^d to nem. con. m^r carrol. & m^r randolph moved to strike out the words, "each house" and to insert the words, "the house of representatives" in sect. 7. art. 6. and to add to the section the words "and any member of the senate shall be at liberty to enter his dissent." m^r gov^r morris & m^r wilson observed that if the minority were to have a right to enter their votes & reasons, the other side would have a right to complain, if it were not extended to them: & to allow it to both, would fill the journals, like the records of a court, with replications, rejoinders &c. question on m^r carrol's motion to allow a member to enter his dissent n. h. no. mass. no. con^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. no. s. c. ay. geo. ay. m^r gerry moved to strike out the words "when it shall be acting in its legislative capacity" in order to extend the provision to the senate when exercising its peculiar authorities and to insert "except such parts thereof as in their judgment require secrecy" after the words "publish them."--(it was thought by others that provision should be made with respect to these when that part came under consideration which proposed to vest those additional authorities in the senate.) on this question for striking out the words "when acting in its legislative capacity" n. h. div^d. mass. ay. c^t no. n. j. no. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. adjourned. saturday aug^{st} 11 in convention m^r madison & m^r rutlidge moved "that each house shall keep a journal of its proceedings, & shall publish the same from time to time; except such part of the proceedings of the senate, when acting not in its legislative capacity as may be judged by that house to require secrecy." m^r mercer. this implies that other powers than legislative will be given to the senate which he hoped would not be given. m^r madison & m^r r's motion was disag^d to by all the states except virg^a. m^r gerry & m^r sherman moved to insert after the words "publish them" the following "except such as relate to treaties & military operations." their object was to give each house a discretion in such cases.--on this question n. h. no. mass. ay. c^t ay. n. j. no. p^a no. del. no. v^a no. n. c. no. s. c. no. geo. no. m^r elseworth. as the clause is objectionable in so many shapes, it may as well be struck out altogether. the legislature will not fail to publish their proceedings from time to time. the people will call for it if it should be improperly omitted. m^r wilson thought the expunging of the clause would be very improper. the people have a right to know what their agents are doing or have done, and it should not be in the option of the legislature to conceal their proceedings. besides as this is a clause in the existing confederation, the not retaining it would furnish the adversaries of the reform with a pretext by which weak & suspicious minds may be easily misled. m^r mason thought it would give a just alarm to the people, to make a conclave of their legislature. m^r sherman thought the legislature might be trusted in this case if in any. question on 1^{st} part of the section down to "_publish them_" inclusive: agreed to nem. con. question on the words to follow, to wit "except such parts thereof as may in their judgment require secrecy." n. h. div^d. mass. ay. c^t ay. n. j. ay. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. ay. the remaining part as to yeas & nays,--agreed to nem. con. art vi. sect. 8. taken up. m^r king remarked that the section authorized the 2 houses to adjourn to a new place. he thought this inconvenient. the mutability of place had dishonored the federal gov^t and would require as strong a cure as we could devise. he thought a law at least should be made necessary to a removal of the seat of gov^t. m^r madison viewed the subject in the same light, and joined with m^r king in a motion requiring a law. mr. govern^r morris proposed the additional alteration by inserting the words, "during the session" &c. m^r spaight. this will fix the seat of gov^t at n. y. the present congress will convene them there in the first instance, and they will never be able to remove, especially if the presid^t should be [a] northern man. m^r gov^r morris such a distrust is inconsistent with all gov^t. m^r madison supposed that a central place for the seat of gov^t was so just and w^d be so much insisted on by the h. of representatives, that though a law should be made requisite for the purpose, it could & would be obtained. the necessity of a central residence of the gov^t w^d be much greater under the new than old gov^t. the members of the new gov^t w^d be more numerous. they would be taken more from the interior parts of the states; they w^d not like members of y^e present cong^s come so often from the distant states by water. as the powers & objects of the new gov^t would be far greater y^e heretofore, more private individuals w^d have business calling them to the seat of it, and it was more necessary that the gov^t should be in that position from which it could contemplate with the most equal eye, and sympathize most equally with, every part of the nation. these considerations he supposed would extort a removal even if a law were made necessary. but in order to quiet suspicions both within & without doors, it might not be amiss to authorize the 2 houses by a concurrent vote to adjourn at their first meeting to the most proper place, and to require thereafter, the sanction of a law to their removal. the motion was accordingly moulded into the following form: "the legislature shall at their first assembling determine on a place at which their future sessions shall be held; neither house shall afterwards, during the session of the house of rep^s without the consent of the other, adjourn for more than three days, nor shall they adjourn to any other place than such as shall have been fixt by law." m^r gerry thought it would be wrong to let the presid^t check the will of the 2 houses on this subject at all. m^r williamson supported the ideas of m^r spaight. m^r carrol was actuated by the same apprehensions. m^r mercer, it will serve no purpose to require the two houses at their first meeting to fix on a place. they will never agree. after some further expressions from others denoting an apprehension that the seat of gov^t might be continued at an improper place if a law should be made necessary to a removal, and the motion above stated with another for recommitting the section had been negatived, the section was left in the shape in which it was reported as to this point. the words, "during the session of the legislature" were prefixed to the 8^{th} section--and the last sentence "but this regulation shall not extend to the senate when it shall exercise the powers mentioned in the ---article" struck out. the 8^{th} section as amended was then agreed to. m^r randolph moved according to notice to reconsider art: iv. sect. 5. concerning money bills which had been struck out. he argued 1. that he had not wished for this privilege whilst a proportional representation in the senate was in contemplation, but since an equality had been fixed in that house, the large states would require this compensation at least. 2. that it would make the plan more acceptable to the people, because they will consider the senate as the more aristocratic body, and will expect that the usual guards ag^{st} its influence be provided according to the example in g. britain. 3. the privilege will give some advantage to the house of rep^s if it extends to the originating only--but still more if it restrains the senate from amend^g. 4. he called on the smaller states to concur in the measure, as the condition by which alone the compromise had entitled them to an equality in the senate. he signified that he should propose instead of the original section, a clause specifying that the bills in question should be for the purpose of revenue, in order to repel y^e objection ag^{st} the extent of the words, "_raising money_," which might happen incidentally, and that the senate should not so amend or alter as to increase or diminish the sum; in order to obviate the inconveniences urged ag^{st} a restriction of the senate to a simple affirmation or negative. m^r williamson 2^{ded} the motion. m^r pinkney was sorry to oppose the opportunity gentlemen asked to have the question again opened for discussion, but as he considered it a mere waste of time he could not bring himself to consent to it. he said that notwithstanding what had been said as to the compromise, he always considered this section as making no part of it. the rule of representation in the 1^{st} branch was the true condition of that in the 2^d branch.--several others spoke for & ag^{st} the reconsideration, but without going into the merits.--on the question to reconsider n. h. ay. mass. ay. c^t ay. n. j.[22] ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. div^d. geo. ay.--monday was then assigned- [22] in the printed journal n. jersey--no.--madison's note. adj^d.[23] [23] the next day being sunday, madison wrote to his father: "philad^a aug^{st} 12, 1787. "hon^d sir "i wrote to you lately inclosing a few newspapers. i now send a few more, not because they are interesting but because they may supply the want of intelligence that might be more so. the convention reassembled at the time my last mentioned that they had adjourned to. it is not possible yet to determine the period to which the session will be spun out. it must be some weeks from this date at least, and possibly may be computed by months. eleven states are on the ground, and have generally been so since the second or third week of the session. rhode island is one of the absent states. she has never yet appointed deputies. n. h. till of late was the other. that state is now represented. but just before the arrival of her deputies, those of n. york left us.--we have till within a few days had very cool weather. it is now pleasant, after a fine rain. our acc^{ts} from virg^a give us but an imperfect idea of the prospects with you. in particular places the drouth we hear has been dreadful. gen^l washington's neighbourhood is among the most suffering of them. i wish to know how your neighbourhood is off. but my chief anxiety is to hear that your health is re-established. the hope that this may procure me that information is the principal motive for writing it, having as you will readily see not been led to it by any thing worth communicating. with my love to my mother & the rest of the family i remain dear sir "y^r aff^t son." (mad. mss.) edward carrington wrote to madison from new york, august 11, showing the solicitude of federalist members of congress: "... the president has been requested to write to the states unrepresented, pressing upon them the objects which require the attendance of their delegations, & urging them to come forward, amongst the objects is that of the report of the convention, which, it is supposed, is now in the state of parturition--this bantling must receive the blessing of congress this session, or, i fear, it will expire before the new one will assemble; every experiment has its critical stages which must be taken as they occur, or the whole will fail--the peoples expectations are rising with the progress of this work, but will desert it, should it remain long with congress--permit me to suggest one idea as to the mode of obtaining the accession of the states to the new plan of government--let the convention appoint _one_ day, say the 1^{st} of may, upon which a convention appointed by the people shall be held in each state, for the purpose of accepting or rejecting in toto, the project--supposing an act of the ordinary legislatures to be equally authentic, which would not be true, yet many reasons present themselves in favor of--special conventions--many men would be admitted who are excluded from the legislatures--the business would be taken up unclogged with any other--and it would effectually call the attention of all the people to the object as seriously affecting them. all the states being in convention at the same time, opportunities of speculating upon the views of each other would be cut off--the project should be decided upon without an attempt to alter it--you have doubtless found it difficult to reconcile the different opinions in your body--will it not be impossible then, to reconcile those which will arise amongst numerous assemblies in the different states? it is possible there never may be a general consent to the project as it goes out; but it is absolutely certain there will never be an agreement in amendments. it is the lot of but few to be able to discern the remote principles upon which their happiness & prosperity essentially depend--."--(mad. mss.) monday, aug^{st} 13. in convention art. iv. sect. 2. reconsidered-m^r wilson & m^r randolph moved to strike out "7 years" and insert "4 years," as the requisite term of citizenship to qualify for the house of rep^s. m^r wilson said it was very proper the electors should govern themselves by this consideration; but unnecessary & improper that the constitution should chain them down to it. m^r gerry wished that in future the eligibility might be confined to natives. foreign powers will intermeddle in our affairs, and spare no expence to influence them. persons having foreign attachments will be sent among us & insinuated into our councils, in order to be made instruments for their purposes. every one knows the vast sums laid out in europe for secret services. he was not singular in these ideas. a great many of the most influential men in mass^{ts} reasoned in the same manner. m^r williamson moved to insert 9 years instead of seven. he wished this country to acquire as fast as possible national habits. wealthy emigrants do more harm by their luxurious examples, than good, by the money, they bring with them. col. hamilton was in general ag^{st} embarrassing the gov^t with minute restrictions. there was on one side the possible danger that had been suggested. on the other side, the advantage of encouraging foreigners was obvious & admitted. persons in europe of moderate fortunes will be fond of coming here where they will be on a level with the first citizens. he moved that the section be so altered as to require merely citizenship & inhabitancy. the right of determining the rule of naturalization will then leave a discretion to the legislature on this subject which will answer every purpose. m^r madison seconded the motion. he wished to maintain the character of liberality which had been professed in all the constitutions & publications of america. he wished to invite foreigners of merit & republican principles among us. america was indebted to emigration for her settlement & prosperity. that part of america which had encouraged them most had advanced most rapidly in population, agriculture & the arts. there was a possible danger he admitted that men with foreign predilections might obtain appointments but it was by no means probable that it would happen in any dangerous degree. for the same reason that they would be attached to their native country, our own people w^d prefer natives of this country to them. experience proved this to be the case. instances were rare of a foreigner being elected by the people within any short space after his coming among us. if bribery was to be practised by foreign powers, it would not be attempted among the electors but among the elected, and among natives having full confidence of the people not among strangers who would be regarded with a jealous eye. m^r wilson cited pennsylv^a as a proof of the advantage of encouraging emigrations. it was perhaps the youngest (except georgia) settlem^t on the atlantic; yet it was at least among the foremost in population & prosperity. he remarked that almost all the gen^l officers of the pen^a line of the late army were foreigners. and no complaint had ever been made against their fidelity or merit. three of her deputies to the convention (m^r r. morris, m^r fitzsimons & himself) were also not natives. he had no objection to col. hamilton's motion & would withdraw the one made by himself. m^r butler was strenuous ag^{st} admitting foreigners into our public councils. question on col. hamilton's motion n. h. no. mass. no. c^t ay. n. j. no. p^a ay. del. no. md. ay. v^a ay. n. c. no. s. c. no. geo. no. question on m^r williamson's motion to insert 9 years instead of seven. n. h. ay. mass^{ts} no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. m^r wilson renewed the motion for 4 years instead of 7; & on question n. h. no. mass. no. c^t ay. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. m^r gov^r morris moved to add to the end of the section (art iv. s. 2) a proviso that the limitation of seven years should not affect the rights of any person now a citizen. m^r mercer 2^{ded} the motion. it was necessary he said to prevent a disfranchisement of persons who had become citizens under and on the faith & according to the laws & constitution from being on a level in all respects with natives. m^r rutlidge. it might as well be said that all qualifications are disfranchisem^{ts} and that to require the age of 25 years was a disfranchisement. the policy of the precaution was as great with regard to foreigners now citizens; as to those who are to be naturalized in future. m^r sherman. the u. states have not invited foreigners nor pledged their faith that they should enjoy equal privileges with native citizens. the individual states alone have done this. the former therefore are at liberty to make any discriminations they may judge requisite. m^r ghorum. when foreigners are naturalized it w^d seem as if they stand on an equal footing with natives. he doubted then the propriety of giving a retrospective force to the restriction. m^r madison animadverted on the peculiarity of the doctrine of m^r sherman. it was a subtilty by which every national engagement might be evaded. by parity of reason, whenever our public debts, or foreign treaties become inconvenient nothing more would be necessary to relieve us from them, than to new model the constitution. it was said that the _u. s._ as such have not pledged their faith to the naturalized foreigners, & therefore are not bound. be it so, & that the states alone are bound. who are to form the new constitution by which the condition of that class of citizens is to be made worse than the other class? are not the states y^e agents? will they not be the members of it? did they not appoint this convention? are not they to ratify its proceedings? will not the new constitution be their act? if the new constitution then violates the faith pledged to any description of people will not the makers of it, will not the states, be the violaters? to justify the doctrine it must be said that the states can get rid of their obligation by revising the constitution, though they could not do it by repealing the law under which foreigners held their privileges. he considered this a matter of real importance. it would expose us to the reproaches of all those who should be affected by it, reproaches which w^d soon be echoed from the other side of the atlantic; and would unnecessarily enlist among the adversaries of the reform a very considerable body of citizens: we should moreover reduce every state to the dilemma of rejecting it or of violating the faith pledged to a part of its citizens. m^r gov^r morris considered the case of persons under 25 years, as very different from that of foreigners. no faith could be pleaded by the former in bar of the regulation. no assurance had ever been given that persons under that age should be in all cases on a level with those above it. but with regard to foreigners among us, the faith had been pledged that they should enjoy the privileges of citizens. if the restriction as to age had been confined to natives, & had left foreigners under 25 years, eligible in this case, the discrimination w^d have been an equal injustice on the other side. m^r pinkney remarked that the laws of the states had varied much the terms of naturalization in different parts of america; and contended that the u. s. could not be bound to respect them on such an occasion as the present. it was a sort of recurrence to first principles. col. mason was struck not like (mr. madison) with the _peculiarity_, but the _propriety_ of the doctrine of m^r sherman. the states have formed different qualifications themselves, for enjoying different rights of citizenship. greater caution w^d be necessary in the outset of the gov^t than afterwards. all the great objects w^d then be provided for. every thing would be then set in motion. if persons among us attached to g. b. should work themselves into our councils, a turn might be given to our affairs & particularly to our commercial regulations which might have pernicious consequences. the great houses of british merchants will spare no pains to insinuate the instruments of their views into the gov^t. m^r wilson read the clause in the constitution of pen^a giving to foreigners after two years residence all the rights whatsoever of citizens. combined it with the article of confederation making the citizens of one state citizens of all, inferred the obligation pen^a was under to maintain the faith thus pledged to her citizens of foreign birth, and the just complaints which her failure would authorize: he observed likewise that the princes & states of europe would avail themselves of such breach of faith to deter their subjects from emigration to the u. s. m^r mercer enforced the same idea of a breach of faith. m^r baldwin could not enter into the force of the arguments ag^{st} extending the disqualification to foreigners now citizens. the discrimination of the place of birth, was not more objectionable than that of age which all had concurred in the propriety of. question on the proviso of m^r gov^r morris in favor of foreigners now citizens n. h. no. mass. no. c^t ay. n. j. ay. p^a ay. del. no. mary^d ay. v^t ay. n. c. no. s. c. no. geo. no. m^r carrol moved to insert "5 years" instead of "seven" in sect. 2^d art: iv n. h. no. mass. no. c^t ay. n. j. no. p^a div^d. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. the section (art iv. sec. 2.) as formerly amended was then agreed to nem. con. m^r wilson moved that (in art: v. sect. 3.) 9 years be reduced to seven, which was disag^d to and the 3^d section (art. v.) confirmed by the following vote. n. h. ay. mass. ay. c^t no. n. j. ay. p^a no. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. art. iv. sec. 5. being reconsidered. m^r randolph moved that the clause be altered so as to read--"bills for raising money for the _purpose of revenue_ or for appropriating the same shall originate in the house of representatives and shall not be so amended or altered by the senate as to increase or diminish the sum to be raised, or change the mode of levying it, or the object of its appropriation."--he would not repeat his reasons, but barely remind the members from the smaller states of the compromise by which the larger states were entitled to this privilege. col. mason. this amendment removes all the objections urged ag^{st} the section as it stood at first. by specifying _purposes of revenue_, it obviated the objection that the section extended to all bills under which money might incidentally arise. by authorizing amendments in the senate it got rid of the objections that the senate could not correct errors of any sort, & that it would introduce into the house of rep^s the practice of tacking foreign matter to money bills. these objections being removed, the arguments in favor of the proposed restraint on the senate ought to have their full force. 1. the senate did not represent the _people_, but the _states_ in their political character. it was improper therefore that it should tax the people. the reason was the same ag^{st} their doing it; as it had been ag^{st} cong^s doing it. nor was it in any respect necessary in order to cure the evils of our republican system. he admitted that notwithstanding the superiority of the republican form over every other, it had its evils. the chief ones, were the danger of the majority oppressing the minority, and the mischievous influence of demagogues. the gen^l government of itself will cure them. as the states will not concur at the same time in their unjust & oppressive plans, the general gov^t will be able to check & defeat them, whether they result from the wickedness of the majority, or from the misguidance of demagogues. again, the senate is not like the h. of rep^s chosen frequently and obliged to return frequently among the people. they are to be chosen by the sts for 6 years, will probably settle themselves at the seat of gov^t will pursue schemes for their own aggrandisement--will be able by weary^g out the h. of rep^s and taking advantage of their impatience at the close of a long session, to extort measures for that purpose. if they should be paid as he expected would be yet determined & wished to be so, out of the nat^l treasury, they will particularly extort an increase of their wages. a bare negative was a very different thing from that of originating bills. the practice in engl^d was in point. the house of lords does not represent nor tax the people, because not elected by the people. if the senate can originate, they will in the recess of the legislative sessions, hatch their mischievous projects, for their own purposes, and have their money bills ready cut & dried (to use a common phrase) for the meeting of the h. of rep^s. he compared the case to poyning's law--and signified that the house of rep^s might be rendered by degrees like the parliament of paris, the mere depository of the decrees of the senate. as to the compromise so much had passed on that subject that he would say nothing about it. he did not mean by what he had said to oppose the permanency of the senate. on the contrary he had no repugnance to an increase of it--nor to allowing it a negative, though the senate was not by its present constitution entitled to it. but in all events he would contend that the purse-strings should be in the hands of the representatives of the people. m^r wilson was himself directly opposed to the equality of votes granted to the senate by its present constitution. at the same time he wished not to multiply the vices of the system. he did not mean to enlarge on a subject which had been so much canvassed, but would remark that as an insuperable objection ag^{st} the proposed restriction of money bills to the h. of rep^s that it would be a source of perpetual contentions where there was no mediator to decide them. the presid^t here could not like the executive magistrate in england interpose by a prorogation, or dissolution. this restriction had been found pregnant with altercation in every state where the constitution had established it. the house of rep^s will insert other things in money bills, and by making them conditions of each other, destroy the deliberate liberty of the senate. he stated the case of a preamble to a money bill sent up by the house of commons in the reign of queen anne, to the h. of lords, in which the conduct of the displaced ministry, who were to be impeached before the lords, was condemned; the co[~m]ons thus extorting a premature judgm^t without any hearing of the parties to be tried, and the h. of lords being thus reduced to the poor & disgraceful expedient of opposing to the authority of a law, a protest on their journals ag^{st} its being drawn into precedent. if there was anything like poynings law in the present case, it was in the attempt to vest the exclusive right of originating in the h. of rep^s and so far he was ag^{st} it. he should be equally so if the right were to be exclusively vested in the senate. with regard to the purse strings, it was to be observed that the purse was to have two strings, one of which was in the hands of the h. of rep^s the other in those of the senate. both houses must concur in untying, and of what importance could it be which untied first, which last. he could not conceive it to be any objection to the senate's preparing the bills, that they would have leisure for that purpose and would be in the habits of business. war, commerce, & revenue were the great objects of the gen^l government. all of them are connected with money. the restriction in favor of the h. of represent^s would exclude the senate from originating any important bills whatever-m^r gerry considered this as a part of the plan that would be much scrutinized. taxation & representation are strongly associated in the minds of the people, and they will not agree that any but their immediate representatives shall meddle with their purses. in short the acceptance of the plan will inevitably fail, if the senate be not restrained from originating money bills. m^r govern^r morris. all the arguments suppose the right to originate & to tax, to be exclusively vested in the senate.--the effects commented on may be produced by a negative only in the senate. they can tire out the other house, and extort their concurrence in favorite measures, as well by withholding their negative, as by adhering to a bill introduced by themselves. m^r madison thought if the substitute offered by m^r randolph for the original section is to be adopted it would be proper to allow the senate at least so to amend as to _diminish_ the sums to be raised. why should they be restrained from checking the extravagance of the other house? one of the greatest evils incident to republican gov^t was the spirit of contention & faction. the proposed substitute, which in some respects lessened the objections ag^{st} the section, had a contrary effect with respect to this particular. it laid a foundation for new difficulties and disputes between the two houses. the word _revenue_ was ambiguous. in many acts, particularly in the regulation of trade, the object would be twofold. the raising of revenue would be one of them. how could it be determined which was the primary or predominant one; or whether it was necessary that revenue sh^d be the sole object, in exclusion even of other incidental effects. when the contest was first opened with g. b. their power to regulate trade was admitted. their power to raise revenue rejected. an accurate investigation of the subject afterwards proved that no line could be drawn between the two cases. the words _amend or alter_ form an equal source of doubt & altercation. when an obnoxious paragraph shall be sent down from the senate to the house of rep^s, it will be called an origination under the name of an amendment. the senate may actually couch extraneous matter under that name. in these cases, the question will turn on the _degree_ of connection between the matter & object of the bill and the alteration or amendment offered to it. can there be a more fruitful source of dispute, or a kind of dispute more difficult to be settled? his apprehensions on this point were not conjectural. disputes had actually flowed from this source in virg^a where the senate can originate no bill. the words, "so as to _increase or diminish_ the sum to be raised," were liable to the same objections. in levying indirect taxes, which it seemed to be understood were to form the principal revenue of the new gov^t the sum to be raised, would be increased or diminished by a variety of collateral circumstances influencing the consumption, in general, the consumption of foreign or of domestic articles--of this or that particular species of articles and even by the mode of collection which may be closely connected with the productiveness of a tax.--the friends of the section had argued its necessity from the permanency of the senate. he could not see how this argum^t applied. the senate was not more permanent now than in the form it bore in the original propositions of m^r randolph and at the time when no objection whatever was hinted ag^{st} its originating money bills. or if in consequence of a loss of the present question, a proportional vote in the senate should be reinstated as has been urged as the indemnification the permanency of the senate will remain the same.--if the right to originate be vested exclusively in the house of rep^s either the senate must yield ag^{st} its judgment to that house, in which case the utility of the check will be lost--or the senate will be inflexible & the h. of rep^s must adapt its money bill to the views of the senate, in which case, the exclusive right will be of no avail.--as to the compromise of which so much had been said, he would make a single observation. there were 5 states which had opposed the equality of votes in the senate, viz, mass^{ts}. penn^a virg^a n. carolina & south carol^a. as a compensation for the sacrifice extorted from them on this head, the exclusive origination of money bills in the other house had been tendered. of the five states a majority viz. penn^a virg^a & s. carol^a have uniformly voted ag^{st} the proposed compensation, on its own merits, as rendering the plan of gov^t still more objectionable. mass^{ts} has been divided. n. carolina alone has set a value on the compensation, and voted on that principle. what obligation then can the small states be under to concur ag^{st} their judgments in reinstating the section? m^r dickenson. experience must be our only guide. reason may mislead us. it was not reason that discovered the singular & admirable mechanism of the english constitution. it was not reason that discovered or ever could have discovered the odd & in the eye of those who are governed by reason, the absurd mode of trial by jury. accidents probably produced these discoveries, and experience has given a sanction to them. this is then our guide. and has not experience verified the utility of restraining money bills to the immediate representatives of the people. whence the effect may have proceeded he could not say: whether from the respect with which this privilege inspired the other branches of gov^t to the h. of co[~m]ons, or from the turn of thinking it gave to the people at large with regard to their rights, but the effect was visible & could not be doubted--shall we oppose to this long experience, the short experience of 11 years which we had ourselves, on this subject. as to disputes, they could not be avoided any way. if both houses should originate, each would have a different bill to which it would be attached, and for which it would contend.--he observed that all the prejudices of the people would be offended by refusing this exclusive privilege to the h. of repres^s and these prejudices sh^d never be disregarded by us when no essential purpose was to be served. when this plan goes forth it will be attacked by the popular leaders. aristocracy will be the watchword; the shiboleth among its adversaries. eight states have inserted in their constitutions the exclusive right of originating money bills in favor of the popular branch of the legislature. most of them however allowed the other branch to amend. this he thought would be proper for us to do. m^r randolph regarded this point as of such consequence, that as he valued the peace of this country, he would press the adoption of it. we had numerous & monstrous difficulties to combat. surely we ought not to increase them. when the people behold in the senate, the countenance of an aristocracy; and in the president, the form at least of a little monarch, will not their alarms be sufficiently raised without taking from their immediate representatives, a right which has been so long appropriated to them.--the executive will have more influence over the senate, than over the h. of rep^s allow the senate to originate in this case, & that influence will be sure to mix itself in their deliberations & plans. the declaration of war he conceived ought not to be in the senate composed of 26 men only, but rather in the other house. in the other house ought to be placed the origination of the means of war. as to commercial regulations which may involve revenue, the difficulty may be avoided by restraining the definition to bills, for the _mere_ or _sole_, purpose of raising revenue. the senate will be more likely to be corrupt than the h. of rep^s and should therefore have less to do with money matters. his principal object however was to prevent popular objections against the plan, and to secure its adoption. m^r rutlidge. the friends of this motion are not consistent in their reasoning. they tell us that we ought to be guided by the long experience of g. b. & not our own experience of 11 years; and yet they themselves propose to depart from it. the _h. of co[~m]ons_ not only have the exclusive right of originating, but the _lords_ are not allowed to alter or amend a money bill. will not the people say that this restriction is but a mere tub to the whale. they cannot but see that it is of no real consequence; and will be more likely to be displeased with it as an attempt to bubble them, than to impute it to a watchfulness over their rights. for his part, he would prefer giving the exclusive right to the senate, if it was to be given exclusively at all. the senate being more conversant in business, and having more leisure, will digest the bills much better, and as they are to have no effect, till examined & approved by the h. of rep^s there can be no possible danger. these clauses in the constitutions of the states had been put in through a blind adherence to the british model. if the work was to be done over now, they would be omitted. the experiment in s. carolina, where the senate can originate or amend money bills, has shewn that it answers no good purpose; and produces the very bad one of continually dividing & heating the two houses. sometimes indeed if the matter of the amendment of the senate is pleasing to the other house they wink at the encroachment; if it be displeasing, then the constitution is appealed to. every session is distracted by altercations on this subject. the practice now becoming frequent is for the senate not to make formal amendments; but to send down a schedule of the alterations which will procure the bill their assent. m^r carrol. the most ingenious men in mary^d are puzzled to define the case of money bills, or explain the constitution on that point, tho it seemed to be worded with all possible plainness & precision. it is a source of continual difficulty & squabble between the two houses. m^r mchenry[24] mentioned an instance of extraordinary subterfuge, to get rid of the apparent force of the constitution. [24] "mr. mchenry was bred a physician, but he afterwards turned soldier and acted as aid to gen^l washington and the marquis de la fayette. he is a man of specious talents, with nothing of genious to improve them. as a politician there is nothing remarkable in him, nor has he any of the graces of the orator. he is however, a very respectable young gentleman, and deserves the honor which his country has bestowed on him. mr. mchenry is about 32 years of age."--pierce's notes, _am. hist. rev._, iii., 330. on question on the first part of the motion as to the exclusive originating of money bills in the h. of rep^s n. h. ay. mass. ay. c^t no. n. j. no. p^a no. del. no. m^d no. virg^a ay. m^r blair & m^r m. no. m^r r, col. mason and gen^l washington[25] ay. n. c. ay. s. c. no. geo. no. [25] he disapproved & till now voted ag^{st} the exclusive privilege, he gave up his judgment he said because it was not of very material weight with him & was made an essential point with others who if disappointed, might be less cordial in other points of real weight.--madison's note. question on originating by h. of rep^s & _amending_ by senate, as reported art iv. sect. 5. n. h. ay. mass. ay. c^t no. n. j. no. p^a no. del. no. m^d no. v^a[26] ay. n. c. ay. s. c. no. geo. no. [26] in the printed journ virg^a--no.--madison's note. question on the last clause of sect. 5, art: iv--viz "no money shall be drawn from the public treasury, but in pursuance of _appropriations_ that shall originate in the house of rep^s. it passed in the negative- n. h. no. mas. ay. con. no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. adj^d. tuesday aug. 14[27]. in convention [27] general henry knox wrote to washington from new york under date of august 14th: "influenced by motives of delicacy i have hitherto forborne the pleasure my dear sir of writing to you since my return from philadelphia. "i have been apprehensive that the stages of the business of the convention, might leak out, and be made an ill use of, by some people. i have therefore been anxious that you should escape the possibility of imputation. but as the subjects seem now to be brought to a point, i take the liberty to indulge myself in communicating with you. "although i frankly confess that the existence of the state governments is an insuperable evil in a national point of view, yet i do not well see how in this stage of the business they could be annihilated--and perhaps while they continue the frame of government could not with propriety be much higher toned than the one proposed. it is so infinitely preferable to the present constitution, and gives such a bias to a proper line of conduct in future that i think all men anxious for a national government should zealously embrace it. "the education, genius, and habits of men on this continent are so various even at this moment, and of consequence their views of the same subject so different, that i am satisfied with the result of the convention, although it is short of my wishes and of my judgment. "but when i find men of the purest intentions concur in embracing a system which on the highest deliberation, seems to be the best which can be obtained, under present circumstances, i am convinced of the propriety of its being strenuously supported by all those who have wished for a national republic of higher and more durable powers. "i am persuaded that the address of the convention to accompany their proposition will be couched in the most persuasive terms. "i feel anxious that there should be the fullest representation in congress, in order that the propositions should receive their warmest concurrence and strongest impulse...."--wash. mss. article vi. sect. 9. taken up. m^r pinkney argued that the making the members ineligible to offices was _degrading_ to them, and the more improper as their election into the legislature implied that they had the confidence of the people; that it was _inconvenient_, because the senate might be supposed to contain the fittest men. he hoped to see that body become a school of public ministers, a nursery of statesmen: that it was _impolitic_, because the legislature would cease to be a magnet to the first talents and abilities. he moved to postpone the section in order to take up the following proposition viz--"the members of each house shall be incapable of holding any office under the u. s. for which they or any of others for their benefit receive any salary, fees, or emoluments of any kind--and the acceptance of such office shall vacate their seats respectively." gen^s mifflin[28] 2^{ded} the motion. [28] "general mifflin is well known for the activity of his mind, and the brilliancy of his parts. he is well-informed and a graceful speaker. the general is about 40 years of age and a very handsome man."--pierce's notes, _am. hist. rev._, iii., 328. col. mason ironically proposed to strike out the whole section, as a more effectual expedient for encouraging that exotic corruption which might not otherwise thrive so well in the american soil--for compleating that aristocracy which was probably in the contemplation of some among us, and for inviting into the legislative service, those generous & benevolent characters who will do justice to each other's merit, by carving out offices & rewards for it. in the present state of american morals & manners, few friends it may be thought will be lost to the plan, by the opportunity of giving premiums to a mercenary & depraved ambition. m^r mercer. it is a first principle in political science, that whenever the rights of property are secured, an aristocracy will grow out of it. elective governments also necessarily become aristocratic, because the rulers being few can & will draw emoluments for themselves from the many. the governments of america will become aristocracies. they are so already. the public measures are calculated for the benefit of the governors, not of the people. the people are dissatisfied & complain. they change their rulers, and the public measures are changed, but it is only a change of one scheme of emolument to the rulers, for another. the people gain nothing by it, but an addition of instability & uncertainty to their other evils.--governm^{ts} can only be maintained by _force_ or _influence_. the executive has not _force_, deprive him of influence by rendering the members of the legislature ineligible to executive offices, and he becomes a mere phantom of authority. the aristocratic part will not even let him in for a share of the plunder. the legislature must & will be composed of wealth & abilities, and the people will be governed by a junto. the executive ought to have a council, being members of both houses. without such an influence, the war will be between the aristocracy & the people. he wished it to be between the aristocracy & the executive. nothing else can protect the people ag^{st} those speculating legislatures which are now plundering them throughout the u. states. m^r gerry read a resolution of the legislature of mass^{ts} passed before the act of cong^s recommending the convention, in which her deputies were instructed not to depart from the rotation established in the 5^{th} art: of confederation, nor to agree in any case to give to the members of cong^s a capacity to hold offices under the government. this he said was repealed in consequence of the act of cong^s with which the state thought it proper to comply in an unqualified manner. the sense of the state however was still the same. he could not think with m^r pinkney that the disqualification was degrading. confidence is the road to tyranny. as to ministers & ambassadors few of them were necessary. it is the opinion of a great many that they ought to be discontinued, on our part; that none may be sent among us, & that source of influence be shut up. if the senate were to appoint ambassadors as seemed to be intended, they will multiply embassies for their own sakes. he was not so fond of those productions as to wish to establish nurseries for them. if they are once appointed, the house of rep^s will be obliged to provide salaries for them, whether they approve of the measures or not. if men will not serve in the legislature without a prospect of such offices, our situation is deplorable indeed. if our best citizens are actuated by such mercenary views we had better chuse a single despot at once. it will be more easy to satisfy the rapacity of one than of many. according to the idea of one gentleman (m^r mercer) our government it seems is to be a gov^t of plunder. in that case it certainly would be prudent to have but one rather than many to be employed in it. we cannot be too circumspect in the formation of this system. it will be examined on all sides and with a very suspicious eye. the people who have been so lately in arms ag^{st} g. b. for their liberties, will not easily give them up. he lamented the evils existing at present under our governments, but imputed them to the faults of those in office, not to the people. the misdeeds of the former will produce a critical attention to the opportunities afforded by the new system to like or greater abuses. as it now stands it is as compleat an aristocracy as ever was framed. if great powers should be given to the senate we shall be governed in reality by a junto as has been apprehended. he remarked that it would be very differently constituted from cong^s. 1. there will be but 2 deputies from each state, in cong^s there may be 7. and are generally 5.--2. they are chosen for six years, those of congress annually. 3. they are not subject to recall; those of cong^s are. 4. in congress 9 _states_ are necessary for all great purposes, here 8 _persons_ will suffice. is it to be presumed that the people will ever agree to such a system? he moved to render the members of the h. of rep^s as well as of the senate ineligible not only during, but for one year after the expiration of their terms.--if it should be thought that this will injure the legislature by keeping out of it men of abilities who are willing to serve in other offices it may be required as a qualification for other offices, that the candidate shall have served a certain time in the legislature. m^r gov^r morris. exclude the officers of the army & navy, and you form a band having a different interest from & opposed to the civil power: you stimulate them to despise & reproach those "talking lords who dare not face the foe." let this spirit be roused at the end of a war, before your troops shall have laid down their arms, and though the civil authority "be intrenched in parchment to the teeth" they will cut their way to it. he was ag^{st} rendering the members of the legislature ineligible to offices. he was for rendering them eligible ag^n after having vacated their seats by accepting office. why should we not avail ourselves of their services if the people chuse to give them their confidence. there can be little danger of corruption either among the people or the legislatures who are to be the electors. if they say, we see their merits, we honor the men, we chuse to renew our confidence in them, have they not a right to give them a preference; and can they be properly abridged of it. m^r williamson; introduced his opposition to the motion by referring to the question concerning "money bills." that clause he said was dead. its ghost he was afraid would notwithstanding haunt us. it had been a matter of conscience with him, to insist upon it as long as there was hope of retaining it. he had swallowed the vote of rejection, with reluctance. he could not digest it. all that was said on the other side was that the restriction was not _convenient_. we have now got a house of lords which is to originate money-bills.--to avoid another _inconveniency_, we are to have a whole legislature at liberty to cut out offices for one another. he thought a self-denying ordinance for ourselves would be more proper. bad as the constitution has been made by expunging the restriction on the senate concerning money bills he did not wish to make it worse by expunging the present section. he had scarcely seen a single corrupt measure in the legislature of n. carolina, which could not be traced up to office hunting. m^r sherman. the constitution sh^d lay as few temptations as possible in the way of those in power. men of abilities will increase as the country grows more populous and as the means of education are more diffused. m^r pinkney. no state has rendered the members of the legislature ineligible to offices. in s. carolina the judges are eligible into the legislature. it cannot be supposed then that the motion will be offensive to the people. if the state constitutions should be revised he believed restrictions of this sort w^d be rather diminished than multiplied. m^r wilson could not approve of the section as it stood, and could not give up his judgment to any supposed objections that might arise among the people. he considered himself as acting & responsible for the welfare of millions not immediately represented in this house. he had also asked himself the serious question what he should say to his constituents in case they should call upon him to tell them why he sacrificed his own judgment in a case where they authorized him to exercise it? were he to own to them that he sacrificed it in order to flatter their prejudices, he should dread the retort: did you suppose the people of penn^a had not good sense enough to receive a good government? under this impression he should certainly follow his own judgment which disapproved of the section. he would remark in addition to the objections urged ag^{st} it, that as one branch of the legislature was to be appointed by the legislatures of the states, the other by the people of the states, as both are to be paid by the states, and to be appointable to state offices, nothing seemed to be wanting to prostrate the nat^l legislature, but to render its members ineligible to nat^l offices, & by that means take away its power of attracting those talents which were necessary to give weight to the govern^t and to render it useful to the people. he was far from thinking the ambition which aspired to offices of dignity and trust, an ignoble or culpable one. he was sure it was not politic to regard it in that light, or to withhold from it the prospect of those rewards, which might engage it in the career of public service. he observed that the state of penn^a which had gone as far as any state into the policy of fettering power, had not rendered the members of the legislature ineligible to offices of gov^t. m^r elsworth did not think the mere postponement of the reward would be any material discouragement of merit. ambitious minds will serve 2 years or 7 years in the legislature for the sake of qualifying themselves for other offices. this he thought a sufficient security for obtaining the services of the ablest men in the legislature, although whilst members they should be ineligible to public offices. besides, merit will be most encouraged, when most impartially rewarded. if rewards are to circulate only within the legislature, merit out of it will be discouraged. m^r mercer was extremely anxious on this point. what led to the appointment of this convention? the corruption & mutability of the legislative councils of the states. if the plan does not remedy these, it will not recommend itself; and we shall not be able in our private capacities to support & enforce it: nor will the best part of our citizens exert themselves for the purpose.--it is a great mistake to suppose that the paper we are to propose will govern the u. states. it is the men whom it will bring into the govern^t and interest in maintaining it that is to govern them. the paper will only mark out the mode & the form. men are the substance and must do the business. all gov^t must be by force or influence. it is not the king of france--but 200,000 janisaries of power that govern that kingdom. there will be no such force here; influence then must be substituted; and he would ask whether this could be done, if the members of the legislature should be ineligible to offices of state; whether such a disqualification would not determine all the most influential men to stay at home, & prefer appointments within their respective states. m^r wilson was by no means satisfied with the answer given by m^r elseworth to the argument as to the discouragement of merit. the members must either go a second time into the legislature, and disqualify themselves--or say to their constituents, we served you before only from the mercenary view of qualifying ourselves for offices, and have^g answered this purpose we do not chuse to be again elected. m^r gov^r morris put the case of a war, and the citizen the most capable of conducting it, happening to be a member of the legislature. what might have been the consequence of such a regulation at the commencement, or even in the course of the late contest for our liberties? on question for postponing in order to take up m^r pinkney's motion, it was lost, n. h. ay. mas. no. c^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. div^d. m^r gov^r morris moved to insert, after "office," except offices in the army or navy: but in that case their offices shall be vacated. m^r broom 2^{ds} him. m^r randolph had been & should continue uniformly opposed to the striking out of the clause; as opening a door for influence & corruption. no arguments had made any impression on him, but those which related to the case of war, and a co-existing incapacity of the fittest commanders to be employed. he admitted great weight in these, and would agree to the exception proposed by m^r gov^r morris. m^r butler & m^r pinkney urged a general postponem^t of 9. sect. art. vi. till it should be seen what powers would be vested in the senate, when it would be more easy to judge of the expediency of allowing the officers of state to be chosen out of that body.--a general postponement was agreed to nem. con. art: vi. sect. 10. taken up--"that members be paid by their respective states." m^r elseworth said that in reflecting on this subject he had been satisfied that too much dependence on the states would be produced by this mode of payment. he moved to strike it out and insert that they should "be paid out of the treasury of the u. s. an allowance not exceeding ([blank]) dollars per day or the present value thereof." m^r gov^r morris, remarked that if the members were to be paid by the states it would throw an unequal burden on the distant states, which would be unjust as the legislature, was to be a national assembly. he moved that the payment be out of the nat^l treasury; leaving the quantum to the discretion of the nat^l legislature. there could be no reason to fear that they would overpay themselves. m^r butler contended for payment by the states; particularly in the case of the senate, who will be so long out of their respective states, that they will lose sight of their constituents unless dependent on them for their support. m^r langdon was ag^{st} payment by the states. there would be some difficulty in fixing the sum; but it would be unjust to oblige the distant states to bear the expence of their members in travelling to and from the seat of gov^t. m^r madison. if the h. of rep^s is to be chosen _biennially_--and the senate to be _constantly_ dependent on the legislatures which are chosen _annually_, he could not see any chance for that stability in the gen^l gov^t the want of which was a principal evil in the state gov^{ts}. his fear was that the organization of the gov^t supposing the senate to be really independ^t for six years, would not effect our purpose. it was nothing more than a combination of the peculiarities of two of the state gov^{ts} which separately had been found insufficient. the senate was formed on the model of that of maryl^d. the revisionary check, on that of n. york. what the effect of a union of these provisions might be, could not be foreseen. the enlargement of the sphere of the government was indeed a circumstance which he thought would be favorable as he had on several occasions undertaken to show. he was however for fixing at least two extremes not to be exceeded by the nat^l legisl^{re} in the payment of themselves. m^r gerry. there are difficulties on both sides. the observation of m^r butler has weight in it. on the other side, the state legislatures may turn out the senators by reducing their salaries. such things have been practised. col. mason. it has not yet been noticed that the clause as it now stands makes the house of represent^s also dependent on the state legislatures: so that both houses will be made the instruments of the politics of the states whatever they may be. m^r broom could see no danger in trusting the gen^l legislature with the payment of themselves. the state legislatures had this power, and no complaint had been made of it. m^r sherman was not afraid that the legislature would make their own wages too high; but too low, so that men ever so fit could not serve unless they were at the same time rich. he thought the best plan would be to fix a moderate allowance to be paid out of the nat^l treas^y and let the states make such additions as they might judge fit. he moved that 5 dollars per day be the sum, any further emoluments to be added by the states. m^r carrol had been much surprised at seeing this clause in the report. the dependence of both houses on the state legislatures is compleat; especially as the members of the former are eligible to state offices. the states can now say: if you do not comply with our wishes, we will starve you; if you do we will reward you. the new gov^t in this form was nothing more than a second edition of congress in two volumes, instead of one, and perhaps with very few amendments-m^r dickenson took it for granted that all were convinced of the necessity of making the gen^l gov^t independent of the prejudices, passions, and improper views of the state legislatures. the contrary of this was effected by the section as it stands. on the other hand there were objections ag^{st} taking a permanent standard as wheat which had been suggested on a former occasion, as well as against leaving the matter to the pleasure of the nat^l legislature. he proposed that an act should be passed every 12 years by the nat^l legisl^{re} settling the quantum of their wages. if the gen^l gov^t should be left dependent on the state legislatures, it would be happy for us if we had never met in this room. m^r elseworth was not unwilling himself to trust the legislature with authority to regulate their own wages, but well knew that an unlimited discretion for that purpose would produce strong, tho' perhaps not insuperable objections. he thought changes in the value of money, provided for by his motion in the words, "or the present value thereof." m^r l. martin. as the senate is to represent the states, the members of it ought to be paid by the states. m^r carrol. the senate was to represent & manage the affairs of the whole, and not to be the advocates of state interests. they ought then not to be dependent on nor paid by the states. on the question for paying the members of the legislature out of the nat^l treasury, n. h. ay. mass. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. m^r elseworth moved that the pay be fixed at 5 doll^{rs} or the present value thereof per day during their attendance & for every thirty miles in travelling to & from congress. m^r strong preferred 4 dollars, leaving the sts. at liberty to make additions. on question for fixing the pay at 5 dollars. n. h. no. mass. no. c^t ay. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. m^r dickenson proposed that the wages of the members of both houses s^d be required to be the same. m^r broome seconded him. m^r ghorum. this would be unreasonable. the senate will be detained longer from home, will be obliged to remove their families, and in time of war perhaps to sit constantly. their allowance should certainly be higher. the members of the senates in the states are allowed more, than those of the other house. m^r dickenson withdrew his motion. it was moved & agreed to amend the section by adding--"to be ascertained by law." the section (art. vi. sect. 10) as amended, agreed to nem. con. adj^d. wednesday august 15. in convention. art: vi. sect. 11. agreed to nem. con. art: vi. sect 12. taken up. m^r strong moved to amend the article so as to read--"each house shall possess the right of originating all bills, except bills for raising money for the purposes of revenue, or for appropriating the same and for fixing the salaries of the officers of the gov^t which shall originate in the house of representatives; but the senate may propose or concur with amendments as in other cases". col. mason, 2^{ds} the motion. he was extremely earnest to take this power from the senate, who he said could already sell the whole country by means of treaties. m^r ghorum urged the amendment as of great importance. the senate will first acquire the habit of preparing money bills, and then the practice will grow into an exclusive right of preparing them. m^r govern^r morris opposed it as unnecessary and inconvenient. m^r williamson, some think this restriction on the senate essential to liberty, others think it of no importance. why should not the former be indulged. he was for an efficient and stable gov^t: but many would not strengthen the senate if not restricted in the case of money bills. the friends of the senate would therefore lose more than they would gain by refusing to gratify the other side. he moved to postpone the subject till the powers of the senate should be gone over. m^r rutlidge 2^{ds} the motion. m^r mercer should hereafter be ag^{st} returning to a reconsideration of this section. he contended (alluding to m^r mason's observations) that the senate ought not to have the power of treaties. this power belonged to the executive department; adding that treaties would not be final so as to alter the laws of the land, till ratified by legislative authority. this was the case of treaties in great britain; particularly the late treaty of co[~m]erce with france. col. mason, did not say that a treaty would repeal a law; but that the senate by means of treaty might alienate territory &c., without legislative sanction. the cessions of the british islands in w. indies by treaty alone were an example. if spain should possess herself of georgia therefore the senate might by treaty dismember the union. he wished the motion to be decided now, that the friends of it might know how to conduct themselves. on the question for postponing sect: 12. it passed in the affirmative. n. h. ay. mass. ay. c^t no. n. j. no. pen^a no. del: no. mary^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r madison moved that all acts before they become laws should be submitted both to the executive and supreme judiciary departments, that if either of these should object 2/3 of each house, if both should object, 3/4 of each house, should be necessary to overrule the objections and give to the acts the force of law.[29] [29] madison's note says: "see the motion at large in the journal of this date, page 253, and insert it here." the journal gives it as follows: "it was moved by mr. madison, and seconded, to agree to the following amendment of the thirteenth section of the sixth article: "every bill which shall have passed the two houses, shall, before it become a law, be severally presented to the president of the united states, and to the judges of the supreme court for the revision of each. if, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both, to be passed into a law, it shall be returned, with the objections against it, to that house, in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider the bill: but if, after such reconsideration, two thirds of that house, when either the president, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other house, by which it shall likewise be reconsidered; and, if approved by two thirds, or three fourths of the other house, as the case may be, it shall become a law." m^r wilson seconds the motion. m^r pinkney opposed the interference of the judges in the legislative business: it will involve them in parties, and give a previous tincture to their opinions. m^r mercer heartily approved the motion. it is an axiom that the judiciary ought to be separate from the legislative; but equally so that it ought to be independent of that department. the true policy of the axiom is that legislative usurpation and oppression may be obviated. he disapproved of the doctrine that the judges as expositors of the constitution should have authority to declare a law void. he thought laws ought to be well and cautiously made, and then to be uncontroulable. m^r gerry. this motion comes to the same thing with what has been already negatived. question on the motion of m^r madison n. h. no. mass. no. c^t no. n. j. no. p^a no. del. ay. mary^d ay. virg^a ay. n. c. no. s. c. no. geo. no. m^r gov^r morris regretted that something like the proposed check could not be agreed to. he dwelt on the importance of public credit, and the difficulty of supporting it without some strong barrier against the instability of legislative assemblies. he suggested the idea of requiring three fourths of each house to _repeal_ laws where the president should not concur. he had no great reliance on the revisionary power as the executive was now to be constituted (elected by congress.) the legislature will contrive to soften down the president. he recited the history of paper emissions, and the perseverance of the legislative assemblies in repeating them, with all the distressing effects of such measures before their eyes. were the national legislature formed, and a war was now to break out, this ruinous expedient would be again resorted to, if not guarded against. the requiring 3/4 to repeal would, though not a compleat remedy, prevent the hasty passage of laws, and the frequency of those repeals which destroy faith in the public, and which are among our greatest calamities. m^r dickenson was strongly impressed with the remark of m^r mercer as to the power of the judges to set aside the law. he thought no such power ought to exist. he was at the same time at a loss what expedient to substitute. the justiciary of arragon he observed became by degrees the lawgiver. m^r gov^r morris, suggested the expedient of an absolute negative in the executive. he could not agree that the judiciary which was part of the executive, should be bound to say that a direct violation of the constitution was law. a controul over the legislature might have its inconveniences. but view the danger on the other side. the most virtuous citizens will often as members of a legislative body concur in measures which afterwards in their private capacity they will be ashamed of. encroachments of the popular branch of the government ought to be guarded ag^{st}. the ephori at sparta became in the end absolute. the report of the council of censors in pennsylv^a points out the many invasions of the legislative department on the executive numerous as the latter[30] is, within the short term of seven years, and in a state where a strong party is opposed to the constitution, and watching every occasion of turning the public resentments ag^{st} it. if the executive be overturned by the popular branch, as happened in england, the tyranny of one man will ensue. in rome where the aristocracy overturned the throne, the consequence was different. he enlarged on the tendency of the legislative authority to usurp on the executive and wished the section to be postponed, in order to consider of some more effectual check than requiring 2/3 only to overrule the negative of the executive. [30] the executive consists at this time of ab^t 20 members.--madison's note. m^r sherman. can one man be trusted better than all the others if they all agree? this was neither wise nor safe. he disapproved of judges meddling in politics and parties. we have gone far enough in forming the negative as it now stands. m^r carrol. when the negative to be overruled by 2/3 only was agreed to, the _quorum_ was not fixed. he remarked that as a majority was now to be the quorum, 17. in the larger, and 8 in the smaller house might carry points. the advantage that might be taken of this seemed to call for greater impediments to improper laws. he thought the controuling power however of the executive could not be well decided, till it was seen how the formation of that department would be finally regulated. he wished the consideration of the matter to be postponed. m^r ghorum saw no end to these difficulties and postponements. some could not agree to the form of government before the powers were defined. others could not agree to the powers till it was seen how the government was to be formed. he thought a majority as large a quorum as was necessary. it was the quorum almost every where fixt in the u. states. m^r wilson; after viewing the subject with all the coolness and attention possible was most apprehensive of a dissolution of the gov^t from the legislature swallowing up all the other powers. he remarked that the prejudices ag^{st} the executive resulted from a misapplication of the adage that the parliament was the palladium of liberty. where the executive was really formidable, _king_ and _tyrant_, were naturally associated in the minds of people; not _legislature_ and _tyranny_. but where the executive was not formidable, the two last were most properly associated. after the destruction of the king in great britain, a more pure and unmixed tyranny sprang up in the parliament than had been exercised by the monarch. he insisted that we had not guarded ag^{st} the danger on this side by a sufficient self-defensive power either to the executive or judiciary department. m^r rutlidge was strenuous ag^{st} postponing; and complained much of the tediousness of the proceedings. m^r elseworth held the same language. we grow more & more sceptical as we proceed. if we do not decide soon, we shall be unable to come to any decision. the question for postponement passed in the negative: del: & mary^d only being in the affirmative. m^r williamson moved to change, "2/3 of each house" into "3/4" as requisite to overrule the dissent of the president. he saw no danger in this, and preferred giving the power to the presid^t alone, to admitting the judges into the business of legislation. m^r wilson 2^{ds} the motion; referring to and repeating the ideas of m^r carroll. on this motion for 3/4, instead of two-thirds; it passed in the affirmative. n. h. no. mass. no. c^t ay. n. j. no. pen^a div^d. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. m^r madison, observing that if the negative of the president was confined to _bills_; it would be evaded by acts under the form and name of resolutions, votes &c., proposed that "or resolve" should be added after "_bill_" in the beginning of sect 13. with an exception as to votes of adjournment &c. after a short and rather confused conversation on the subject, the question was put & rejected, the states being as follows, n. h. no. mass. ay. c^t no. n. j. no. pen^a no. del. ay. m^d no. v^a no. n. c. ay. s. c. no. geo. no. "_ten_ days (sundays excepted)" instead of "_seven_" were allowed to the president for returning bills with his objections n. h. & mas: only voting ag^{st} it. the 13 sect: of art. vi as amended was then agreed to. adjourned. thursday. august 16. in convention. m^r randolph having thrown into a new form the motion putting votes, resolutions &c. on a footing with bills, renewed it as follows--"every order resolution or vote, to which the concurrence of the senate & house of rep^s may be necessary (except on a question of adjournment and in the cases hereinafter mentioned) shall be presented to the president for his revision; and before the same shall have force shall be approved by him, or being disapproved by him shall be repassed by the senate & house of rep^s according to the rules & limitations prescribed in the case of a bill." m^r sherman thought it unnecessary, except as to votes taking money out of the treasury which might be provided for in another place. on question as moved by m^r randolph n. h. ay. mass. not present. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. the amendment was made section 14. of art. vi. art: vii. sect. 1. taken up. m^r l. martin asked what was meant by the committee of detail in the expression,--"_duties_" and "_imposts_." if the meaning were the same, the former was unnecessary; if different, the matter ought to be made clear. m^r wilson. _duties_ are applicable to many objects to which the word _imposts_ does not relate. the latter are appropriated to commerce; the former extend to a variety of objects, as stamp duties &c. m^r carroll reminded the convention of the great difference of interests among the states, and doubts the propriety in that point of view of letting a majority be a quorum. m^r mason urged the necessity of connecting with the power of levying taxes duties &c., the prohibition in sect. 4 art. vi that no tax should be laid on exports. he was unwilling to trust to its being done in a future article. he hoped the north^n states did not mean to deny the southern this security. it would hereafter be as desirable to the former when the latter should become the most populous. he professed his jealousy for the productions of the southern or as he called them, the staple states. he moved to insert the following amendment: "provided that no tax duty or imposition shall be laid by the legislature of the u. states on articles exported from any state." m^r sherman had no objection to the proviso here, other than it would derange the parts of the report as made by the committee, to take them in such an order. m^r rutlidge. it being of no consequence in what order points are decided, he should vote for the clause as it stood, but on condition that the subsequent part relating to negroes should also be agreed to. m^r governeur morris considered such a proviso as inadmissible any where. it was so radically objectionable, that it might cost the whole system the support of some members. he contended that it would not in some cases be equitable to tax imports without taxing exports; and that taxes on exports would be often the most easy and proper of the two. m^r madison. 1. the power of laying taxes on exports is proper in itself, and as the states cannot with propriety exercise it separately, it ought to be vested in them collectively. 2. it might with particular advantage be exercised with regard to articles in which america was not rivalled in foreign markets, as tob^o &c. the contract between the french farmers gen^l and m^r morris stipulating that if taxes s^d be laid in america on the export of tob^o they s^d be paid by the farmers, shewed that it was understood by them, that the price would be thereby raised in america, and consequently the taxes be paid by the european consumer. 3. it would be unjust to the states whose produce was exported by their neighbours, to leave it subject to be taxed by the latter. this was a grievance which had already filled n.h. con^t n. jer^y del: and n. carolina with loud complaints, as it related to imports, and they would be equally authorized by taxes by the states on exports. 4. the south^n states being most in danger and most needing naval protection, could the less complain if the burthen should be somewhat heaviest on them. 5. we are not providing for the present moment only, and time will equalize the situation of the states in this matter. he was for these reasons ag^{st} the motion. m^r williamson considered the clause proposed ag^{st} taxes on exports as reasonable and necessary. m^r elseworth was ag^{st} taxing exports; but thought the prohibition stood in the most proper place, and was ag^{st} deranging the order reported by the committee. m^r wilson was decidedly ag^{st} prohibiting general taxes on exports. he dwelt on the injustice and impolicy of leaving n. jersey connecticut &c. any longer subject to the exactions of their commercial neighbours. m^r gerry thought the legislature could not be trusted with such a power. it might ruin the country. it might be exercised partially, raising one and depressing another part of it. m^r gov^r morris. however the legislative power may be formed, it will if disposed be able to ruin the country. he considered the taxing of exports to be in many cases highly politic. virginia has found her account in taxing tobacco. all countries having peculiar articles tax the exportation of them; as france her wines and brandies. a tax here on lumber, would fall on the w. indies & punish their restrictions on our trade. the same is true of live stock and in some degree of flour. in case of a dearth in the west indies, we may extort what we please. taxes on exports are a necessary source of revenue. for a long time the people of america will not have money to pay direct taxes. seize and sell their effects and you push them into revolts. m^r mercer was strenuous against giving congress power to tax exports. such taxes are impolitic, as encouraging the raising of articles not meant for exportation. the states had now a right where their situation permitted, to tax both the imports and the exports of their uncommercial neighbours. it was enough for them to sacrifice one half of it. it had been said the southern states had most need of naval protection. the reverse was the case. were it not for promoting the carrying trade of the north^n states, the south^n states could let the trade go into foreign bottoms, where it would not need our protection. virginia by taxing her tobacco had given an advantage to that of maryland. m^r sherman. to examine and compare the states in relation to imports and exports will be opening a boundless field. he thought the matter had been adjusted, and that imports were to be subject, and exports not, to be taxed. he thought it wrong to tax exports except it might be such articles as ought not to be exported. the complexity of the business in america would render an equal tax on exports impracticable. the oppression of the uncommercial states was guarded ag^{st} by the power to regulate trade between the states. as to compelling foreigners, that might be done by regulating trade in general. the government would not be trusted with such a power. objections are most likely to be excited by considerations relating to taxes & money. a power to tax exports would shipwreck the whole. m^r carrol was surprised that any objection should be made to an exception of exports from the power of taxation. it was finally agreed that the question concerning exports sh^d lie over for the place in which the exception stood in the report: mary^d alone voting ag^{st} it. sect: 1. (art. vii) agreed to; m^r gerry alone answering, no. clause for regulating commerce with foreign nations &c. agreed to nem. con. for coining money. ag^d to nem. con. for regulating foreign coin. d^o d^o. for fixing standard of weights & measures. d^o d^o. "to establish post-offices," m^r gerry moved to add, and post-roads. m^r mercer 2^{ded}. & on question n.h. no. mass. ay. c^t no. n.j. no. pen^a no. del. ay. m^d ay. v^a ay. n.c. no. s.c. ay. geo. ay. m^r gov^r morris moved to strike out "and emit bills on the credit of the u. states"--if the united states had credit such bills would be unnecessary; if they had not, unjust & useless. m^r butler, 2^{ds} the motion. m^r madison, will it not be sufficient to prohibit the making them a _tender_? this will remove the temptation to emit them with unjust views. and promissory notes in that shape may in some emergencies be best. m^r gov^r morris, striking out the words will leave room still for notes of a _responsible_ minister which will do all the good without the mischief. the monied interest will oppose the plan of government, if paper emissions be not prohibited. m^r ghorum was for striking out, without inserting any prohibition, if the words stand they may suggest and lead to the measure. col. mason had doubts on the subject. cong^s he thought would not have the power unless it were expressed. though he had a mortal hatred to paper money, yet as he could not forsee all emergencies, he was unwilling to tie the hands of the legislature. he observed that the late war could not have been carried on, had such a prohibition existed. mr. ghorum. the power as far as it will be necessary or safe, is involved in that of borrowing. m^r mercer was a friend to paper money, though in the present state & temper of america, he should neither propose nor approve of such a measure. he was consequently opposed to a prohibition of it altogether. it will stamp suspicion on the government to deny it a discretion on this point. it was impolitic also to excite the opposition of all those who were friends to paper money. the people of property would be sure to be on the side of the plan, and it was impolitic to purchase their further attachment with the loss of the opposite class of citizens. m^r elseworth thought this a favorable moment to shut and bar the door against paper money. the mischiefs of the various experiments which had been made, were now fresh in the public mind and had excited the disgust of all the respectable part of america. by withholding the power from the new govern^t more friends of influence would be gained to it than by almost any thing else. paper money can in no case be necessary. give the government credit, and other resources will offer. the power may do harm, never good. m^r randolph, notwithstanding his antipathy to paper money, could not agree to strike out the words, as he could not foresee all the occasions that might arise. m^r wilson. it will have a most salutary influence on the credit of the u. states to remove the possibility of paper money. this expedient can never succeed whilst its mischiefs are remembered. and as long as it can be resorted to, it will be a bar to other resources. m^r butler remarked that paper was a legal tender in no country in europe. he was urgent for disarming the government of such a power. m^r mason was still averse to tying the hands of the legislature _altogether_. if there was no example in europe as just remarked it might be observed on the other side, that there was none in which the government was restrained on this head. m^r read, thought the words, if not struck out, would be as alarming as the mark of the beast in revelations. m^r langdon had rather reject the whole plan than retain the three words ("and emit bills"). on the motion for striking out n.h. ay. mass. ay. c^t ay. n.j. no. p^a ay. del. ay. m^d no. v^a ay.[31] n.c. ay. s.c. ay. geo. ay. [31] this vote in the affirmative by virg^a was occasioned by the acquiescence of m^r madison who became satisfied that striking out the words would not disable the gov^t from the use of public notes as far as they could be safe & proper; & would only cut off the pretext for a paper currency and particularly for making the bills a tender either for public or private debts.--madison's note. the clause for borrowing money, agreed to nem. con. adj^d. friday august 17. in convention art. vii. sect. 1. resumed, on the clause, "to appoint treasurer by ballot," m^r ghorum moved to insert "joint" before ballot, as more convenient as well as reasonable, than to require the separate concurrence of the senate. m^r pinkney 2^{ds} the motion. m^r sherman opposed it as favoring the larger states. m^r read moved to strike out the clause, leaving the appointment of the treasurer as of other officers to the executive. the legislature was an improper body for appointments. those of the state legislatures were a proof of it. the executive being responsible would make a good choice. m^r mercer 2^{ds} the motion of m^r read. on the motion for inserting the word "joint" before ballot n.h. ay. mass. ay. c^t no. n.j. no. p^a ay. m^d no. v^a ay. n.c. ay. s.c. ay. geo. ay. col. mason in opposition to m^r read's motion desired it might be considered to whom the money would belong; if to the people, the legislature representing the people ought to appoint the keepers of it. on striking out the clause as amended by inserting "joint" n.h. no. mass. no. c^t no. p^a ay. del. ay. m^d ay. v^a no. n.c. no. s.c. ay. geo. no. "to constitute inferior tribunals" agreed to nem. con. "to make rules as to captures on land & water" d^o d^o. "to declare the law and punishment of piracies and felonies &c &c." considered. m^r madison moved to strike out "and punishment &c." m^r mason doubts the safety of it, considering the strict rule of construction in criminal cases. he doubted also the propriety of taking the power in all these cases wholly from the states. m^r govern^r morris thought it would be necessary to extend the authority further, so as to provide for the punishment of counterfeiting in general. bills of exchange for example might be forged in one state and carried into another. it was suggested by some other member that _foreign_ paper might be counterfeited by citizens; and that it might be politic to provide by national authority for the punishment of it. m^r randolph did not conceive that expunging "the punishment" would be a constructive exclusion of the power. he doubted only the efficacy of the word "declare." m^r wilson was in favor of the motion. strictness was not necessary in giving authority to enact penal laws; though necessary in enacting & expounding them. on motion for striking out "and punishment" as moved by m^r madison n.h. no. mass. ay. c^t no. p^a ay. del. ay. m^d no. v^a ay. n.c. ay. s.c. ay. geo. ay. m^r gov^r morris moved to strike out "declare the law" and insert "punish" before "piracies," and on the question. n.h. ay. mass. ay. c^t no. p^a ay. del. ay. m^d ay. v^a no. n.c. no. s.c. ay. geo. ay. m^r madison & m^r randolph moved to insert "define &," before "punish." m^r wilson thought "felonies" sufficiently defined by common law. m^r dickenson concurred with m^r wilson. m^r mercer was in favor of the amendment. m^r madison. felony at common law is vague. it is also defective. one defect is supplied by stat: of anne as to running away with vessels which at co[~m]on law was a breach of trust only. besides no foreign law should be a standard farther than is expressly adopted. if the laws of the states were to prevail on this subject, the citizens of different states would be subject to different punishments for the same offence at sea. there would be neither uniformity nor stability in the law--the proper remedy for all these difficulties was to vest the power proposed by the term "define" in the nat^l legislature. m^r gov^r morris would prefer _designate_ to _define_, the latter being as he conceived, limited to the preexisting meaning. it was said by others to be applicable to the creating of offences also, and therefore suited the case both of felonies & of piracies. the motion of m^r m. & m^r r. was agreed to. m^r elseworth enlarged the motion so as to read "to define and punish piracies and felonies committed on the high seas, counterfeiting the securities and current coin of the u. states, and offences ag^{st} the law of nations" which was agreed to nem. con. "to subdue a rebellion in any state, on the application of its legislature" m^r pinkney moved to strike out, "on the application of its legislature". m^r gov^r morris 2^{ds}. m^r l. martin opposed it as giving a dangerous & unnecessary power. the consent of the state ought to precede the introduction of any extraneous force whatever. m^r mercer supported the opposition of m^r martin. m^r elseworth proposed to add after "legislature," "or executive." m^r gov^r morris. the executive may possibly be at the head of the rebellion. the gen^l gov^t should enforce obedience in all cases where it may be necessary. m^r elseworth. in many cases the gen^l gov^t ought not to be able to interpose, unless called upon. he was willing to vary his motion so as to read "or without it when the legislature cannot meet." m^r gerry was ag^{st} letting loose the myrmidons of the u. states on a state without its own consent. the states will be the best judges in such cases. more blood would have been spilt in mass^{ts} in the late insurrection, if the gen^l authority had intermeddled. m^r langdon was for striking out as moved by m^r pinkney. the apprehension of the national force, will have a salutary effect in preventing insurrections. m^r randolph. if the nat^l legislature is to judge whether the state legislature can or cannot meet, that amendment would make the clause as objectionable as the motion of m^r pinkney. m^r gov^r morris. we are acting a very strange part. we first form a strong man to protect us, and at the same time wish to tie his hands behind him. the legislature may surely be trusted with such a power to preserve the public tranquillity. on the motion to add, "or without it (application) when the legislature cannot meet" n.h. ay. mass. no. c^t ay. p^a div^d. del. no. m^d no. v^a ay. n.c. div^d. s. c. ay. geo. ay. so agreed to. m^r madison and m^r dickenson moved to insert as explanatory, after "state"--"against the government thereof". there might be a rebellion ag^{st} the u. states--which was agreed to nem. con. on the clause as amended n.h. ay. mass.[32] abs^t. c^t ay. pen. abs^t. del. no. m^d no. v^a ay. n.c. no. s.c. no. georg. ay.--so it was lost. [32] in the printed journal, mas. no.--madison's note. "to make war" m^r pinkney opposed the vesting this power in the legislature. its proceedings were too slow. it w^d meet but once a year, the h^s of rep^s would be too numerous for such deliberations. the senate would be the best depository, being more acquainted with foreign affairs, and most capable of proper resolutions. if the states are equally represented in the senate, so as to give no advantage to the large states, the power will notwithstanding be safe, as the small have their all at stake in such cases as well as the large states. it would be singular for one authority to make war, and another peace. m^r butler. the objections ag^{st} the legislature lie in a great degree ag^{st} the senate. he was for vesting the power in the president, who will have all the requisite qualities, and will not make war but when the nation will support it. m^r madison and m^r gerry moved to insert "_declare_," striking out "_make_" war; leaving to the executive the power to repel sudden attacks. m^r sherman thought it stood very well. the executive sh^d be able to repel and not to commence war. "make" is better than "declare" the latter narrowing the power too much. m^r gerry never expected to hear in a republic a motion to empower the executive alone to declare war. m^r elsworth. there is a material difference between the cases of making _war_ and making _peace_. it sh^d be more easy to get out of war, than into it. war also is a simple and overt declaration, peace attended with intricate & secret negociations. m^r mason was ag^{st} giving the power of war to the executive because not safely to be trusted with it; or to the senate, because not so constructed as to be entitled to it. he was for clogging rather than facilitating war; but for facilitating peace. he preferred "_declare_" to "_make_." on the motion to insert "_declare_"--in place of "_make_," it was agreed to. n.h. no. mass, abs^t. con^t no.[33] p^a ay. del. ay. m^d ay. v^a ay. n.c. ay. s.c. ay. geo. ay. [33] on the remark by m^r king that "_make_" war might be understood to "conduct" it which was an executive function. m^r elsworth gave up his objection, and the vote of con. was changed to _ay_.--madison's note. m^r pinkney's motion to strike out whole clause, disag^d to without call of states. m^r butler moved to give the legislature the power of peace, as they were to have that of war. m^r gerry 2^{ds} him. 8 senators may possibly exercise the power if vested in that body, and 14 if all should be present; and may consequently give up part of the u. states. the senate are more liable to be corrupted by an enemy than the whole legislature. on the motion for adding "and peace" after "war," n.h. no. mas. no. c^t no. p^a no. del. no. m^d no. v^a no. n.c. no. s.c. no. geo. no. adjourned. saturday august 18. in convention m^r madison submitted, in order to be referred to the committee of detail the following powers as proper to be added to those of the general legislature: "to dispose of the unappropriated lands of the u. states." "to institute temporary governments for new states arising therein." "to regulate affairs with the indians as well within as without the limits of the u. states." "to exercise exclusively legislative authority at the seat of the general government, and over a district around the same, not exceeding ---square miles; the consent of the legislature of the state or states comprising the same, being first obtained." "to grant charters of incorporation in cases where the public good may require them, and the authority of a single state may be incompetent" "to secure to literary authors their copy rights for a limited time." "to establish an university." "to encourage by premiums & provisions, the advancement of useful knowledge and discoveries." "to authorize the executive to procure and hold for the use of the u. s. landed property for the erection of forts, magazines, and other necessary buildings." these propositions were referred to the committee of detail which had prepared the report and at the same time the following which were moved by m^r pinkney:--in both cases unanimously: "to fix and permanently establish the seat of government of the u. s. in which they shall possess the exclusive right of soil & jurisdiction." "to establish seminaries for the promotion of literature and the arts & sciences." "to grant charters of incorporation." "to grant patents for useful inventions." "to secure to authors exclusive rights for a certain time." "to establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades and manufactures." "that funds which shall be appropriated for the payment of public creditors, shall not during the time of such appropriation, be diverted or applied to any other purpose and that the committee prepare a clause or clauses for restraining the legislature of the u. s. from establishing a perpetual revenue." "to secure the payment of the public debt." "to secure all creditors under the new constitution from a violation of the public faith when pledged by the authority of the legislature." "to grant letters of mark and reprisal." "to regulate stages on the post roads." m^r mason introduced the subject of regulating the militia. he thought such a power necessary to be given to the gen^l government. he hoped there would be no standing army in time of peace, unless it might be for a few garrisons. the militia ought therefore to be the more effectually prepared for the public defence. thirteen states will never concur in any one system, if the disciplining of the militia be left in their hands. if they will not give up the power over the whole, they probably will over a part as a select militia. he moved as an addition to the propositions just referred to the comittee of detail, & to be referred in like manner, "a power to regulate the militia." m^r gerry remarked that some provision ought to be made in favor of public securities, and something inserted concerning letters of marque, which he thought not included in the power of war. he proposed that these subjects should also go to a committee. m^r rutlidge moved to refer a clause "that funds appropriated to public creditors should not be diverted to other purposes." m^r mason was much attached to the principle, but was afraid such a fetter might be dangerous in time of war. he suggested the necessity of preventing the danger of perpetual revenue which must of necessity subvert the liberty of any country. if it be objected to on the principle of m^r rutlidge's motion that public credit may require perpetual provisions, that case might be excepted; it being declared that in other cases, no taxes should be laid for a longer term than ---years. he considered the caution observed in great britain on this point as the paladium of public liberty. m^r rutlidge's motion was referred--he then moved that a grand committee be appointed to consider the necessity and expediency of the u. states assuming all the state debts--a regular settlement between the union & the several states would never take place. the assumption would be just as the state debts were contracted in the common defence. it was necessary, as the taxes on imports the only sure source of revenue were to be given up to the union. it was politic, as by disburdening the people of the state debts it would conciliate them to the plan. m^r king and m^r pinkney seconded the motion. (col. mason interposed a motion that the committee prepare a clause for restraining perpetual revenue, which was agreed to nem. con.) m^r sherman thought it would be better to authorize the legislature to assume the state debts, than to say positively it should be done. he considered the measure as just and that it would have a good effect to say something about the matter. m^r elseworth differed from m^r sherman. as far as the state debts ought in equity to be assumed, he conceived that they might and would be so. m^r pinkney observed that a great part of the state debts were of such a nature that although in point of policy and true equity they ought, yet would they not be viewed in the light of federal expenditures. m^r king thought the matter of more consequence than m^r elseworth seemed to do; and that it was well worthy of commitment. besides the considerations of justice and policy which had been mentioned, it might be remarked that the state creditors an active and formidable party would otherwise be opposed to a plan which transferred to the union the best resources of the states without transferring the state debts at the same time. the state creditors had generally been the strongest foes to the impost-plan. the state debts probably were of greater amount than the federal. he would not say that it was practicable to consolidate the debts, but he thought it would be prudent to have the subject considered by a committee. on m^r rutlidge's motion, that a com^e be appointed to consider of the assumption &c. n. h. no. mass. ay. c^t ay. n. j. no. p^a div^d. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gerry's motion to provide for public securities, for stages on post roads, and for letters of marque & reprisal, were committed nem. con. m^r king suggested that all unlocated lands of particular states ought to be given up if state debts were to be assumed:--m^r williamson concurred in the idea. a grand committee was appointed consisting of m^r langdon, m^r king, m^r sherman, m^r livingston, m^r clymer, m^r dickenson, m^r m^chenry, m^r mason, m^r williamson, m^r c. c. pinkney, m^r baldwin. m^r rutlidge remarked on the length of the session, the probable impatience of the public and the extreme anxiety of many members of the convention to bring the business to an end; concluding with a motion that the convention meet henceforward precisely at 10 oc a.m. and that precisely at 4 oc p.m. the president adjourn the house without motion for the purpose, and that no motion to adjourn sooner be allowed. on this question n. h. ay. mass. ay. c^t ay. n. j. ay. p^a no. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r elseworth observed that a council had not yet been provided for the president. he conceived there ought to be one. his proposition was that it should be composed of the president of the senate, the chief justice, and the ministers as they might be estab^d for the departments of foreign & domestic affairs, war finance and marine, who should advise but not conclude the president. m^r pinkney wished the proposition to lie over, as notice had been given for a like purpose by m^r gov^r morris who was not then on the floor. his own idea was that the president sh^d be authorized to call for advice or not as he might chuse. give him an able council and it will thwart him; a weak one and he will shelter himself under their sanction. m^r gerry was ag^{st} letting the heads of the departments, particularly of finance have any thing to do in business connected with legislation. he mentioned the chief justice also as particularly exceptionable. these men will also be so taken up with other matters as to neglect their own proper duties. m^r dickenson urged that the great appointments should be made by the legislature in which case they might properly be consulted by the executive, but not if made by the executive himself--this subject by general consent lay over; & the house proceeded to the clause "to raise armies." m^r ghorum moved to add "and support" after "raise." agreed to nem. con. and then the clause was agreed to nem. con. as amended. m^r gerry took notice that there was no check here ag^{st} standing armies in time of peace. the existing cong^s is so constructed that it cannot of itself maintain an army. this w^d not be the case under the new system. the people were jealous on this head, and great opposition to the plan would spring from such an omission. he suspected that preparations of force were now making ag^{st} it. (he seemed to allude to the activity of the gov^r of n. york at this crisis in disciplining the militia of that state.) he thought an army dangerous in time of peace & could never consent to a power to keep up an indefinite number. he proposed that there shall not be kept up in time of peace more than ---thousand troops. his idea was that the blank should be filled with two or three thousand. instead of "to build and equip fleets"--"to provide and maintain a navy" agreed to nem. con. as a more convenient definition of the power. "to make rules for the government and regulation of the land & naval forces," added from the existing articles of confederation. m^r l. martin and m^r gerry now regularly moved "provided that in time of peace the army shall not consist of more than ---thousand men." gen^l pinkney asked whether no troops were ever to be raised untill an attack should be made on us? m^r gerry. if there be no restriction, a few states may establish a military gov^t. m^r williamson, reminded him of m^r mason's motion for limiting the appropriation of revenue as the best guard in this case. m^r langdon saw no room for m^r gerry's distrust of the representatives of the people. m^r dayton. preparations for war are generally made in peace; and a standing force of some sort may, for ought we know, become unavoidable. he should object to no restrictions consistent with these ideas. the motion of m^r martin and m^r gerry was disagreed to nem. con. m^r mason moved as an additional power "to make laws for the regulation and discipline of the militia of the several states, reserving to the states the appointment of the officers." he considered uniformity as necessary in the regulation of the militia throughout the union. gen^l pinkney mentioned a case during the war in which a dissimilarity in the militia of different states had produced the most serious mischiefs. uniformity was essential. the states would never keep up a proper discipline of their militia. m^r elseworth was for going as far in submitting the militia to the gen^l government as might be necessary, but thought the motion of m^r mason went too far. he moved that the militia should have the same arms & exercise and be under rules established by the gen^l gov^t when in actual service of the u. states and when states neglect to provide regulations for militia, it sh^d be regulated & established by the legislature of u. s. the whole authority over the militia ought by no means to be taken away from the states whose consequence would pine away to nothing after such a sacrifice of power. he thought the gen^l authority could not sufficiently pervade the union for such a purpose, nor could it accommodate itself to the local genius of the people. it must be vain to ask the states to give the militia out of their hands. m^r sherman 2^{ds} the motion. m^r dickenson. we are come now to a most important matter, that of the sword. his opinion was that the states never would nor ought to give up all authority over the militia. he proposed to restrain the general power to one fourth part at a time, which by rotation would discipline the whole militia. m^r butler urged the necessity of submitting the whole militia to the general authority, which had the care of the general defence. m^r mason. had suggested the idea of a select militia. he was led to think that would be in fact as much as the gen^l gov^t could advantageously be charged with. he was afraid of creating insuperable objections to the plan. he withdrew his original motion, and moved a power "to make laws for regulating and disciplining the militia, not exceeding one tenth part in any one year, and reserving the appointment of officers to the states." gen^l pinkney, renewed m^r mason's original motion. for a part to be under the gen^l and a part under the state gov^{ts} w^d be an incurable evil. he saw no room for such distrust of the gen^l gov^t. m^r langdon 2^{ds} general pinkney's renewal. he saw no more reason to be afraid of the gen^l gov^t than of the state gov^{ts}. he was more apprehensive of the confusion of the different authorities on this subject, than of either. m^r madison thought the regulation of the militia naturally appertaining to the authority charged with the public defence. it did not seem in its nature to be divisible between two distinct authorities. if the states would trust the gen^l gov^t with a power over the public treasure, they would from the same consideration of necessity grant it the direction of the public force. those who had a full view of the public situation w^d from a sense of the danger, guard ag^{st} it: the states would not be separately impressed with the general situation, nor have the due confidence in the concurrent exertions of each other. m^r elseworth, considered the idea of a select militia as impracticable; & if it were not it would be followed by a ruinous declension of the great body of the militia. the states would never submit to the same militia laws. three or four shillings as a penalty will enforce better obedience in new england, than forty lashes in some other places. m^r pinkney thought the power such an one as could not be abused, and that the states would see the necessity of surrendering it. he had however but a scanty faith in militia. there must be also a real military force. this alone can effectually answer the purpose. the united states had been making an experiment without it, and we see the consequence in their rapid approaches toward anarchy.[34] [34] this had reference to the disorders particularly that had occurred in massach^{ts} which had called for the interposition of the federal troops.--madison's note. m^r sherman, took notice that the states might want their militia for defence ag^{st} invasions and insurrections, and for enforcing obedience to their laws. they will not give up this point. in giving up that of taxation, they retain a concurrent power of raising money for their own use. m^r gerry thought this the last point remaining to be surrendered. if it be agreed to by the convention, the plan will have as black a mark as was set on cain. he had no such confidence in the gen^l gov^t as some gentlemen possessed, and believed it would be found that the states have not. col. mason, thought there was great weight in the remarks of m^r sherman, and moved an exception to his motion "of such part of the militia as might be required by the states for their own use." m^r read doubted the propriety of leaving the appointment of the militia officers in the states. in some states they are elected by the legislatures; in others by the people themselves. he thought at least an appointment by the state executives ought to be insisted on. on committing to the grand committee last appointed, the latter motion of col. mason, & the original one revived by ge^l pinkney n. h. ay. mas. ay. c^t no. n. j. no. p^a ay. del. ay. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. adjourned. monday august 20. in convention m^r pinkney submitted to the house, in order to be referred to the committee of detail, the following propositions--"each house shall be the judge of its own privileges, and shall have authority to punish by imprisonment every person violating the same, or who, in the place where the legislature may be sitting and during the time of its session, shall threaten any of its members for any thing said or done in the house; or who shall assault any of them therefor--or who shall assault or arrest any witness or other person ordered to attend either of the houses in his way going or returning; or who shall rescue any person arrested by their order." "each branch of the legislature, as well as the supreme executive shall have authority to require the opinions of the supreme judicial court upon important questions of law, and upon solemn occasions." "the privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner; and shall not be suspended by the legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding ---months." "the liberty of the press, shall be inviolably preserved." "no troops shall be kept up in time of peace, but by consent of the legislature." "the military shall always be subordinate to the civil power, and no grants of money shall be made by the legislature for supporting military land forces, for more than one year at a time." "no soldier shall be quartered in any house in time of peace without consent of the owner." "no person holding the office of president of the u. s. a judge of their supreme court, secretary for the department of foreign affairs, of finance, of marine, of war, or of ----, shall be capable of holding at the same time any other office of trust or emolument under the u. s. or an individual state." "no religious test or qualification shall ever be annexed to any oath of office under the authority of the u. s." "the u. s. shall be forever considered as one body corporate and politic in law, and entitled to all the rights privileges and immunities, which to bodies corporate ought to or do appertain." "the legislature of the u. s. shall have the power of making the great seal which shall be kept by the president of the u. s. or in his absence by the president of the senate, to be used by them as the occasion may require.--it shall be called the great seal of the u. s. and shall be affixed to all laws." "all commissions and writs shall run in the name of the u.s." "the jurisdiction of the supreme court shall be extended to all controversies between the u. s. and an individual state, or the u. s. and the citizens of an individual state." these propositions were referred to the committee of detail without debate or consideration of them by the house. m^r gov^r morris 2^{ded} by m^r pinkney, submitted the following propositions which were in like manner referred to the committee of detail. "to assist the president in conducting the public affairs there shall be a council of state composed of the following officers--1. the chief justice of the supreme court, who shall from time to time recommend such alterations of and additions to the laws of the u. s. as may in his opinion be necessary to the due administration of justice, and such as may promote useful learning and inculcate sound morality throughout the union: he shall be president of the council in the absence of the president. 2. the secretary of domestic affairs who shall be appointed by the president and hold his office during pleasure. it shall be his duty to attend to matters of general police, the state of agriculture and manufactures, the opening of roads and navigations, and the facilitating communications thro' the u. states; and he shall from time to time recommend such measures and establishments as may tend to promote those objects. 3. the secretary of commerce and finance who shall also be appointed by the president during pleasure. it shall be his duty to superintend all matters relating to the public finances, to prepare & report plans of revenue and for the regulation of expenditures, and also to recommend such things as may in his judgment promote the commercial interests of the u. s. 4. the secretary of foreign affairs who shall also be appointed by the president during pleasure. it shall be his duty to correspond with all foreign ministers, prepare plans of treaties, & consider such as may be transmitted from abroad, and generally to attend to the interests of the u. s. in their connections with foreign powers. 5. the secretary of war who shall also be appointed by the president during pleasure. it shall be his duty to superintend every thing relating to the war department, such as the raising and equipping of troops, the care of military stores, public fortifications, arsenals & the like--also in time of war to prepare & recommend plans of offence and defence. 6. the secretary of the marine who shall also be appointed during pleasure--it shall be his duty to superintend every thing relating to the marine department, the public ships, dock yards, naval stores & arsenals--also in the time of war to prepare and recommend plans of offence and defence. the president shall also appoint a secretary of state to hold his office during pleasure; who shall be secretary to the council of state, and also public secretary to the president. it shall be his duty to prepare all public dispatches from the president which he shall countersign. the president may from time to time submit any matter to the discussion of the council of state, and he may require the written opinions of any one or more of the members: but he shall in all cases exercise his own judgment, and either conform to such opinions or not as he may think proper; and every officer above mentioned shall be responsible for his opinion on the affairs relating to his particular department. each of the officers above mentioned shall be liable to impeachment & removal from office for neglect of duty malversation or corruption." m^r gerry moved "that the committee be instructed to report proper qualifications for the president, and a mode of trying the supreme judges in cases of impeachment." the clause "to call forth the aid of the militia &c. was postponed till report should be made as to the power over the militia referred yesterday to the grand committee of eleven. m^r mason moved to enable congress "to enact sumptuary laws." no government can be maintained unless the manners be made consonant to it. such a discretionary power may do good and can do no harm. a proper regulation of excises & of trade may do a great deal but it is best to have an express provision. it was objected to sumptuary laws that they were contrary to nature. this was a vulgar error. the love of distinction it is true is natural; but the object of sumptuary laws is not to extinguish this principle but to give it a proper direction. m^r elseworth. the best remedy is to enforce taxes & debts. as far as the regulation of eating & drinking can be reasonable, it is provided for in the power of taxation. m^r gov^r morris argued that sumptuary laws tended to create a landed nobility, by fixing in the great-landholders and their posterity their present possessions. m^r gerry, the law of necessity is the best sumptuary law. on motion of m^r mason "as to sumptuary laws" n. h. no. mas. no. c^t no. n. j. no. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. ay. "and to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this constitution, in the government of the u. s. or any department or officer thereof." m^r madison and m^r pinkney moved to insert between "laws" and "necessary" "and establish all offices," it appearing to them liable to cavil that the latter was not included in the former. m^r gov^r morris, m^r wilson, m^r rutlidge and m^r elseworth urged that the amendment could not be necessary. on the motion for inserting "and establish all offices" n. h. no. mass. ay. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. no. the clause as reported was then agreed to nem. con. art: vii sect. 2. concerning treason which see. m^r madison, thought the definition too narrow. it did not appear to go as far as the stat. of edw^d iii. he did not see why more latitude might not be left to the legislature. it w^d be as safe as in the hands of state legislatures. and it was inconvenient to bar a discretion which experience might enlighten, and which might be applied to good purposes as well as be abused. m^r mason was for pursuing the stat: of edw^d iii. m^r gov^r morris was for giving to the union an exclusive right to declare what sh^d be treason. in case of a contest between the u. s. and a particular state, the people of the latter must under the disjunctive terms of the clause, be traitors to one or other authority. m^r randolph thought the clause defective in adopting the words, "in adhering" only. the british stat: adds, "giving them aid and comfort" which had a more extensive meaning. m^r elseworth considered the definition as the same in fact with that of the statute. m^r gov^r morris "adhering" does not go so far as "giving aid and comfort" or the latter words may be restrictive of "adhering," in either case the statute is not pursued. m^r wilson held "giving aid and comfort" to be explanatory, not operative words; and that it was better to omit them. m^r dickenson, thought the addition of "giving aid and comfort" unnecessary & improper; being too vague and extending too far. he wished to know what was meant by the "testimony of two witnesses" whether they were to be witnesses to the same overt act or to different overt acts. he thought also that proof of an overt act ought to be expressed as essential in the case. doc^r johnson considered "giving aid & comfort" as explanatory of "adhering" & that something should be inserted in the definition concerning overt acts. he contended that treason could not be both ag^{st} the u. states--and individual states; being an offence ag^{st} the sovereignty which can be but one in the same community. m^r madison remarked that "and" before "in adhering" should be changed into "or" otherwise both offences viz. of "levying war," & of adhering to the enemy might be necessary to constitute treason. he added that, as the definition here was of treason against _the u. s._ it would seem that the individual states w^d be left in possession of a concurrent power so far as to define & punish treason particularly ag^{st} themselves; which might involve double punishm^t. it was moved that the whole clause be recommitted which was lost, the votes being equally divided. n. h. no. mas. no. c^t no. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. div^d. s. c. no. geo. ay. m^r wilson & doc^r johnson moved, that "or any of them," after "united states" be struck out in order to remove the embarrassment; which was agreed to nem. con. m^r madison. this has not removed the embarrassment. the same act might be treason ag^{st} the united states as here defined--and ag^{st} a particular state according to its laws. m^r elseworth. there can be no danger to the gen^l authority from this; as the laws of the u. states are to be paramount. doc^r johnson was still of opinion there could be no treason ag^{st} a particular state. it could not even at present, as the confederation now stands, the sovereignty being in the union; much less can it be under the proposed system. col. mason. the united states will have a qualified sovereignty only. the individual states will retain a part of the sovereignty. an act may be treason ag^{st} a particular state which is not so ag^{st} the u. states. he cited the rebellion of bacon in virginia as an illustration of the doctrine. doc^r johnson: that case would amount to treason ag^{st} the sovereign, the supreme sovereign, the united states. m^r king observed that the controversy relating to treason might be of less magnitude than was supposed; as the legislature might punish capitally under other names than treason. m^r gov^r morris and m^r randolph wished to substitute the words of the british statute and moved to postpone sect 2. art vii in order to consider the following substitute--"whereas it is essential to the preservation of liberty to define precisely and exclusively what shall constitute the crime of treason, it is therefore ordained, declared & established, that if a man do levy war ag^{st} the u. s. within their territories, or be adherent to the enemies of the u. s. within the said territories, giving them aid and comfort within their territories or elsewhere, and thereof be provably attainted of open deed by the people of his condition, he shall be adjudged guilty of treason." on this question n. h.--mas. no. c^t no. n. j. ay. p^a no. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. it was then moved to strike out "ag^{st} united states" after "treason" so as to define treason generally, and on this question mass. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a no. n. c. no. s. c. ay. geo. ay. it was then moved to insert after "two witnesses" the words "to the same overt act." doc^r franklin wished this amendment to take place. prosecutions for treason were generally virulent; and perjury too easily made use of against innocence. m^r wilson. much may be said on both sides. treason may sometimes be practised in such a manner, as to render proof extremely difficult--as in a traitorous correspondence with an enemy. on the question--as to some overt act n. h. ay. mass. ay. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a no. n. c. no. s. c. ay. geo. ay. m^r king moved to insert before the word "power" the word "sole," giving the u. states the exclusive right to declare the punishment of treason. m^r broom 2^{ds} the motion. m^r wilson in cases of a general nature, treason can only be ag^{st} the u-states, and in such they sh^d have the sole right to declare the punishment--yet in many cases it may be otherwise. the subject was however intricate and he distrusted his present judgment on it. m^r king this amendment results from the vote defining treason generally by striking out ag^{st} the u. states, which excludes any treason ag^{st} particular states. these may however punish offences as high misdemeanors. on inserting the word "sole." it passed in the negative n. h. ay. mas. ay. c^t no. n. j. no. p^a ay. del. ay. m^d no. v^a no. n. c. no. s. c. ay. geo. no.-m^r wilson. the clause is ambiguous now. "sole" ought either to have been inserted, or "against the u. s." to be re-instated. m^r king no line can be drawn between levying war and adhering to enemy ag^{st} the u. states and ag^{st} an individual state--treason ag^{st} the latter must be so ag^{st} the former. m^r sherman, resistance ag^{st} the laws of the u. states as distinguished from resistance ag^{st} the laws of a particular state, forms the line. m^r elseworth, the u. s. are sovereign on one side of the line dividing the jurisdictions--the states on the other--each ought to have power to defend their respective sovereignties. m^r dickenson, war or insurrection ag^{st} a member of the union must be so ag^{st} the whole body; but the constitution should be made clear on this point. the clause was reconsidered nem. con--& then m^r wilson & m^r elseworth moved to reinstate "ag^{st} the u. s." after "treason--" on which question n. h. no. mass. no. c^t ay. n. j. ay. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. m^r madison was not satisfied with the footing on which the clause now stood. as treason ag^{st} the u. states involves treason ag^{st} particular states, and vice versa, the same act may be twice tried & punished by the different authorities. m^r gov^r morris viewed the matter in the same light-it was moved & 2^{ded} to amend the sentence to read--"treason ag^{st} the u. s. shall consist only in levying war against them, or in adhering to their enemies" which was agreed to. col. mason moved to insert the words "giving them aid and comfort," as restrictive of "adhering to their enemies &c." the latter he thought would be otherwise too indefinite--this motion was agreed to: con^t: del: & georgia only being in the negative. m^r l. martin moved to insert after conviction &c.--"or on confession in open court"--and on the question (the negative states thinking the words superfluous) it was agreed to n. h. ay. mass. no. c^t ay. n. j. ay. p. ay. del. ay. m^d ay. v^a ay. n. c. div^d. s. c. no. geo. no. art: vii. sect. 2, as amended was then agreed to nem. con. sect. 3. taken up. "white & other" struck out nem. con. as superfluous. m^r elseworth moved to require the first census to be taken within "three" instead of "six" years from the first meeting of the legislature--and on question n. h. ay. mass. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. m^r king asked what was the precise meaning of _direct_ taxation? no one answ^d. m^r gerry moved to add to the 3^d sect. art: vii. the following clause "that from the first meeting of the legislature of the u. s. until a census shall be taken all monies for supplying the public treasury by direct taxation shall be raised from the several states according to the number of their representatives respectively in the first branch". m^r langdon. this would bear unreasonably hard on n. h. and he must be ag^{st} it. m^r carrol opposed it. the number of rep^s did not admit of a proportion exact enough for a rule of taxation. before any question the house adjourned. tuesday august 21. in convention governour livingston[35] from the committee of eleven to whom was referred the propositions respecting the debts of the several states and also the militia entered on the 18^{th} inst: delivered the following report: [35] "governor livingston is confessedly a man of the first rate talents, but he appears to me rather to indulge a sportiveness of wit, than a strength of thinking. he is however equal to anything, from the extensiveness of his education and genius. his writings teem with satyr and a neatness of style. but he is no orator, and seems little acquainted with the guiles of policy. he is about 60 years old, and remarkably healthy."--pierce's notes, _am. hist. rev._, iii., 327. "the legislature of the u. s. shall have power to fulfil the engagements which have been entered into by congress, and to discharge as well the debts of the u. s. as the debts incurred by the several states during the late war, for the common defence and general welfare." "to make laws for organizing arming and disciplining the militia, and for governing such part of them as may be employed in the service of the u. s. reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by the u. states." m^r gerry considered giving the power only, without adopting the obligation, as destroying the security now enjoyed by the public creditors of the u-states. he enlarged on the merit of this class of citizens, and the solemn faith which had been pledged under the existing confederation. if their situation should be changed as here proposed great opposition would be excited ag^{st} the plan. he urged also that as the states had made different degrees of exertion to sink their respective debts, those who had done most would be alarmed, if they were now to be saddled with a share of the debts of states which had done least. m^r sherman. it means neither more nor less than the confederation as it relates to this subject. m^r elseworth moved that the report delivered in by gov^r livingston should lie on the table.--agreed to nem. con. art: vii. sect. 3 resumed.--m^r dickinson moved to postpone this in order to reconsider art: iv. sect. 4. and to _limit_ the number of representatives to be allowed to the large states. unless this were done the small states would be reduced to entire insignificancy, and encouragement given to the importation of slaves. m^r sherman would agree to such a reconsideration, but did not see the necessity of postponing the section before the house.--m^r dickenson withdrew his motion. art: vii. sect 3. then agreed to 10 ays, delaware alone being no. m^r sherman moved to add to sect 3. the following clause "and all accounts of supplies furnished, services performed, and monies advanced by the several states to the u. states, or by the u. s. to the several states shall be adjusted by the same rule." m^r govern^r morris 2^{ds} the motion. m^r ghorum, thought it wrong to insert this in the constitution. the legislature will no doubt do what is right. the present congress have such a power and are now exercising it. m^r sherman unless some rule be expressly given none will exist under the new system. m^r elseworth. though the contracts of congress will be binding, there will be no rule for executing them on the states; and one ought to be provided. m^r sherman withdrew his motion to make way for one of m^r williamson to add to sect. 3. "by this rule the several quotas of the states shall be determined in settling the expences of the late war." m^r carrol brought into view the difficulty that might arise on this subject from the establishment of the constitution as intended without the _unanimous_ consent of the states. m^r williamson's motion was postponed nem. con. art: vi sect. 12. which had been postponed of aug: 15. was now called for by col. mason, who wished to know how the proposed amendment as to money bills would be decided, before he agreed to any further points. m^r gerry's motion of yesterday that previous to a census, direct taxation be proportioned on the states according to the number of representatives, was taken up. he observed that the principal acts of government would probably take place within that period, and it was but reasonable that the states should pay in proportion to their share in them. m^r elseworth thought such a rule unjust. there was a great difference between the number of represent^s and the number of inhabitants as a rule in this case. even if the former were proportioned as nearly as possible to the latter, it would be a very inaccurate rule. a state might have one representative only that had inhabitants enough for 1-1/2 or more, if fractions could be applied, &c.--. he proposed to amend the motion by adding the words, "subject to a final liquidation by the foregoing rule when a census shall have been taken." m^r madison. the last appointment of cong^s on which the number of representatives was founded, was conjectural and meant only as a temporary rule till a census should be established. m^r read. the requisitions of cong^s had been accommodated to the impoverishment produced by the war; and to other local and temporary circumstances. m^r williamson opposed m^r gerry's motion. m^r langdon was not here when n. h. was allowed three members. if it was more than her share; he did not wish for them. m^r butler contended warmly for m^r gerry's motion as founded in reason and equity. m^r elseworth's proviso to m^r gerry's motion was agreed to nem. con. m^r king thought the power of taxation given to the legislature rendered the motion of m^r gerry altogether unnecessary. on m^r gerry's motion as amended n. h. no. mass. ay. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. div^d. s. c. ay. geo. no. on a question, shall art: vi sect. 12. with the amendment to it proposed & entered on the 15 instant, as called for by col. mason be now taken up? it passed in the negative. n. h. ay. mass. no. c^t ay. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. m^r l. martin. the power of taxation is most likely to be criticised by the public. direct taxation should not be used but in cases of absolute necessity; and then the states will be the best judges of the mode. he therefore moved the following addition to sect: 3: art vii "and whenever the legislature of the u. s. shall find it necessary that revenue should be raised by direct taxation, having apportioned the same, according to the above rule on the several states, requisitions shall be made of the respective states to pay into the continental treasury their respective quotas within a time in the said requisitions specified; and in case of any of the states failing to comply with such requisitions, then and then only to devise and pass acts directing the mode, and authorizing the collection of the same." m^r m^chenry 2^{ded} the motion--there was no debate, and on the question n. h. no. c^t no. n. j. ay. pen^a no. del. no. m^d div^d. (jenifer & carol no) v^a no. n. c. no. s. c. no. geo. no. art. vii. sect. 4.--m^r langdon, by this section the states are left at liberty to tax exports. n. h. therefore with other non-exporting states, will be subject to be taxed by the states exporting its produce. this could not be admitted. it seems to be feared that the northern states will oppress the trade of the south^n. this may be guarded ag^{st} by requiring the concurrence of 2/3 or 3/4 of the legislature in such cases. m^r elseworth. it is best as it stands. the power of regulating trade between the states will protect them ag^{st} each other. should this not be the case, the attempts of one to tax the produce of another passing through its hands, will force a direct exportation and defeat themselves. there are solid reasons ag^{st} cong^s taxing exports. 1. it will discourage industry, as taxes on imports discourage luxury. 2. the produce of different states is such as to prevent uniformity in such taxes. there are indeed but a few articles that could be taxed at all; as tob^o rice & indigo, and a tax on these alone would be partial & unjust. 3. the taxing of exports would engender incurable jealousies. m^r williamson. tho' n. c. has been taxed by virg^a by a duty on 12000 hhs of her tob^o exported thro' virg^a yet he would never agree to this power. should it take place, it would destroy the last hope of an adoption of the plan. m^r gov^r morris. these local considerations ought not to impede the general interest. there is great weight in the argument, that the exporting states will tax the produce of their uncommercial neighbours. the power of regulating the trade between p^a & n. jersey will never prevent the former from taxing the latter. nor will such a tax force a direct exportation from n. jersey. the advantages possessed by a large trading city, outweigh the disadvantage of a moderate duty; and will retain the trade in that channel. if no tax can be laid on exports, an embargo cannot be laid though in time of war such a measure may be of critical importance. tobacco, lumber and live-stock are three objects belonging to different states, of which great advantage might be made by a power to tax exports. to these may be added genseng and masts for ships by which a tax might be thrown on other nations. the idea of supplying the west indies with lumber from nova scotia is one of the many follies of lord sheffield's pamphlets. the state of the country also will change, and render duties on exports, as skins, beaver & other peculiar raw materials, politic in the view of encouraging american manufactures. m^r butler was strenuously opposed to a power over exports, as unjust and alarming to the staple states. m^r langdon suggested a prohibition on the states from taxing the produce of other states exported from their harbours. m^r dickenson. the power of taxing exports may be inconvenient at present; but it must be of dangerous consequence to prohibit it with respect to all articles and for ever. he thought it would be better to except particular articles from the power. m^r sherman. it is best to prohibit the national legislature in all cases. the states will never give up all power over trade. an enumeration of particular articles would be difficult invidious and improper. m^r madison. as we ought to be governed by national and permanent views, it is a sufficient argument for giving y^e power over exports that a tax, tho' it may not be expedient at present, may be so hereafter. a proper regulation of exports may & probably will be necessary hereafter, and for the same purposes as the regulation of imports; viz, for revenue--domestic manufactures--and procuring equitable regulations from other nations. an embargo may be of absolute necessity, and can alone be effectuated by the gen^l authority. the regulation of trade between state and state cannot effect more than indirectly to hinder a state from taxing its own exports; by authorizing its citizens to carry their commodities freely into a neighbouring state which might decline taxing exports in order to draw into its channel the trade of its neighbours. as to the fear of disproportionate burthens on the more exporting states, it might be remarked that it was agreed on all hands that the revenue w^d principally be drawn from trade, and as only a given revenue would be needed, it was not material whether all should be drawn wholly from imports--or half from those, and half from exports. the imports and exports must be pretty nearly equal in every state--and relatively the same among the different states. m^r elseworth did not conceive an embargo by the congress interdicted by this section. m^r m^chenry conceived that power to be included in the power of war. m^r wilson. pennsylvania exports the produce of mary^d n. jersey, delaware & will by & by when the river delaware is opened, export for n. york. in favoring the general power over exports therefore, he opposed the particular interest of his state. he remarked that the power had been attacked by reasoning which could only have held good in case the gen^l gov^t had been _compelled_, instead of _authorized_, to lay duties on exports. to deny this power is to take from the common gov^t half the regulation of trade. it was his opinion that a power over exports might be more effectual than that over imports in obtaining beneficial treaties of commerce. m^r gerry was strenuously opposed to the power over exports. it might be made use of to compel the states to comply with the will of the gen^l government, and to grant it any new powers which might be demanded. we have given it more power already than we know how will be exercised. it will enable the gen^l gov^t to oppress the states as much as ireland is oppressed by great britain. m^r fitzimmons[36] would be ag^{st} a tax on exports to be laid immediately; but was for giving a power of laying the tax when a proper time may call for it. this would certainly be the case when america should become a manufacturing country. he illustrated his argument by the duties in g. britain on wool &c. [36] "mr. fitzsimons is a merchant of considerable talents, and speaks very well i am told, in the legislature of pennsylvania. he is about 40 years old."--pierce's notes, _am. hist. rev._, iii., 328. col. mason. if he were for reducing the states to mere corporations as seemed to be the tendency of some arguments, he should be for subjecting their exports as well as imports to a power of general taxation. he went on a principle often advanced & in which he concurred, that "a majority when interested will oppress the minority." this maxim had been verified by our own legislature (of virginia). if we compare the states in this point of view the 8 northern states have an interest different from the five south^n states; and have in one branch of the legislature 36 votes ag^{st} 29. and in the other in the proportion of 8 ag^{st} 5. the southern states had therefore ground for their suspicions. the case of exports was not the same with that of imports. the latter were the same throughout the states; the former very different. as to tobacco other nations do raise it, and are capable of raising it as well as virg^a &c. the impolicy of taxing that article had been demonstrated by the experiment of virginia. m^r clymer[37] remarked that every state might reason with regard to its particular productions, in the same manner as the southern states. the middle states may apprehend an oppression of their wheat flour, provisions &c. and with more reason, as these articles were exposed to a competition in foreign markets not incident to tob^o rice &c. they may apprehend also combinations ag^{st} them between the eastern & southern states as much as the latter can apprehend them between the eastern & middle. he moved as a qualification of the power of taxing exports that it should be restrained to regulations of trade by inserting after the word "duty" sect 4 art vii the words, "for the purpose of revenue." [37] "mr. clymer is a lawyer of some abilities;--he is a respectable man and much esteemed. mr. clymer is about 40 years old."--pierce's notes, _am. hist. rev._, iii., 328. on question on m^r clymer's motion n. h. no. mass. no. c^t no. n. j. ay. p^a ay. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r madison. in order to require 2/3 of each house to tax exports, as a lesser evil than a total prohibition moved to insert the words "unless by consent of two thirds of the legislature." m^r wilson 2^{ds} and on this question, it passed in the negative. n. h. ay. mass. ay. c^t no. n. j. ay. p^a ay. del. ay. m^d no. v^a no (col. mason, m^r randolph m^r blair no. gen^l washington & j. m. ay.) n. c. no. s. c. no. geo. no. question on sect: 4. art vii. as far as to "no tax sh^l be laid on exports"--it passed in the affirmative. n. h. no. mass. ay. c^t ay. n. j. no. p^a no. del. no. m^d ay. v^a ay. (gen^l w. & j. m. no) n. c. ay. s. c. ay. geo. ay. m^r l. martin, proposed to vary the sect: 4. art vii so as to allow a prohibition or tax on the importation of slaves. 1. as five slaves are to be counted as 3 free men in the apportionment of representatives; such a clause would leave an encouragement to this trafic. 2. slaves weakened one part of the union which the other parts were bound to protect; the privilege of importing them was therefore unreasonable. 3. it was inconsistent with the principles of the revolution and dishonorable to the american character to have such a feature in the constitution. m^r rutlidge did not see how the importation of slaves could be encouraged by this section. he was not apprehensive of insurrections and would readily exempt the other states from the obligation to protect the southern against them. religion & humanity had nothing to do with this question. interest alone is the governing principle with nations. the true question at present is whether the south^n states shall or shall not be parties to the union. if the northern states consult their interest, they will not oppose the increase of slaves which will increase the commodities of which they will become the carriers. m^r elseworth was for leaving the clause as it stands, let every state import what it pleases. the morality or wisdom of slavery are considerations belonging to the states themselves. what enriches a part enriches the whole, and the states are the best judges of their particular interest. the old confederation had not meddled with this point, and he did not see any greater necessity for bringing it within the policy of the new one. m^r pinkney. south carolina can never receive the plan if it prohibits the slave trade. in every proposed extension of the powers of congress, that state has expressly & watchfully excepted that of meddling with the importation of negroes. if the states be all left at liberty on this subject, s. carolina may perhaps by degrees do of herself what is wished, as virginia & maryland already have done. adjourned. wednesday august 22. in convention. art vii sect 4. resumed. m^r sherman was for leaving the clause as it stands. he disapproved of the slave trade; yet as the states were now possessed of the right to import slaves, as the public good did not require it to be taken from them, & as it was expedient to have as few objections as possible to the proposed scheme of government, he thought it best to leave the matter as we find it. he observed that the abolition of slavery seemed to be going on in the u. s. & that the good sense of the several states would probably by degrees compleat it. he urged on the convention the necessity of despatching its business. col. mason. this infernal traffic originated in the avarice of british merchants. the british gov^t constantly checked the attempts of virginia to put a stop to it. the present question concerns not the importing states alone but the whole union. the evil of having slaves was experienced during the late war. had slaves been treated as they might have been by the enemy, they would have proved dangerous instruments in their hands. but their folly dealt by the slaves, as it did by the tories. he mentioned the dangerous insurrections of the slaves in greece and sicily; and the instructions given by cromwell to the commissioners sent to virginia, to arm the servants & slaves, in case other means of obtaining its submission should fail. maryland & virginia he said had already prohibited the importation of slaves expressly. n. carolina had done the same in substance. all this would be in vain, if s. carolina & georgia be at liberty to import. the western people are already calling out for slaves for their new lands, and will fill that country with slaves if they can be got thro' s. carolina & georgia. slavery discourages arts & manufactures. the poor despise labor when performed by slaves. they prevent the immigration of whites, who really enrich & strengthen a country. they produce the most pernicious effect on manners. every master of slaves is born a petty tyrant. they bring the judgment of heaven on a country. as nations can not be rewarded or punished in the next world they must be in this. by an inevitable chain of causes & effects providence punishes national sins, by national calamities. he lamented that some of our eastern brethren had from a lust of gain embarked in this nefarious traffic. as to the states being in possession of the right to import, this was the case with many other rights, now to be properly given up. he held it essential in every point of view that the gen^l gov^t should have power to prevent the increase of slavery. m^r elseworth. as he had never owned a slave could not judge of the effects of slavery on character. he said however that if it was to be considered in a moral light we ought to go farther and free those already in the country.--as slaves also multiply so fast in virginia & maryland that it is cheaper to raise than import them, whilst in the sickly rice swamps foreign supplies are necessary, if we go no farther than is urged, we shall be unjust towards s. carolina & georgia. let us not intermeddle. as population increases, poor laborers will be so plenty as to render slaves useless. slavery in time will not be a speck in our country. provision is already made in connecticut for abolishing it. and the abolition has already taken place in massachusetts. as to the danger of insurrections from foreign influence, that will become a motive to kind treatment of the slaves. m^r pinkney. if slavery be wrong, it is justified by the example of all the world. he cited the case of greece rome & other antient states; the sanction given by france england, holland & other modern states. in all ages one half of mankind have been slaves. if the s. states were let alone they will probably of themselves stop importations. he w^d himself as a citizen of s. carolina vote for it. an attempt to take away the right as proposed will produce serious objections to the constitution which he wished to see adopted. general pinkney declared it to be his firm opinion that if himself & all his colleagues were to sign the constitution & use their personal influence, it would be of no avail towards obtaining the assent of their constituents. s. carolina & georgia cannot do without slaves. as to virginia she will gain by stopping the importations. her slaves will rise in value, & she has more than she wants. it would be unequal to require s. c. & georgia to confederate on such unequal terms. he said the royal assent before the revolution had never been refused to s. carolina as to virginia. he contended that the importation of slaves would be for the interest of the whole union. the more slaves, the more produce to employ the carrying trade; the more consumption also, and the more of this, the more revenue for the common treasury. he admitted it to be reasonable that slaves should be dutied like other imports, but should consider a rejection of the clause as an exclusion of s. carol^a from the union. m^r baldwin had conceived national objects alone to be before the convention, not such as like the present were of a local nature. georgia was decided on this point. that state has always hitherto supposed a gen^l governm^t to be the pursuit of the central states who wished to have a vortex for every thing--that her distance would preclude her from equal advantage--& that she could not prudently purchase it by yielding national powers. from this it might be understood in what light she would view an attempt to abridge one of her favorite prerogatives. if left to herself, she may probably put a stop to the evil. as one ground for this conjecture, he took notice of the sect of ---which he said was a respectable class of people, who carried their ethics beyond the mere _equality of men_, extending their humanity to the claims of the whole animal creation. m^r wilson observed that if s. c. & georgia were themselves disposed to get rid of the importation of slaves in a short time as had been suggested, they would never refuse to unite because the importation might be prohibited. as the section now stands all articles imported are to be taxed. slaves alone are exempt. this is in fact a bounty on that article. m^r gerry thought we had nothing to do with the conduct of the states as to slaves, but ought to be careful not to give any sanction to it. m^r dickenson considered it as inadmissible on every principle of honor & safety that the importation of slaves should be authorized to the states by the constitution. the true question was whether the national happiness would be promoted or impeded by the importation, and this question ought to be left to the national gov^t not to the states particularly interested. if eng^d & france permit slavery, slaves are at the same time excluded from both those kingdoms. greece and rome were made unhappy by their slaves. he could not believe that the south^n states would refuse to confederate on the account apprehended; especially as the power was not likely to be immediately exercised by the gen^l government. m^r williamson stated the law of n. carolina on the subject, to-wit that it did not directly prohibit the importation of slaves. it imposed a duty of â£5 on each slave imported from africa, â£10 on each from elsewhere, & â£50 on each from a state licensing manumission. he thought the s. states could not be members of the union if the clause sh^d be rejected, and that it was wrong to force any thing down not absolutely necessary, and which any state must disagree to. m^r king thought the subject should be considered in a political light only. if two states will not agree to the constitution as stated on one side, he could affirm with equal belief on the other, that great & equal opposition would be experienced from the other states. he remarked on the exemption of slaves from duty whilst every other import was subjected to it, as an inequality that could not fail to strike the commercial sagacity of the north^n & middle states. m^r langdon was strenuous for giving the power to the gen^l gov^t. he c^d not with a good conscience leave it with the states who could then go on with the traffic, without being restrained by the opinions here given that they will themselves cease to import slaves. gen^l pinkney thought himself bound to declare candidly that he did not think s. carolina would stop her importations of slaves in any short time, but only stop them occasionally as she now does. he moved to commit the clause that slaves might be made liable to an equal tax with other imports which he thought right & w^{ch} w^d remove one difficulty that had been started. m^r rutlidge. if the convention thinks that n. c. s. c. & georgia will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain. the people of those states will never be such fools as to give up so important an interest. he was strenuous ag^{st} striking out the section, and seconded the motion of gen^l pinkney for a commitment. m^r gov^r morris wished the whole subject to be committed including the clauses relating to taxes on exports & to a navigation act. these things may form a bargain among the northern & southern states. m^r butler declared that he never would agree to the power of taxing exports. m^r sherman said it was better to let the s. states import slaves than to part with them, if they made that a sine qua non. he was opposed to a tax on slaves imported as making the matter worse, because it implied they were _property_. he acknowledged that if the power of prohibiting the importation should be given to the gen^l government that it would be exercised. he thought it would be its duty to exercise the power. m^r read was for the commitment provided the clause concerning taxes on exports should also be committed. m^r sherman observed that that clause had been agreed to & therefore could not be committed. m^r randolph was for committing in order that some middle ground might, if possible, be found. he could never agree to the clause as it stands. he w^d sooner risk the constitution. he dwelt on the dilemma to which the convention was exposed. by agreeing to the clause, it would revolt the quakers, the methodists, and many others in the states having no slaves. on the other hand, two states might be lost to the union. let us then, he said, try the chance of a commitment. on the question for committing the remaining part of sect. 4 & 5. of art: 7. n. h. no. mass. abt^t con^t ay. n. j. ay. p^a no. del. no. mary^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r pinkney & m^r langdon moved to commit sect. 6. as to navigation act by two thirds of each house. m^r gorham did not see the propriety of it. is it meant to require a greater proportion of votes? he desired it to be remembered that the eastern states had no motive to union but a commercial one. they were able to protect themselves. they were not afraid of external danger, and did not need the aid of the south^n states. m^r wilson wished for a commitment in order to reduce the proportion of votes required. m^r elseworth was for taking the plan as it is. this widening of opinions has a threatening aspect. if we do not agree on this middle & moderate ground he was afraid we should lose two states, with such others as may be disposed to stand aloof, should fly into a variety of shapes & directions, and most probably into several confederations and not without bloodshed. on question for committing 6 sect. as to navigation act to a member from each state- n. h. ay. mas. ay. c^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. the committee appointed were m^r langdon, king, johnson, livingston, clymer, dickenson, l. martin, madison, williamson, c. c. pinkney, & baldwin. to this committee were referred also the two clauses above mentioned, of the 4 & 5. sect: of art. 7. m^r rutlidge from the committee to whom were referred on the 18 & 20^{th} instant the propositions of m^r madison & m^r pinkney made the report following:[38] [38] madison's note says: ("here insert report from journal of the convention of the date.") it is found on p. 227, 228, of the journal and is as above. "the committee report, that in their opinion the following additions should be made to the report now before the convention, namely, "at the end of the first clause of the first section of the seventh article add, 'for payment of the debts and necessary expenses of the united states; provided that no law for raising any branch of revenue, except what may be specially appropriated for the payment of interest on debts or loans, shall continue in force for more than ---years.' "at the end of the second clause, second section, seventh article, add, 'and with indians, within the limits of any state, not subject to the laws thereof.' "at the end of the sixteenth clause of the second section, seventh article, add, 'and to provide, as may become necessary, from time to time, for the well managing and securing the common property and general interests and welfare of the united states in such manner as shall not interfere with the governments of individual states, in matters which respect only their internal police, or for which their individual authority may be competent.' "at the end of the first section, tenth article, add, 'he shall be of the age of thirty-five years, and a citizen of the united states, and shall have been an inhabitant thereof for twenty-one years.' "after the second section of the tenth article, insert the following as a third section: "'the president of the united states shall have a privy council, which shall consist of the president of the senate, the speaker of the house of representatives, the chief justice of the supreme court, and the principal officer in the respective departments of foreign affairs, domestic affairs, war, marine, and finance, as such departments of office shall from time to time be established, whose duty it shall be to advise him in matters respecting the execution of his office, which he shall think proper to lay before them: but their advice shall not conclude him, nor affect his responsibility for the measures which he shall adopt.' "at the end of the second section of the eleventh article, add, 'the judges of the supreme court shall be triable by the senate, on impeachment by the house of representatives.' "between the fourth and fifth lines of the third section of the eleventh article, after the word 'controversies,' insert, 'between the united states and an individual state, or the united states and an individual person.'" a motion to rescind the order of the house respecting the hours of meeting & adjourning, was negatived: mass: p^a del. mar^d ay. n. h. con: n. j. v^a n. c. s. c. geo. no. m^r gerry and m^r m^chenry moved to insert after the 2^d sect. art: 7, the clause following, to wit, "the legislature shall pass no bill of attainder nor any ex post facto law."[39] [39] the proceedings on this motion involving the two questions on "attainders and ex post facto laws," are not so fully stated in the printed journal.--madison's note. m^r gerry urged the necessity of this prohibition, which he said was greater in the national than the state legislature, because the number of members in the former being fewer, they were on that account the more to be feared. m^r gov^r morris thought the precaution as to ex post facto laws unnecessary; but essential as to bills of attainder. m^r elseworth contended that there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves. it cannot then be necessary to prohibit them. m^r wilson was against inserting any thing in the constitution as to ex post facto laws. it will bring reflections on the constitution--and proclaim that we are ignorant of the first principles of legislation, or are constituting a government that will be so. the question being divided, the first part of the motion relating to bills of attainder was agreed to nem contradicente. on the second part relating to ex post facto laws-m^r carrol remarked that experience overruled all other calculations. it had proved that in whatever light they might be viewed by civilians or others, the state legislatures had passed them, and they had taken effect. m^r wilson. if these prohibitions in the state constitutions have no effect, it will be useless to insert them in this constitution. besides, both sides will agree to the principle, and will differ as to its application. m^r williamson. such a prohibitory clause is in the constitution of n. carolina, and tho it has been violated, it has done good there & may do good here, because the judges can take hold of it. doc^r johnson thought the clause unnecessary, and implying an improper suspicion of the national legislature. m^r rutlidge was in favor of the clause. on the question for inserting the prohibition of ex post facto laws. n. h. ay. mas. ay. con^t no. n. j. no. p^a no. del. ay. m^d ay. virg^a ay. n. c. div^d. s. c. ay. geo. ay. the report of the committee of 5. made by m^r rutlidge, was taken up and then postponed that each member might furnish himself with a copy. the report of the committee of eleven delivered in & entered on the journal of the 21^{st} inst. was then taken up, and the first clause containing the words "the legislature of the u. s. _shall have power_ to fulfil the engagements which have been entered into by congress" being under consideration, m^r elseworth argued that they were unnecessary. the u. s. heretofore entered into engagements by cong^s who were their agents. they will hereafter be bound to fulfil them by their new agents. m^r randolph thought such a provision necessary: for though the u. states will be bound, the new gov^t will have no authority in the case unless it be given to them. m^r madison thought it necessary to give the authority in order to prevent misconstruction. he mentioned the attempts made by the debtors to british subjects to shew that contracts under the old government, were dissolved by the revolution which destroyed the political identity of the society. m^r gerry thought it essential that some explicit provision should be made on this subject, so that no pretext might remain for getting rid of the public engagements. m^r gov^r morris moved by way of amendment to substitute--"the legislature _shall_ discharge the debts & fulfil the engagements of the u. states." it was moved to vary the amendment by striking out "discharge the debts" & to insert "liquidate the claims," which being negatived, the amendment moved by m^r gov^r morris was agreed to all the states being in the affirmative. it was moved & 2^{ded} to strike the following words out of the 2^d clause of the report "and the authority of training the militia according to the discipline prescribed by the u. s." before a question was taken the house adjourned. thursday in convention aug: 23, 1787 the report of the committee of eleven made aug: 21. being taken up, and the following clause being under consideration to wit "to make laws for organizing, arming & disciplining the militia, and for governing such parts of them as may be employed in the service of the u. s. reserving to the states respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed." m^r sherman moved to strike out the last member "and authority of training" &c. he thought it unnecessary. the states will have this authority of course if not given up. m^r elseworth doubted the propriety of striking out the sentence. the reason assigned applies as well to the other reservation of the appointment to offices. he remarked at the same time that the term discipline was of vast extent and might be so expounded as to include all power on the subject. m^r king, by way of explanation, said that by _organizing_, the committee meant, proportioning the officers & men--by _arming_, specifying the kind size & caliber of arms--& by _disciplining_, prescribing the manual exercise evolutions &c. m^r sherman withdrew his motion. m^r gerry. this power in the u. s. as explained is making the states drill-sergeants. he had as lief let the citizens of massachusetts be disarmed, as to take the command from the states, and subject them to the gen^l legislature. it would be regarded as a system of despotism. m^r madison observed that "_arming_" as explained did not extend to furnishing arms; nor the term "_disciplining_" to penalties & courts martial for enforcing them. m^r king added to his former explanation that _arming_ meant not only to provide for uniformity of arms, but included the authority to regulate the modes of furnishing, either by the militia themselves, the state governments, or the national treasury; that _laws_ for disciplining, must involve penalties and every thing necessary for enforcing penalties. m^r dayton moved to postpone the paragraph, in order to take up the following proposition. "to establish an uniform & general system of discipline for the militia of these states, and to make laws for organizing, arming, disciplining & governing _such part of them as may be employed in the service of the u. s._, reserving to the states respectively the appointment of the officers, and all authority over the militia not herein given to the general government." on the question to postpone in favor of this proposition: it passed in the negative. n. h. no. mas. no. c^t no. n. j. ay. p. no. del. no. mary^d ay. v^a no. n. c. no. s. c. no. geo. ay. m^r elseworth & m^r sherman moved to postpone the 2^d clause in favor of the following "to establish an uniformity of arms, exercise & organization for the militia, and to provide for the government of them when called into the service of the u. states." the object of this proposition was to refer the plan for the militia to the general gov^t but to leave the execution of it to the state gov^{ts}. mr. langdon said he could not understand the jealousy expressed by some gentlemen. the general & state gov^{ts} were not enemies to each other, but different institutions for the good of the people of america. as one of the people he could say, the national gov^t is mine, the state gov^t is mine. in transferring power from one to the other, i only take out of my left hand what it cannot so well use, and put it into my right hand where it can be better used. m^r gerry thought it was rather taking out of the right hand & putting it into the left. will any man say that liberty will be as safe in the hands of eighty or a hundred men taken from the whole continent, as in the hands of two or three hundred taken from a single state. m^r dayton was against so absolute a uniformity. in some states there ought to be a greater proportion of cavalry than in others. in some places rifles would be most proper, in others muskets &c. gen^l pinkney preferred the clause reported by the committee, extending the meaning of it to the case of fines &c. m^r madison. the primary object is to secure an effectual discipline of the militia. this will no more be done if left to the states separately than the requisitions have been hitherto paid by them. the states neglect their militia now, and the more they are consolidated into one nation, the less each will rely on its own interior provisions for its safety & the less prepare its militia for that purpose; in like manner as the militia of a state would have been still more neglected than it has been if each county had been independently charged with the care of its militia. the discipline of the militia is evidently a _national_ concern, and ought to be provided for in the _national_ constitution. m^r l. martin was confident that the states would never give up the power over the militia; and that, if they were to do so, the militia would be less attended to by the gen^l than by the state governments. m^r randolph asked what danger there could be that the militia could be brought into the field and made to commit suicide on themselves. this is a power that cannot from its nature be abused, unless indeed the whole mass should be corrupted. he was for trammelling the gen^l gov^t whenever there was danger, but here there could be none. he urged this as an essential point; observing that the militia were every where neglected by the state legislatures, the members of which courted popularity too much to enforce a proper discipline. leaving the appointment of officers to the states protects the people ag^{st} every apprehension that could produce murmur. on question on m^r elsworth's motion n. h. no. mass. no. c^t ay. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. a motion was then made to recommit the 2^d clause which was negatived. on the question to agree to the 1^{st} part of the clause, namely "to make laws for organizing arming & disciplining the militia, and for governing such part of them as may be employed in the service of the u. s." n. h. ay. mas. ay. c^t no. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r madison moved to amend the next part of the clause so as to read "reserving to the states respectively, the appointment of the officers, _under the rank of general officers_." m^r sherman considered this as absolutely inadmissible. he said that if the people should be so far asleep as to allow the most influential officers of the militia to be appointed by the gen^l government, every man of discernment would rouse them by sounding the alarm to them. m^r gerry. let us at once destroy the state gov^{ts} have an executive for life or hereditary, and a proper senate, and then there would be some consistency in giving full powers to the gen^l gov^t but as the states are not to be abolished, he wondered at the attempts that were made to give powers inconsistent with their existence. he warned the convention ag^{st} pushing the experiment too far. some people will support a plan of vigorous government at every risk. others of a more democratic cast will oppose it with equal determination, and a civil war may be produced by the conflict. m^r madison. as the greatest danger is that of disunion of the states, it is necessary to guard ag^{st} it by sufficient powers to the common gov^t and as the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good militia. on the question to agree to m^r madison's motion n. h. ay. mas. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay.[40] [40] in the printed journal, geo: no.--madison's note. on the question to agree to the "reserving to the states the appointment of the officers." it was agreed to nem: contrad: on the question on the clause "and the authority of training the militia according to the discipline prescribed by the u. s."- n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a no. n. c. ay. s. c. no. geo. no. on the question to agree to art. vii. sect. 7. as reported it passed nem: contrad. m^r pinkney urged the necessity of preserving foreign ministers & other officers of the u. s. independent of external influence and moved to insert, after art. vii sect 7. the clause following--"no person holding any office of profit or trust under the u. s. shall without the consent of the legislature, accept of any present, emolument, office or title of any kind whatever, from any king, prince or foreign state", which passed nem: contrad: m^r rutlidge moved to amend art: viii to read as follows, "this constitution & the laws of the u. s. made in pursuance thereof, and all the treaties made under the authority of the u. s. shall be the supreme law of the several states and of their citizens and inhabitants; and the judges in the several states shall be bound thereby in their decisions, any thing in the constitutions or laws of the several states, to the contrary notwithstanding." which was agreed to, nem: contrad: art: ix being next for consideration, m^r gov^r morris argued ag^{st} the appointment of officers by the senate. he considered the body as too numerous for the purpose; as subject to cabal; and as devoid of responsibility. if judges were to be tried by the senate according to a late report of a committee it was particularly wrong to let the senate have the filling of vacancies which its own decrees were to create. m^r wilson was of the same opinion & for like reasons. the art. ix. being waved, and art. vii. sect. 1. resumed, m^r gov^r morris moved to strike the following words out of the 18 clause "enforce treaties" as being superfluous, since treaties were to be "laws"--which was agreed to nem: contrad: m^r gov^r morris moved to alter 1^{st} part. of 18. clause sect. 1. art vii so as to read "to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions"--which was agreed to nem: contrad: on the question then to agree to the 18 clause of sect. 1. art: 7. as amended it passed in the affirmative nem: contrad. m^r c. pinkney moved to add as an additional power to be vested in the legislature of the u. s. "to negative all laws passed by the several states interfering in the opinion of the legislature with the general interests and harmony of the union; provided that two thirds of the members of each house assent to the same." this principle he observed had formerly been agreed to. he considered the precaution as essentially necessary. the objection drawn from the predominance of the large states had been removed by the equality established in the senate.[41] [41] "richmond aug^t 22. 87. "dear sir, * * * * * "i have still some hope that i shall hear from you of y^e reinstatement of y^e _negative_--as it is certainly y^e only means by which the several legislatures can be restrained from disturbing y^e order & harmony of y^e whole, & y^e governm^t render'd properly _national_, & _one_. i should suppose y^t some of its former opponents must by this time have seen y^e necessity of advocating it, if they wish to support their own principles." (james mcclurg to madison--mad. mss.) m^r broome 2^{ded} the proposition. m^r sherman thought it unnecessary; the laws of the general government being supreme & paramount to the state laws according to the plan, as it now stands. m^r madison proposed that it should be committed. he had been from the beginning a friend to the principle; but thought the modification might be made better. m^r mason wished to know how the power was to be exercised. are all laws whatever to be brought up? is no road nor bridge to be established without the sanction of the general legislature? is this to sit constantly in order to receive & revise the state laws?--he did not mean by these remarks to condemn the expedient, but he was apprehensive that great objections would lie ag^{st} it. m^r williamson thought it unnecessary, having been already decided, a revival of the question was a waste of time. m^r wilson considered this as the key-stone wanted to compleat the wide arch of government we are raising. the power of self-defence had been urged as necessary for the state governments. it was equally necessary for the general government. the firmness of judges is not of itself sufficient. something further is requisite. it will be better to prevent the passage of an improper law, than to declare it void when passed. m^r rutlidge. if nothing else, this alone would damn and ought to damn the constitution. will any state ever agree to be bound hand & foot in this manner. it is worse than making mere corporations of them whose bye laws would not be subject to this shackle. m^r elseworth observed that the power contended for w^d require either that all laws of the state legislatures should previously to their taking effect be transmitted to the gen^l legislature, or be repealable by the latter; or that the state executives should be appointed by the gen^l government, and have a controul over the state laws. if the last was meditated let it be declared. m^r pinkney declared that he thought the state executives ought to be so appointed with such a controul, & that it would be so provided if another convention should take place. m^r govern^r morris did not see the utility or practicability of the proposition of m^r pinkney, but wished it to be referred to the consideration of a committee. m^r langdon was in favor of the proposition. he considered it as resolvable into the question whether the extent of the national constitution was to be judged of by the gen^l or the state governments. on the question for commitment, it passed in the negative. n. h. ay. mass^{ts} no. con^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. m^r pinkney then withdrew his proposition. the 1^{st} sect. of art: vii being so amended as to read "the legislature _shall_ fulfil the engagements and discharge the debts of the u. s. & shall have the power to lay & collect taxes duties imposts & excises," was agreed to. m^r butler expressed his dissatisfaction lest it should compel payment as well to the blood-suckers who had speculated on the distresses of others, as to those who had fought & bled for their country. he would be ready he said to-morrow to vote for a discrimination between those classes of people, and gave notice that he should move for a reconsideration. art ix sect. 1. being resumed, to wit "the senate of the u. s. shall have power to make treaties, and to appoint ambassadors, and judges of the supreme court." m^r madison observed that the senate represented the states alone, and that for this as well as other obvious reasons it was proper that the president should be an agent in treaties. m^r gov^r morris did not know that he should agree to refer the making of treaties to the senate at all, but for the present w^d move to add, as an amendment to the section after "treaties"--"but no treaty shall be binding on the u. s. which is not ratified by a law." m^r madison suggested the inconvenience of requiring a legal _ratification_ of treaties of alliance for the purposes of war &c &c." m^r ghorum. many other disadvantages must be experienced if treaties of peace & all negotiations are to be previously ratified--and if not previously, the ministers would be at a loss how to proceed. what would be the case in g. britain if the king were to proceed in this manner. american ministers must go abroad not instructed by the same authority (as will be the case with other ministers) which is to ratify their proceedings. m^r gov^r morris. as to treaties of alliance, they will oblige foreign powers to send their ministers here the very thing we should wish for. such treaties could not be otherwise made, if his amendment sh^d succeed. in general he was not solicitious to multiply & facilitate treaties. he wished none to be made with g. britain, till she should be at war. then a good bargain might be made with her. so with other foreign powers. the more difficulty in making treaties, the more value will be set on them. m^r wilson. in the most important treaties, the king of g. britain being obliged to resort to parliament for the execution of them, is under the same fetters as the amendment of m^r morris' will impose on the senate. it was refused yesterday to permit even the legislature to lay duties on exports. under the clause without the amendment, the senate alone can make a treaty, requiring all the rice of s. carolina to be sent to some one particular port. m^r dickinson concurred in the amendment, as most safe and proper, tho' he was sensible it was unfavorable to the little states, w^{ch} would otherwise have an _equal_ share in making treaties. doc^r johnson thought there was something of solecism in saying that the acts of a minister with plenipotentiary powers from one body, should depend for ratification on another body. the example of the king of g. b. was not parallel. full & compleat power was vested in him. if the parliament should fail to provide the necessary means of execution, the treaty would be violated. m^r ghorum in answer to m^r gov^r morris, said that negotiations on the spot were not to be desired by us, especially if the whole legislature is to have any thing to do with treaties. it will be generally influenced by two or three men, who will be corrupted by the ambassadors here. in such a government as ours, it is necessary to guard against the government itself being seduced. m^r randolph observing that almost every speaker had made objections to the clause as it stood, moved in order to a further consideration of the subject, that the motion of m^r gov^r morris should be postponed, and on this question it was lost the states being equally divided. mass^{ts} no. con^t no. n. j. ay. pen^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. on m^r gov^r morris motion mass^{ts} no. con^t no. n. j. no. p^a ay. del. no. m^d no. v^a no. n. c. div^d. s. c. no. geo. no. the several clauses of sect: 1. art ix, were then separately postponed after inserting "and other public ministers" next after "ambassadors." m^r madison hinted for consideration, whether a distinction might not be made between different sorts of treaties--allowing the president & senate to make treaties eventual and of alliance for limited terms--and requiring the concurrence of the whole legislature in other treaties. the 1^{st} sect art ix. was finally referred nem: con: to the committee of five, and the house then adjourned. friday august 24. 1787. in convention governour livingston, from the committee of eleven, to whom were referred the two remaining clauses of the 4^{th} sect & the 5 & 6 sect: of the 7^{th}. art: delivered in the following report: "strike out so much of the 4^{th} sect: as was referred to the committee and insert--'the migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the legislature prior to the year 1800, but a tax or duty may be imposed on such migration or importation at a rate not exceeding the average of the duties laid on imports.'" "the 5 sect: to remain as in the report." "the 6 sect, to be stricken out." m^r butler, according to notice, moved that clause 1^{st} sect. 1. of art vii, as to the discharge of debts, be reconsidered tomorrow. he dwelt on the division of opinion concerning the domestic debts, and the different pretensions of the different classes of holders. gen^l pinkney 2^{ded} him. m^r randolph wished for a reconsideration in order to better the expression, and to provide for the case of the state debts as is done by congress. on the question for reconsidering n. h. no. mass. ay. con^t ay. n. j. ay. pen^a absent. del. ay. m^d no. v^a ay. n. c. absent. s. c. ay. geo. ay.--and tomorrow assigned for the reconsideration. sect: 2 & 3 of art: ix being taken up, m^r rutlidge said this provision for deciding controversies between the states was necessary under the confederation, but will be rendered unnecessary by the national judiciary now to be established, and moved to strike it out. doc^r johnson 2^{ded} the motion. m^r sherman concurred: so did m^r dayton. m^r williamson was for postponing instead of striking out, in order to consider whether this might not be a good provision, in cases where the judiciary were interested or too closely connected with the parties. m^r ghorum had doubts as to striking out. the judges might be connected with the states being parties--he was inclined to think the mode proposed in the clause would be more satisfactory than to refer such cases to the judiciary. on the question for postponing the 2^d & 3^d section it passed in the negative. n. h. ay. mass^{ts} no. con^t no. n. j. no. pen^a abs^t. del. no. m^d no. v^a no. n. c. ay. s. c. no. geo. ay. m^r wilson urged the striking out, the judiciary being a better provision. on question for striking out 2 & 3 sections art: ix n. h. ay. mass. ay. c^t ay. n. j. ay. p^a abs^t. del. ay. m^d ay. v^a ay. n. c. no. s. c. ay. geo. no. art x. sect. 1. "the executive power of the u. s. shall be vested in a single person. his stile shall be "the president of the u. s. of america" and his title shall be "his excellency." he shall be elected by ballot by the legislature. he shall hold his office during the term of seven years; but shall not be elected a second time." on the question for vesting the power in a _single person_--it was agreed to nem: con: so also on the _stile_ and _title_. m^r rutlidge moved to insert "joint" before the word "ballot," as the most convenient mode of electing. m^r sherman objected to it as depriving the _states_ represented in the _senate_ of the negative intended them in that house. m^r ghorum said it was wrong to be considering at every turn whom the senate would represent. the public good was the true object to be kept in view. great delay and confusion would ensue if the two houses sh^d vote separately, each having a negative on the choice of the other. m^r dayton. it might be well for those not to consider how the senate was constituted, whose interest it was to keep it out of sight.--if the amendment should be agreed to, a _joint_ ballot would in fact give the appointment to one house. he could never agree to the clause with such an amendment. there could be no doubt of the two houses separately concurring in the same person for president. the importance & necessity of the case would ensure a concurrence. m^r carrol moved to strike out "by the legislature" and insert "by the people." m^r wilson 2^{ded}. him & on the question n. h. no. mass^{ts} no. con^t no. n. j. no. p^a ay. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r brearly was opposed to the motion for inserting the word "joint." the argument that the small states should not put their hands into the pockets of the large ones did not apply in this case. m^r wilson urged the reasonableness of giving the larger states a larger share of the appointment, and the danger of delay from a disagreement of the two houses. he remarked also that the senate had peculiar powers balancing the advantage given by a joint ballot in this case to the other branch of the legislature. m^r langdon. this general officer ought to be elected by the joint & general voice. in n. hampshire the mode of separate votes by the two houses was productive of great difficulties. the negative of the senate would hurt the feelings of the man elected by the votes of the other branch. he was for inserting "joint" tho' unfavorable to n. hampshire as a small state. m^r wilson remarked that as the president of the senate was to be the president of the u. s. that body in cases of vacancy might have an interest in throwing dilatory obstacles in the way, if its separate concurrence should be required. m^r madison. if the amendment be agreed to the rule of voting will give to the largest state, compared with the smallest, an influence as 4 to 1 only, altho the population is as 10 to 1. this surely cannot be unreasonable as the president is to act for the _people_ not for the _states_. the president of the _senate_ also is to be occasionally president of the u. s. and by his negative alone can make 3/4 of the other branch necessary to the passage of a law. this is another advantage enjoyed by the senate. on the question for inserting "joint," it passed in the affirmative. n. h. ay. mass^{ts} ay. c^t no. n. j. no. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. no. m^r dayton then moved to insert, after the word "legislatures" the words "each state having one vote." m^r brearly 2^{ded} him, and on the question it passed in the negative. n. h. no. mas. no. c^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. ay. m^r pinkney moved to insert after the word "legislature" the words "to which election a majority of the votes of the members present shall be required" & on this question, it passed in the affirmative. n. h. ay. mass. ay. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r read moved "that in case the numbers for the two highest in votes should be equal, then the president of the senate shall have an additional casting vote," which was disagreed to by a general negative. m^r gov^r morris opposed the election of the president by the legislature. he dwelt on the danger of rendering the executive uninterested in maintaining the rights of his station, as leading to legislative tyranny. if the legislature have the executive dependent on them, they can perpetuate & support their usurpations by the influence of tax-gatherers & other officers, by fleets armies &c. cabal & corruption are attached to that mode of election: so also is ineligibility a second time. hence the executive is interested in courting popularity in the legislature by sacrificing his executive rights; & then he can go into that body, after the expiration of his executive office, and enjoy there the fruits of his policy. to these considerations he added that rivals would be continually intriguing to oust the president from his place. to guard against all these evils he moved that the president "shall be chosen by electors to be chosen by the people of the several states." m^r carrol 2^{ded} him & on the question it passed in the negative n. h. no. mass. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. no. s. c. no. geo. no. m^r dayton moved to postpone the consideration of the two last clauses of sect. 1. art x. which was disagreed to without a count of the states. m^r broome moved to refer the two clauses to a committee of a member from each state, & on the question, it failed the states being equally divided. n. h. no. mas. no. c^t div^d. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. on the question taken on the first part of m^r gov^r morris's motion to wit "shall be chosen by electors" as an abstract question, it failed the states being equally divided, n. h. no. mas. abs^t. c^t div^d. n. jersey ay. p^a ay. del. ay. m^d div^d. v^a ay. n. c. no. s. c. no. geo. no. the consideration of the remaining clauses of sect. 1. art. x. was then postponed till tomorrow at the instance of the deputies of new jersey. sect. 2. art: x being taken up, the word information was transposed & inserted after "legislature." on motion of m^r gov^r morris, "he may" was struck out, & "and" inserted before "recommend" in the clause 2^d sect 2^d art: x. in order to make it the _duty_ of the president to recommend, & thence prevent umbrage or cavil at his doing it. m^r sherman objected to the sentence "and shall appoint officers in all cases not otherwise provided for by this constitution." he admitted it to be proper that many officers in the executive department should be so appointed--but contended that many ought not, as general officers in the army in time of peace &c. herein lay the corruption in g. britain. if the executive can model the army, he may set up an absolute government; taking advantage of the close of a war and an army commanded by his creatures. james 2^d was not obeyed by his officers because they had been appointed by his predecessors not by himself. he moved to insert "or by law" after the word "constitution." on motion of m^r madison "officers" was struck out and "to offices" inserted, in order to obviate doubts that he might appoint officers without a previous creation of the offices by the legislature. on the question for inserting "or by law" as moved by m^r sherman n. h. no. mas. no. c^t ay. n. j. no. pen^a no. del. no. m^d no. v^a no. n. c. absent. s. c. no. geo. no. m^r dickinson moved to strike out the words "and shall appoint to offices in all cases not otherwise provided for by this constitution" and insert--"and shall appoint to all offices established by this constitution, except in cases herein otherwise provided for, and to all offices which may hereafter be created by law." m^r randolph observed that the power of appointments was a formidable one both in the executive & legislative hands--and suggested whether the legislature should not be left at liberty to refer appointments in some cases, to some state authority. m^r dickenson's motion, it passed in the affirmative. n. h. no. mas. no. c^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. abs^t. s. c. no. geo. ay. m^r dickinson then moved to annex to his last amendment "except where by law the appointment shall be vested in the legislatures or executives of the several states." m^r randolph 2^{ded} the motion. m^r wilson. if this be agreed to it will soon be a standing instruction from the state legislatures to pass no law creating offices, unless the app^{ts} be referred to them. m^r sherman objected to "legislatures" in the motion, which was struck out by consent of the movers. m^r gov^r morris. this would be putting it in the power of the states to say, "you shall be viceroys but we will be viceroys over you"-the motion was negatived without a count of the states-ordered unanimously that the order respecting the adjournment at 4 oclock be repealed, & that in future the house assemble at 10 oc. & adjourn at 3 oc. adjourned. saturday august 25. 1787. in convention the 1^{st} clause of 1 sect. of art: vii being reconsidered col. mason objected to the term "_shall_"--fullfil the engagements & discharge the debts &c. as too strong. it may be impossible to comply with it. the creditors should be kept in the same plight. they will in one respect be necessarily and properly in a better. the government will be more able to pay them. the use of the term _shall_ will beget speculations and increase the pestilent practice of stock-jobbing. there was a great distinction between original creditors & those who purchased fraudulently of the ignorant and distressed. he did not mean to include those who have bought stock in open market. he was sensible of the difficulty of drawing the line in this case, but he did not wish to preclude the attempt. even fair purchasers at 4. 5. 6. 8 for 1 did not stand on the same footing with the first holders, supposing them not to be blameable. the interest they receive even in paper, is equal to their purchase money. what he particularly wished was to leave the door open for buying up the securities, which he thought would be precluded by the term "shall" as requiring _nominal payment_, & which was not inconsistent with his ideas of public faith. he was afraid also the word "_shall_," might extend to all the old continental paper. m^r langdon wished to do no more than leave the creditors in statu quo. m^r gerry said that for himself he had no interest in the question being not possessed of more of the securities than would, by the interest, pay his taxes. he would observe however that as the public had received the value of the literal amount, they ought to pay that value to some body. the frauds on _the soldiers_ ought to have been foreseen. these poor & ignorant people could not but part with their securities. there are other creditors who will part with any thing rather than be cheated of the capital of their advances. the interest of the states he observed was different on this point, some having more, others less than their proportion of the paper. hence the idea of a scale for reducing its value had arisen. if the public faith would admit, of which he was not clear, he would not object to a revision of the debt so far as to compel restitution to the ignorant & distressed, who have been defrauded. as to stock-jobbers he saw no reason for the censures thrown on them. they keep up the value of the paper. without them there would be no market. m^r butler said he meant neither to increase nor diminish the security of the creditors. m^r randolph moved to postpone the clause in favor of the following "all debts contracted & engagements entered into, by or under the authority of cong^s shall be as valid ag^{st} the u. states under this constitution as under the confederation." doc^r johnson. the debts are debts of the u. s. of the great body of america. changing the government cannot change the obligation of the u. s. which devolves of course on the new government. nothing was in his opinion necessary to be said. if any thing, it should be a mere declaration as moved by m^r randolph. m^r gov^r morris, said he never had become a public creditor that he might urge with more propriety the compliance with public faith. he had always done so and always would, and preferr'd the term "_shall_" as the most explicit. as to _buying up_ the debt, the term "_shall_" was not inconsistent with it, if provision be first made for paying the interest: if not, such an expedient was a mere evasion. he was content to say nothing as the new government would be bound of course, but would prefer the clause with the term "_shall_," because it would create many friends to the plan. on m^r randolph's motion n. h. ay. mas. ay. c^t ay. n. j. ay. p^a no. del. ay. mary^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r sherman thought it necessary to connect with the clause for laying taxes duties &c. an express provision for the object of the old debts &c.--and moved to add to the 1^{st} clause of 1^{st} sect. art vii "for the payment of said debts and for the defraying the expences that shall be incurred for the common defence and general welfare." the proposition, as being unnecessary was disagreed to, connecticut alone, being in the affirmative. the report of the committee of eleven (see friday the 24^{th} instant) being taken up, gen^l pinkney moved to strike out the words, "the year eighteen hundred" as the year limiting the importation of slaves, and to insert the words "the year eighteen hundred and eight." m^r ghorum 2^{ded} the motion. m^r madison. twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. so long a term will be more dishonourable to the national character than to say nothing about it in the constitution. on the motion; which passed in the affirmative, n. h. ay. mas. ay. c^t ay. n. j. no. p^a no. del. no. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay. m^r gov^r morris was for making the clause read at once, "the importation of slaves into n. carolina, s. carolina & georgia shall not be prohibited &c." this he said would be most fair and would avoid the ambiguity by which, under the power with regard to naturalization, the liberty reserved to the states might be defeated. he wished it to be known also that this part of the constitution was a compliance with those states. if the change of language however should be objected to by the members from those states, he should not urge it. col. mason was not against using the term "slaves" but ag^{st} naming n. c. s. c. & georgia, lest it should give offence to the people of those states. m^r sherman liked a description better than the terms proposed, which had been declined by the old cong^s & were not pleasing to some people. m^r clymer concurred with m^r sherman. m^r williamson said that both in opinion & practice he was against slavery; but thought it more in favor of humanity, from a view of all circumstances, to let in s. c. & georgia on those terms, than to exclude them from the union. m^r gov^r morris withdrew his motion. m^r dickenson wished the clause to be confined to the states which had not themselves prohibited the importation of slaves, and for that purpose moved to amend the clause so as to read "the importation of slaves into such of the states as shall permit the same shall not be prohibited by the legislature of the u. s. until the year 1808"--which was disagreed to nem: con:[42] [42] in the printed journals, con^t virg^a & georgia voted in the affirmative.--madison's note. the first part of the report was then agreed to, amended as follows. "the migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the legislature prior to the year 1808." n. h. mas. con. m^d n. c. s. c. geo: ay. n. j. p^a del. virg^a no. m^r baldwin in order to restrain & more explicitly define "the average duty" moved to strike out of the 2^d part the words "average of the duties laid on imports" and insert "common impost on articles not enumerated" which was agreed to nem: cont: m^r sherman was ag^{st} this 2^d part, as acknowledging men to be property, by taxing them as such under the character of slaves. m^r king & m^r langdon considered this as the price of the 1^{st} part. gen^l pinkney admitted that it was so. col. mason. not to tax, will be equivalent to a bounty on the importation of slaves. m^r ghorum thought that m^r sherman should consider the duty, not as implying that slaves are property, but as a discouragement to the importation of them. m^r gov^r morris remarked that as the clause now stands it implies that the legislature may tax freemen imported. m^r sherman in answer to m^r ghorum observed that the smallness of the duty shewed revenue to be the object, not the discouragement of the importation. m^r madison thought it wrong to admit in the constitution the idea that there could be property in men. the reason of duties did not hold, as slaves are not like merchandize, consumed, &c. col. mason (in answ^r to gov^r morris) the provision as it stands was necessary for the case of convicts in order to prevent the introduction of them. it was finally agreed nem. contrad: to make the clause read "but a tax or duty may be imposed on such importation not exceeding ten dollars for each person," and then the 2^d part as amended was agreed to. sect 5. art. vii was agreed to nem: con: as reported. sect. 6. art. vii. in the report, was postponed. on motion of m^r madison 2^{ded} by m^r gov^r morris article viii was reconsidered and after the words "all treaties made," were inserted nem: con: the words "or which shall be made." this insertion was meant to obviate all doubt concerning the force of treaties preexisting, by making the words "all treaties made" to refer to them, as the words inserted would refer to future treaties. m^r carrol and m^r l. martin expressed their apprehensions, and the probable apprehensions of their constituents, that under the power of regulating trade the general legislature, might favor the ports of particular states, by requiring vessels destined to or from other states to enter & clear thereat, as vessels belonging or bound to baltimore, to enter & clear at norfolk &c. they moved the following proposition "the legislature of the u. s. shall not oblige vessels belonging to citizens thereof, or to foreigners, to enter or pay duties or imposts in any other state than in that to which they may be bound, or to clear out in any other than the state in which their cargoes may be laden on board; nor shall any privilege or immunity be granted to any vessel on entering or clearing out, or paying duties or imposts in one state in preference to another." m^r ghorum thought such a precaution unnecessary; & that the revenue might be defeated, if vessels could run up long rivers, through the jurisdiction of different states without being required to enter, with the opportunity of landing & selling their cargoes by the way. m^r m^chenry & gen^l pinkney made the following propositions "should it be judged expedient by the legislature of the u. s. that one or more port for collecting duties or imposts other than those ports of entrance & clearance already established by the respective states, should be established, the legislature of the u. s. shall signify the same to the executives of the respective states, ascertaining the number of such ports judged necessary; to be laid by the said executives before the legislatures of the states at their next session; and the legislature of the u. s. shall not have the power of fixing or establishing the particular ports for collecting duties or imposts in any state, except the legislature of such state shall neglect to fix and establish the same during their first session to be held after such notification by the legislature of the u. s. to the executive of such state." "all duties imposts & excises, prohibitions or restraints laid or made by the legislature of the u. s. shall be uniform & equal throughout the u. s." these several propositions were referred nem: con: to a committee composed of a member from each state. the committee appointed by ballot were m^r langdon, m^r ghorum, m^r sherman, m^r dayton, m^r fitzimmons, m^r read, m^r carrol, m^r mason, m^r williamson, m^r butler, m^r few. on the question now taken on m^r dickinson's motion of yesterday, allowing appointments to offices, to be referred by the gen^l legislature to the executives of the several states as a further amendment to sect. 2. art. x, the votes were n. h. no. mas. no. c^t ay. p^a no. del. no. m^d divided. v^a ay. n. c. no. s. c. no. geo. ay. in amendment of the same section, "other public ministers" were inserted after "ambassadors." m^r gov^r morris moved to strike out of the section--"and may correspond with the supreme executives of the several states" as unnecessary and implying that he could not correspond with others. m^r broome 2^{ded} him. on the question n. h. ay. mas. ay. c^t ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. "shall receive ambassadors & other public ministers," agreed to, nem. con. m^r sherman moved to amend the "power to grant reprieves & pardon" so as to read "to grant reprieves until the ensuing session of the senate, and pardons with consent of the senate." on the question n. h. no. mas. no. c^t ay. p^a no. m^d no. v^a no. n. c. no. s. c. no. geo. no. "except in cases of impeachment" inserted nem. con: after "pardon." on the question to agree to--"but his pardon shall not be pleadable in bar" n. h. ay. mas. no. c^t no. p^a no. del. no. m^d ay. v^a no. n. c. ay. s. c. ay. geo. no. adjourned. monday aug^{st} 27^{th}. 1787. in convention art x. sect 2. being resumed, m^r l. martin moved to insert the words "after conviction" after the words "reprieves and pardons." m^r wilson objected that pardon before conviction might be necessary in order to obtain the testimony of accomplices. he stated the case of forgeries in which this might particularly happen.--m^r l. martin withdrew his motion. m^r sherman moved to amend the clause giving the executive the command of the militia, so as to read "and of the militia of the several states, _when called into the actual service of the u. s._" and on the question n. h. ay. mas. abs^t. c^t ay. n. j. abs^t. p^a ay. del. no. m^d ay. v^a ay. n. c. abs^t. s. c. no. geo. ay. the clause for removing the president on impeachment by the house of rep^s and conviction in the supreme court, of treason, bribery or corruption, was postponed nem: con: at the instance of m^r gov^r morris, who thought the tribunal an improper one, particularly, if the first judge was to be of the privy council. m^r gov^r morris objected also to the president of the senate being provisional successor to the president, and suggested a designation of the chief justice. m^r madison added as a ground of objection that the senate might retard the appointment of a president in order to carry points whilst the revisionary power was in the president of their own body, but suggested that the executive powers during a vacancy, be administered by the persons composing the council to the president. m^r williamson suggested that the legislature ought to have power to provide for occasional successors, & moved that the last clause (of 2 sect. x art:) relating to a provisional successor to the president, be postponed. m^r dickinson 2^{ded} the postponement, remarking that it was too vague. what is the extent of the term "disability" and who is to be the judge of it? the postponement was agreed to nem: con: col: mason & m^r madison moved to add to the oath to be taken by the supreme executive "and will to the best of my judgment and power preserve protect and defend the constitution of the u. s." m^r wilson thought the general provision for oaths of office, in a subsequent place, rendered the amendment unnecessary.-on the question n. h. ay. mas. abs^t. c^t ay. p^a ay. del. no. m^d ay. v^a ay. n. c. abs^t. s. c. ay. geo. ay. art: xi. being taken up. doc^r johnson suggested that the judicial power ought to extend to equity as well as law--and moved to insert the words, "both in law and equity" after the words "u. s." in the 1^{st} line of sect 1. m^r read objected to vesting these powers in the same court. on the question n. h. ay. mas. absent. c^t ay. n. j. abs^t. p. ay. del. no. m^d no. virg^a ay. n. c. abs^t. s. c. ay. geo. ay. on the question to agree to sect. 1. art. xi. as amended n. h. ay. mas. abs^t. c^t ay. p^a ay. n. j. abs^t. del. no. m^d no. v^a ay. n. c. abs^t. s. c. ay. geo. ay. m^r dickinson moved as an amendment to sect. 2. art xi after the words "good behavior" the words "provided that they may be removed by the executive on the application by the senate and house of representatives." m^r gerry 2^{ded} the motion. m^r gov^r morris thought it a contradiction in terms to say that the judges should hold their offices during good behavior, and yet be removeable without a trial. besides it was fundamentally wrong to subject judges to so arbitrary an authority. m^r sherman saw no contradiction or impropriety if this were made a part of the constitutional regulation of the judiciary establishment. he observed that a like provision was contained in the british statutes. m^r rutlidge. if the supreme court is to judge between the u. s. and particular states, this alone is an insuperable objection to the motion. m^r wilson considered such a provision in the british government as less dangerous than here, the house of lords & house of commons being less likely to concur on the same occasions. chief justice holt, he remarked, had _successively_ offended by his independent conduct, both houses of parliament. had this happened at the same time, he would have been ousted. the judges would be in a bad situation if made to depend on any gust of faction which might prevail in the two branches of our gov^t. m^r randolph opposed the motion as weakening too much the independence of the judges. m^r dickinson was not apprehensive that the legislature composed of different branches constructed on such different principles, would improperly unite for the purpose of displacing a judge. on the question for agreeing to m^r dickinson's motion n. h. no. mas. abs^t. c^t ay. n. j. abs^t. p^a no. del. no. m^d no. v^a no. n. c. abs^t. s. c. no. geo. no. m^r madison and m^r m^chenry moved to reinstate the words "increased or" before the word "diminished" in 2^d sect, art. xi. m^r gov^r morris opposed it for reasons urged by him on a former occasion-col: mason contended strenuously for the motion. there was no weight he said in the argument drawn from changes in the value of the metals, because this might be provided for by an increase of salaries so made as not to affect persons in office, and this was the only argument on which much stress seemed to have been laid. gen^l pinkney. the importance of the judiciary will require men of the first talents: large salaries will therefore be necessary, larger than the u. s. can allow in the first instance. he was not satisfied with the expedient mentioned by col: mason. he did not think it would have a good effect or a good appearance, for new judges to come in with higher salaries than the old ones. m^r gov^r morris said the expedient might be evaded & therefore amounted to nothing. judges might resign, & then be re-appointed to increased salaries. on the question n. h. no. c^t no. p^a no. del. no. m^d div^d. v^a ay. s. c. no. geo. abs^t also mas^{ts}. & n. j. & n. c. m^r randolph & m^r madison then moved to add the following words to art. xi sect. 2. "nor increased by any act of the legislature which shall operate before the expiration of three years after the passing thereof." on the question n. h. no. c^t no. p^a no. del. no. m^d ay. v^a ay. s. c. no. geo. abs^t also mas. n. j. & n. c. sect. 3. art. xi. being taken up, the following clause was postponed viz, "to the trial of impeachments of officers of the u. s." by which the jurisdiction of the supreme court was extended to such cases. m^r madison & m^r gov^r morris moved to insert after the word "controversies" the words "to which the u. s. shall be a party," which was agreed to nem: con: doc^r johnson moved to insert the words "this constitution and the" before the word "laws." m^r madison doubted whether it was not going too far to extend the jurisdiction of the court generally to cases arising under the constitution & whether it ought not to be limited to cases of a judiciary nature. the right of expounding the constitution in cases not of this nature ought not to be given to that department. the motion of doc^r johnson was agreed to nem: con: it being generally supposed that the jurisdiction given was constructively limited to cases of a judiciary nature. on motion of m^r rutlidge the words "passed by the legislature" were struck out, and after the words "u. s." were inserted nem. con: the words "and treaties made or which shall be made under their authority" conformably to a preceding amendment in another place. the clause "in cases of impeachment," was postponed. m^r gov^r morris wished to know what was meant by the words "in all the cases before-mentioned it (jurisdiction) shall be appellate with such exceptions &c.," whether it extended to matters of fact as well as law--and to cases of common law as well as civil law. m^r wilson. the committee he believed meant facts as well as law & common as well as civil law. the jurisdiction of the federal court of appeals had he said been so construed. m^r dickinson moved to add after the word "appellate" the words "both as to law & fact" which was agreed to nem: con: m^r madison & m^r gov^r morris moved to strike out the beginning of the 3^d sect. "the jurisdiction of the supreme court" & to insert the words "the judicial power" which was agreed to nem: con: the following motion was disagreed to, to wit to insert "in all the other cases beforementioned the judicial power shall be exercised in such manner as the legislature shall direct" del. virg^a ay. n. h. con. p. m. s. c. g. no. on a question for striking out the last sentence of the sect. 3. "the legislature may assign &c." n. h. ay. c^t ay. p^a ay. del. ay. m^d ay. v^a ay. s. c. ay. geo. ay. m^r sherman moved to insert after the words "between citizens of different states" the words, "between citizens of the same state claiming lands under grants of different states"--according to the provision in the 9th art: of the confederation--which was agreed to nem: con: adjourned. tuesday august 28 1787. in convention m^r sherman from the committee to whom were referred several propositions on the 25^{th} instant, made the following report:-that there be inserted after the 4 clause of 7^{th}. section "nor shall any regulation of commerce or revenue give preference to the ports of one state over those of another, or oblige vessels bound to or from any state to enter clear or pay duties in another and all tonnage, duties, imposts & excises laid by the legislature shall be uniform throughout the u. s." art xi sect. 3, it was moved to strike out the words "it shall be appellate" to insert the words "the supreme court shall have appellate jurisdiction,"--in order to prevent uncertainty whether "it" referred to the _supreme court_, or to the _judicial power_. on the question n. h. ay. mas. ay. c^t ay. n. j. abs^t. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. sect. 4. was so amended nem. con: as to read "the trial of all crimes (except in cases of impeachment) shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, then the trial shall be at such place or places as the legislature may direct." the object of this amendment was to provide for trial by jury of offences committed out of any state. m^r pinkney urged the propriety of securing the benefit of the habeas corpus in the most ample manner, moved "that it should not be suspended but on the most urgent occasions, & then only for a limited time not exceeding twelve months." m^r rutlidge was for declaring the habeas corpus inviolable. he did not conceive that a suspension could ever be necessary at the same time through all the states. m^r gov^r morris moved that "the privilege of the writ of habeas corpus shall not be suspended; unless where in cases of rebellion or invasion the public safety may require it." m^r wilson doubted whether in any case a suspension could be necessary, as the discretion now exists with judges, in most important cases to keep in gaol or admit to bail. the first part of m^r gov^r morris' motion, to the word "unless" was agreed to nem: con:--on the remaining part; n. h. ay. mas. ay. c^t ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. sec. 5. of art: xi. was agreed to _nem_: con.[43] [43] the vote on this section as stated in the printed journal is not unanimous: the statement here is probably the right one.--madison's note. art: xii being taken up. m^r wilson & m^r sherman moved to insert after the words "coin money" the words "nor emit bills of credit, nor make any thing but gold & silver coin a tender in payment of debts" making these prohibitions absolute, instead of making the measures allowable (as in the xiii art:) _with the consent of the legislature of the u. s._ m^r ghorum thought the purpose would be as well secured by the provisions of art: xiii which makes the consent of the gen^l legislature necessary, and that in that mode no opposition would be excited; whereas an absolute prohibition of paper money would rouse the most desperate opposition from its partizans. m^r sherman thought this a favorable crisis for crushing paper money. if the consent of the legislature could authorize emissions of it, the friends of paper money would make every exertion to get into the legislature in order to license it. the question being divided; on the 1^{st} part--"nor emit bills of credit" n. h. ay. mas. ay. c^t ay. p^a ay. del. ay. m^d div^d. v^a no. n. c. ay. s. c. ay. geo. ay. the remaining part of m^r wilson's & sherman's motion was agreed to nem: con: m^r king moved to add, in the words used in the ordinance of cong^r establishing new states, a prohibition on the states to interfere in private contracts. m^r gov^r morris. this would be going too far. there are a thousand laws, relating to bringing actions--limitations, of actions & which affect contracts. the judicial power of the u. s. will be a protection in cases within their jurisdiction; and within the state itself a majority must rule, whatever may be the mischief done among themselves. m^r sherman. why then prohibit bills of credit? m^r wilson was in favor of m^r king's motion. m^r madison admitted that inconveniences might arise from such a prohibition but thought on the whole it would be overbalanced by the utility of it. he conceived however that a negative on the state laws could alone secure the effect. evasions might and would be devised by the ingenuity of the legislatures. col: mason. this is carrying the restraint too far. cases will happen that cannot be foreseen, where some kind of interference will be proper & essential. he mentioned the case of limiting the period for bringing actions on open account--that of bonds after a certain lapse of time--asking whether it was proper to tie the hands of the states from making provision in such cases? m^r wilson. the answer to these objections is that retrospective interferences only are to be prohibited. m^r madison. is not that already done by the prohibition of ex post facto laws, which will oblige the judges to declare such interferences null & void. m^r rutlidge moved instead of m^r king's motion to insert--"nor pass bills of attainder nor retrospective[44] laws" on which motion n. h. ay. c^t no. n. j. ay. p^a ay. del. ay. m^d no. virg^a no. n. c. ay. s. c. ay. geo. ay. [44] in the printed journal--ex post facto.--madison's note. m^r madison moved to insert after the word "reprisal" (art. xii) the words "nor lay embargoes." he urged that such acts by the states would be unnecessary--impolitic--and unjust. m^r sherman thought the states ought to retain this power in order to prevent suffering & injury to their poor. col: mason thought the amendment would be not only improper but dangerous, as the gen^l legislature would not sit constantly and therefore could not interpose at the necessary moments. he enforced his objection by appealing to the necessity of sudden embargoes during the war, to prevent exports, particularly in the case of a blockade. m^r gov^r morris considered the provision as unnecessary; the power of regulating trade between state & state already vested in the gen^l legislature, being sufficient. on the question n. h. no. mas. ay. c^t no. n. j. no. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. ay. geo. no. m^r madison moved that the words "nor lay imposts or duties on imports" be transferred from art: xiii where the consent of the gen^l legislature may license the act--into art: xii which will make the prohibition of the states absolute. he observed that as the states interested in this power by which they could tax the imports of their neighbors passing thro' their markets, were a majority, they could give the consent of the legislature, to the injury of n. jersey, n. carolina &c. m^r williamson 2^{ded} the motion. m^r sherman thought the power might safely be left to the legislature of the u. states. col: mason observed that particular states might wish to encourage by impost duties certain manufactures for which they enjoyed natural advantages, as virginia, the manufacture of hemp &c. m^r madison. the encouragement of manufactures in that mode requires duties not only on imports directly from foreign countries, but from the other states in the union, which would revive all the mischiefs experienced from the want of a gen^l government over commerce.[45] [45] august 28, 1787, new york, hamilton wrote to king: "i wrote to you some days since [august 20] to request you to inform me when there was a prospect of your finishing, as i intended to be with you, for certain reasons, before the conclusion. "it is whispered here that some late changes in your scheme have taken place which give it a higher tone. is this the case?"--king's _life and correspondence of rufus king_, _i_, 258. on the question n. h. ay. mas. no. c^t no. n. j. ay. p^a no. del^a ay. m^d no. v^a no. n. c. ay. s. c. no. geo. no. art: xii as amended agreed to nem: con: art: xiii being taken up. m^r king moved to insert after the word "imports" the words "or exports," so as to prohibit the states from taxing either, & on this question it passed in the affirmative. n. h. ay. mas. ay. c^t no. n. j. ay. p. ay. del. ay. m^d no. v^a no. n. c. ay. s. c. no. geo. no. m^r sherman moved to add after the word "exports"--the words "nor with such consent but for the use of the u. s."--so as to carry the proceeds of all state duties on imports & exports, into the common treasury. m^r madison liked the motion as preventing all state imposts--but lamented the complexity we were giving to the commercial system. m^r gov^r morris thought the regulation necessary to prevent the atlantic states from endeavoring to tax the western states--& promote their interest by opposing the navigation of the mississippi which would drive the western people into the arms of g. britain. m^r clymer thought the encouragement of the western country was suicide on the old states. if the states have such different interests that they cannot be left to regulate their own manufactures without encountering the interests of other states, it is a proof that they are not fit to compose one nation. m^r king was afraid that the regulation moved by m^r sherman would too much interfere with the policy of states respecting their manufactures, which may be necessary. revenue he reminded the house was the object of the general legislature. on m^r sherman's motion n. h. ay. mas. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. art xiii was then agreed to as amended. art. xiv was taken up. gen^l pinkney was not satisfied with it. he seemed to wish some provision should be included in favor of property in slaves. on the question on art: xiv. n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. divided. art: xv. being taken up, the words "high misdemesnor," were struck out, and "other crime" inserted, in order to comprehend all proper cases; it being doubtful whether "high misdemeanor" had not a technical meaning too limited. m^r butler and m^r pinkney moved "to require fugitive slaves and servants to be delivered up like criminals." m^r wilson. this would oblige the executive of the state to do it at the public expence. m^r sherman saw no more propriety in the public seizing and surrendering a slave or servant, than a horse. m^r butler withdrew his proposition in order that some particular provision might be made apart from this article. art xv as amended was then agreed to nem: con: adjourned. wednesday august 29^{th}. 1787. in convention art: xvi. taken up. m^r williamson moved to substitute in place of it, the words of the articles of confederation on the same subject. he did not understand precisely the meaning of the article. m^r wilson and doc^r johnson supposed the meaning to be that judgments in one state should be the ground of actions in other states, & that acts of the legislatures should be included, for the sake of acts of insolvency &c. m^r pinkney moved to commit art xvi with the following proposition "to establish uniform laws upon the subject of bankruptcies, and respecting the damages arising on the protest of foreign bills of exchange." m^r ghorum was for agreeing to the article, and committing the proposition. m^r madison was for committing both. he wished the legislature might be authorized to provide for the _execution_ of judgments in other states, under such regulations as might be expedient. he thought that this might be safely done, and was justified by the nature of the union. m^r randolph said there was no instance of one nation executing judgments of the courts of another nation. he moved the following proposition: executive or judiciary shall be attested & exemplified under the seal thereof, such attestation and exemplification, shall be deemed in other states as full proof of the existence of that act--and its operation shall be binding in every other state, in all cases to which it may relate, and which are within the cognizance and jurisdiction of the state, wherein the said act was done." on the question for committing art: xvi with m^r pinkney's motion n. h. no. mas. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. p^a ay. n. c. ay. s. c. ay. geo. ay. the motion of m^r randolph was also committed nem: con: m^r gov^r morris moved to commit also the following proposition on the same subject. "full faith ought to be given in each state to the public acts, records, and judicial proceedings of every other state; and the legislature shall by general laws, determine the proof and effect of such acts, records, and proceedings" and it was committed nem. contrad: the committee appointed for these references, were m^r rutlidge, m^r randolph, m^r gorham, m^r wilson, & m^r johnson. m^r dickenson mentioned to the house that on examining blackstone's commentaries, he found that the term "ex post facto" related to criminal cases only; that they would not consequently restrain the states from retrospective laws in civil cases, and that some further provision for this purpose would be requisite. art: vii sect. 6 by y^e co[~m]ittee of eleven reported to be struck out (see the 24 instant) being now taken up. m^r pinkney moved to postpone the report in favor of the following proposition--"that no act of the legislature for the purpose of regulating the commerce of the u. s. with foreign powers among the several states, shall be passed without the assent of two thirds of the members of each house." he remarked that there were five distinct commercial interests. 1. the fisheries & w. india trade, which belonged to the n. england states. 2. the interest of n. york lay in a free trade. 3. wheat & flour the staples of the two middle states (n. j. & penn^a). 4. tob^o the staple of maryl^d & virginia & partly of n. carolina. 5. rice & indigo, the staples of s. carolina & georgia. these different interests would be a source of oppressive regulations if no check to a bare majority should be provided. states pursue their interests with less scruple than individuals. the power of regulating commerce was a pure concession on the part of the s. states. they did not need the protection of the n. states at present. m^r martin 2^{ded} the motion. gen^l pinkney said it was the true interest of the s. states to have no regulation of commerce; but considering the loss brought on the commerce of the eastern states by the revolution, their liberal conduct towards the views[46] of south carolina, and the interest the weak south^n states had in being united with the strong eastern states, he thought it proper that no fetters should be imposed on the power of making commercial regulations, and that his constituents though prejudiced against the eastern states, would be reconciled to this liberality. he had himself, he said, prejudices ag^{st} the eastern states before he came here, but would acknowledge that he had found them as liberal and candid as any men whatever. [46] he meant the permission to import slaves. an understanding on the two subjects of _navigation_ and _slavery_, had taken place between those parts of the union, which explains the vote on the motion depending, as well as the language of gen^l pinkney & others.--madison's note. m^r clymer. the diversity of commercial interests of necessity creates difficulties, which ought not to be increased by unnecessary restrictions. the northern & middle states will be ruined, if not enabled to defend themselves against foreign regulations. m^r sherman, alluding to m^r pinkney's enumeration of particular interests, as requiring a security ag^{st} abuse of the power; observed that the diversity was of itself a security, adding that to require more than a majority to decide a question was always embarrassing as had been experienced in cases requiring the votes of nine states in congress. m^r pinkney replied that his enumeration meant the five minute interests. it still left the two great divisions of northern & southern interests. m^r gov^r morris, opposed the object of the motion as highly injurious. preferences to american ships will multiply them, till they can carry the southern produce cheaper than it is now carried.--a navy was essential to security, particularly of the s. states, and can only be had by a navigation act encouraging american bottoms & seamen. in those points of view then alone, it is the interest of the s. states that navigation acts should be facilitated. shipping he said was the worst & most precarious kind of property, and stood in need of public patronage. m^r williamson was in favor of making two thirds instead of a majority requisite, as more satisfactory to the southern people. no useful measure he believed had been lost in congress for want of nine votes. as to the weakness of the southern states, he was not alarmed on that account. the sickliness of their climate for invaders would prevent their being made an object. he acknowledged that he did not think the motion requiring 2/3 necessary in itself, because if a majority of the northern states should push their regulations too far the s. states would build ships for themselves: but he knew the southern people were apprehensive on this subject and would be pleased with the precaution. m^r spaight was against the motion. the southern states could at any time save themselves from oppression, by building ships for their own use. m^r butler differed from those who considered the rejection of the motion as no concession on the part of the s. states. he considered the interest of these and of the eastern states, to be as different as the interests of russia and turkey. being notwithstanding desirous of conciliating the affections of the east: states, he should vote ag^{st} requiring 2/3 instead of a majority. col: mason. if the gov^t is to be lasting, it must be founded in the confidence & affections of the people, and must be so constructed as to obtain these. the _majority_ will be governed by their interests. the southern states are the _minority_ in both houses. is it to be expected that they will deliver themselves bound hand & foot to the eastern states, and enable them to exclaim, in the words of cromwell on a certain occasion--"the lord hath delivered them into our hands." m^r wilson took notice of the several objections and remarked that if every peculiar interest was to be secured, _unanimity_ ought to be required. the majority he said would be no more governed by interest than the minority. it was surely better to let the latter be bound hand and foot than the former. great inconveniences had, he contended, been experienced in congress from the article of confederation requiring nine votes in certain cases. m^r madison went into a pretty full view of the subject. he observed that the disadvantage to the s. states from a navigation act, lay chiefly in a temporary rise of freight, attended however with an increase of south^n as well as northern shipping--with the emigration of northern seamen & merchants to the southern states--& with a removal of the existing & injurious retaliations among the states on each other. the power of foreign nations to obstruct our retaliating measures on them by a corrupt influence would also be less if a majority sh^d be made competent than if 2/3 of each house sh^d be required to legislative acts in this case. an abuse of the power would be qualified with all these good effects. but he thought an abuse was rendered improbable by the provision of 2 branches--by the independence of the senate, by the negative of the executive, by the interest of connecticut & n. jersey which were agricultural, not commercial states; by the interior interest which was also agricultural in the most commercial states, by the accession of western states which w^d be altogether agricultural. he added that the southern states would derive an essential advantage in the general security afforded by the increase of our maritime strength. he stated the vulnerable situation of them all, and of virginia in particular. the increase of the coasting trade, and of seamen, would also be favorable to the s. states, by increasing, the consumption of their produce. if the wealth of the eastern should in a still greater proportion be augmented, that wealth w^d contribute the more to the public wants, and be otherwise a national benefit. m^r rutlidge was ag^{st} the motion of his colleague. it did not follow from a grant of the power to regulate trade, that it would be abused. at the worst a navigation act could bear hard a little while only on the s. states. as we are laying the foundation for a great empire, we ought to take a permanent view of the subject and not look at the present moment only. he reminded the house of the necessity of securing the west india trade to this country. that was the great object, and a navigation act was necessary for obtaining it. m^r randolph said that there were features so odious in the constitution as it now stands, that he doubted whether he should be able to agree to it. a rejection of the motion would compleat the deformity of the system. he took notice of the argument in favor of giving the power over trade to a majority, drawn from the opportunity foreign powers would have of obstructing retaliatory measures if two thirds were made requisite. he did not think there was weight in that consideration. the difference between a majority & two thirds did not afford room for such an opportunity. foreign influence would also be more likely to be exerted on the president who could require three fourths by his negative. he did not mean however to enter into the merits. what he had in view was merely to pave the way for a declaration which he might be hereafter obliged to make if an accumulation of obnoxious ingredients should take place, that he could not give his assent to the plan. m^r gorham. if the government is to be so fettered as to be unable to relieve the eastern states what motive can they have to join in it, and thereby tie their own hands from measures which they could otherwise take for themselves. the eastern states were not led to strengthen the union by fear for their own safety. he deprecated the consequences of disunion, but if it should take place it was the southern part of the continent that had most reason to dread them. he urged the improbability of a combination against the interest of the southern states, the different situations of the northern & middle states being a security against it. it was moreover certain that foreign ships would never be altogether excluded especially those of nations in treaty with us. on the question to postpone in order to take up m^r pinkney's motion n. h. no. mass. no. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. the report of the committee for striking out sect. 6. requiring two thirds of each house to pass a navigation act was then agreed to, nem: con: m^r butler moved to insert after art: xv. "if any person bound to service or labor in any of the u. states shall escape into another state, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the state to which they escape, but shall be delivered up to the person justly claiming their service or labor," which was agreed to nem: con: art: xvii being taken up, m^r gov^r morris moved to strike out the two last sentences, to wit "if the admission be consented to, the new states shall be admitted on the same terms with the original states. but the legislature may make conditions with the new states, concerning the public debt which shall be then subsisting."--he did not wish to bind down the legislature to admit western states on the terms here stated. m^r madison opposed the motion, insisting that the western states neither would nor ought to submit to a union which degraded them from an equal rank with the other states. col: mason. if it were possible by just means to prevent emigrations to the western country, it might be good policy. but go the people will as they find it for their interest, and the best policy is to treat them with that equality which will make them friends not enemies. m^r gov^r morris did not mean to discourage the growth of the western country. he knew that to be impossible. he did not wish however to throw the power into their hands. m^r sherman, was ag^{st} the motion & for fixing an equality of privileges by the constitution. m^r langdon was in favor of the motion, he did not know but circumstances might arise which would render it inconvenient to admit new states on terms of equality. m^r williamson was for leaving the legislature free. the existing _small_ states enjoy an equality now, and for _that_ reason are admitted to it in the senate. this reason is not applicable to new western states. on m^r gov^r morris's motion for striking out. n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. m^r l. martin & m^r gov^r morris moved to strike out of art xvii, "but to such admission the consent of two thirds of the members present shall be necessary." before any question was taken on this motion, m^r gov^r morris moved the following proposition as a substitute for the xvii art: "new states may be admitted by the legislature into this union; but no new state shall be erected within the limits of any of the present states, without the consent of the legislature of such state, as well as of the gen^l legislature." the first part to union inclusive was agreed to nem: con: m^r l. martin opposed the latter part. nothing he said would so alarm the limited states as to make the consent of the large states claiming the western lands, necessary to the establishment of new states within their limits. it is proposed to guarantee the states. shall vermont be reduced by force in favor of the states claiming it? frankland & the western county of virginia were in a like situation. on m^r gov^r morris's motion to substitute &c. it was agreed to. n. h. no. mass. ay. c^t no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. art: xvii--before the house, as amended. m^r sherman was against it. he thought it unnecessary. the union cannot dismember a state without its consent. m^r langdon thought there was great weight in the argument of m^r luther martin, and that the proposition substituted by m^r gov^r morris would excite a dangerous opposition to the plan. m^r gov^r morris thought on the contrary that the small states would be pleased with the regulation, as it holds up the idea of dismembering the large states. m^r butler. if new states were to be erected without the consent of the dismembered states, nothing but confusion would ensue. whenever taxes should press on the people, demagogues would set up their schemes of new states. doc^r johnson agreed in general with the ideas of m^r sherman, but was afraid that as the clause stood, vermont would be subjected to n. york, contrary to the faith pledged by congress. he was of opinion that vermont ought to be compelled to come into the union. m^r langdon said his objections were connected with the case of vermont. if they are not taken in, & remain exempt from taxes, it would prove of great injury to n. hampshire and the other neighbouring states. m^r dickinson hoped the article would not be agreed to. he dwelt on the impropriety of requiring the small states to secure the large ones in their extensive claims of territory. m^r wilson. when the _majority_ of a state wish to divide they can do so. the aim of those in opposition to the article, he perceived was that the gen^l government should abet the _minority_, & by that means divide a state against its own consent. m^r gov^r morris. if the forced division of the states is the object of the new system, and is to be pointed ag^{st} one or two states, he expected the gentlemen from these would pretty quickly leave us. adjourned. thursday august 30th 1787. in convention art xvii resumed for a question on it as amended by m^r gov^r morris's substitutes. m^r carrol moved to strike out so much of the article as requires the consent of the state to its being divided. he was aware that the object of this prerequisite might be to prevent domestic disturbances; but such was our situation with regard to the crown lands, and the sentiments of maryland on that subject, that he perceived we should again be at sea, if no guard was provided for the right of the u. states to the back lands. he suggested that it might be proper to provide that nothing in the constitution should affect the right of the u. s. to lands ceded by g. britain in the treaty of peace, and proposed a committment to a member from each state. he assured the house that this was a point of a most serious nature. it was desirable above all things that the act of the convention might be agreed to unanimously. but should this point be disregarded, he believed that all risks would be run by a considerable minority, sooner than give their concurrence. m^r l. martin 2^{ded} the motion for a commitment. m^r rutlidge. is it to be supposed that the states are to be cut up without their own consent. the case of vermont will probably be particularly provided for. there could be no room to fear, that virginia or n. carolina would call on the u. states to maintain their government over the mountains. m^r williamson said that n. carolina was well disposed to give up her western lands, but attempts at compulsion was not the policy of the u. s. he was for doing nothing in the constitution in the present case, and for leaving the whole matter in statu quo. m^r wilson was against the commitment. unanimity was of great importance, but not to be purchased by the majority's yielding to the minority. he should have no objection to leaving the case of the new states as heretofore. he knew nothing that would give greater or juster alarm than the doctrine, that a political society is to be torn assunder without its own consent. on m^r carrol's motion for commitment n. h. no. mas. no. c^t no. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r sherman moved to postpone the substitute for art: xvii agreed to yesterday in order to take up the following amendment the legislature shall have power to admit other states into the union, and new states to be formed by the division or junction of states now in the union, with the consent of the legislature of such states." (the first part was meant for the case of vermont to secure its admission.) on the question, it passed in the negative. n. h. ay. mas. ay. c^t ay. n. j. no. p^a ay. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. no. doc^r johnson moved to insert the words "hereafter formed or" after the words "shall be" in the substitute for art: xvii (the more clearly to save vermont as being already formed into a state, from a dependence on the consent of n. york for her admission.) the motion was agreed to del. & m^d only dissenting. m^r gov^r morris moved to strike out the word "limits" in the substitute, and insert the word "jurisdiction". (this also was meant to guard the case of vermont, the jurisdiction of n. york not extending over vermont which was in the exercise of sovereignty, tho' vermont was within the asserted limits of new york.) on this question n. h. ay. mas. ay. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. m^r l. martin urged the unreasonableness of forcing & guaranteeing the people of virginia beyond the mountains, the western people of n. carolina & of georgia, & the people of maine, to continue under the states now governing them, without the consent of those states to their separation. even if they should become the _majority_, the majority of _counties_, as in virginia may still hold fast the dominion over them. again the majority may place the seat of government entirely among themselves & for their own conveniency, and still keep the injured parts of the states in subjection, under the guarantee of the gen^l government ag^{st} domestic violence. he wished m^r wilson had thought a little sooner of the value of _political_ bodies. in the beginning, when the rights of the small states were in question, they were phantoms, ideal beings. now when the great states were to be affected, political societies were of a sacred nature. he repeated and enlarged on the unreasonableness of requiring the small states to guarantee the western claims of the large ones.--it was said yesterday by m^r gov^r morris, that if the large states were to be split to pieces without their consent, their representatives here would take their leave. if the small states are to be required to guarantee them in this manner, it will be found that the representatives of other states will with equal firmness take their leave of the constitution on the table. it was moved by m^r l. martin to postpone the substituted article, in order to take up the following. "the legislature of the u. s. shall have power to erect new states within as well as without the territory claimed by the several states or either of them, and admit the same into the union: provided that nothing in this constitution shall be construed to affect the claim of the u. s. to vacant lands ceded to them by the late treaty of peace, which passed in the negative: n. j. del. & m^d only ay. on the question to agree to m^r gov^r morris's substituted article as amended in the words following. "new states may be admitted by the legislature into the union: but no new state shall be hereafter formed or erected within the jurisdiction of any of the present states without the consent of the legislature of such state as well as of the general legislature" n. h. ay. mas. ay. c^t ay. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r dickinson moved to add the following clause to the last- "nor shall any state be formed by the junction of two or more states or parts thereof, without the consent of the legislature of such states, as well as of the legislature of the u. states," which was agreed to without a count of the votes. m^r carrol moved to add--"provided nevertheless that nothing in this constitution shall be construed to affect the claim of the u. s. to vacant lands ceded to them by the treaty of peace." this he said might be understood as relating to lands not claimed by any particular states, but he had in view also some of the claims of particular states. m^r wilson was ag^{st} the motion. there was nothing in the constitution affecting one way or the other the claims of the u. s. & it was best to insert nothing, leaving every thing on that litigated subject in statu quo. m^r madison considered the claim of the u. s. as in fact favored by the jurisdiction of the judicial power of the u. s. over controversies to which they should be parties. he thought it best on the whole to be silent on the subject. he did not view the proviso of mr. carrol as dangerous; but to make it neutral & fair, it ought to go further & declare that the claims of particular states also should not be affected. m^r sherman thought the proviso harmless, especially with the addition suggested by m^r madison in favor of the claims of particular states. m^r baldwin did not wish any undue advantage to be given to georgia. he thought the proviso proper with the addition proposed. it should be remembered that if georgia has gained much by the cession in the treaty of peace, she was in danger during the war of a uti possidetis. m^r rutlidge thought it wrong to insert a proviso where there was nothing which it could restrain, or on which it could operate. m^r carrol withdrew his motion and moved the following. "nothing in this constitution shall be construed to alter the claims of the u. s. or of the individual states to the western territory, but all such claims shall be examined into & decided upon, by the supreme court of the u. states." m^r gov^r morris moved to postpone this in order to take up the following. "the legislature shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the u. states; and nothing in this constitution contained, shall be so construed as to prejudice any claims either of the u. s. or of any particular state."--the postponem^t ag^d to nem. con. m^r l. martin moved to amend the proposition of m^r gov^r morris by adding--"but all such claims may be examined into & decided upon by the supreme court of the u. states." m^r gov^r morris. this is unnecessary, as all suits to which the u. s. are parties, are already to be decided by the supreme court. m^r l. martin. it is proper in order to remove all doubts on this point. question on m^r l. martin's amendatory motion n. h. no. mas. no. c^t no. n. j. ay. p^a no. del. no. m^d ay. v^a no.--states not farther called the negatives being sufficient & the point given up. the motion of m^r gov^r morris was then agreed to, m^d alone dissenting. art: xviii being taken up,--the word "foreign" was struck out nem: con: as superfluous, being implied in the term "invasion." m^r dickinson moved to strike out "on the application of its legislature, against." he thought it of essential importance to the tranquility of the u. s. that they should in all cases suppress domestic violence, which may proceed from the state legislature itself, or from disputes between the two branches where such exist. m^r dayton mentioned the conduct of rho: island as shewing the necessity of giving latitude to the power of the u. s. on this subject. on the question n. h. no. mas. no. c^t no. n. j. ay. p^a ay. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. on a question for striking out "domestic violence" and insert^g "insurrections--" it passed in the negative. n. h. no. mas. no. c^t no. n. j. ay. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r dickinson moved to insert the words, "or executive" after the words "application of its legislature."--the occasion itself he remarked might hinder the legislature from meeting. on this question n. h. ay. mas. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d div^d. v^a no. n. c. ay. s. c. ay. geo. ay. m^r l. martin moved to subjoin to the last amendment the words "in the recess of the legislature." on which question n. h. no. mas. no. c^t no. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. no. on question on the last clause as amended n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. art: xix taken up. m^r gov^r morris suggested that the legislature should be left at liberty to call a convention, whenever they please. the art: was agreed to nem: con: art: xx. taken up.--"or affirmation" was added after "oath." m^r pinkney moved to add to the art:--"but no religious test shall ever be required as a qualification to any office or public trust under the authority of the u. states." m^r sherman thought it unnecessary, the prevailing liberality being a sufficient security ag^{st} such tests. m^r gov^r morris & gen^l pinkney approved the motion. the motion was agreed to nem: con: and then the whole article; n. c. only no--and m^d divided. art: xxi. taken up, viz: "the ratifications of the conventions of ---states shall be sufficient for organizing this constitution." m^r wilson proposed to fill the blank with "seven" that being a majority of the whole number & sufficient for the commencement of the plan. m^r carrol moved to postpone the article in order to take up the report of the committee of eleven (see tuesday aug^{st} 28)--and on the question n. h. no. mas. no. c^t no. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r gov^r morris thought the blank ought to be filled in a twofold way, so as to provide for the event of the ratifying states being contiguous which would render a smaller number sufficient, and the event of their being dispersed, which w^d require a greater number for the introduction of the government. m^r sherman observed that the states being now confederated by articles which require unanimity in changes, he thought the ratification in this case of ten states at least ought to be made necessary. m^r randolph was for filling the blank with "nine" that being a respectable majority of the whole, and being a number made familiar by the constitution of the existing congress. m^r wilson mentioned "eight" as preferable. m^r dickinson asked whether the concurrence of congress is to be essential to the establishment of the system, whether the refusing states in the confederacy could be deserted--and whether congress could concur in contravening the system under which they acted? m^r madison, remarked that if the blank should be filled with "seven" "eight," or "nine," the constitution as it stands might be put in force over the whole body of the people, tho' less than a majority of them should ratify it. m^r wilson. as the constitution stands, the states only which ratify can be bound. we must he said in this case go to the original powers of society. the house on fire must be extinguished, without a scrupulous regard to ordinary rights. m^r butler was in favor of "nine." he revolted at the idea, that one or two states should restrain the rest from consulting their safety. m^r carrol moved to fill the blank with "the thirteen," unanimity being necessary to dissolve the existing confederacy which had been unanimously established. m^r king thought this amend^t necessary, otherwise as the constitution now stands it will operate on the whole though ratified by a part only. adjourned. friday august 31^{st} 1787. in convention. m^r king moved to add to the end of art: xxi the words "between the said states" so as to confine the operation of the gov^t to the states ratifying it. on the question n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. m^d no. virg^a ay. n. c. ay. s. c. ay. geo. ay. m^r madison proposed to fill the blank in the article with "any seven or more states entitled to thirty three members at least in the house of representatives according to the allotment made in the 3 sect: of art: 4." this he said would require the concurrence of a majority of both the states and the people. m^r sherman doubted the propriety of authorizing less than all the states to execute the constitution, considering the nature of the existing confederation. perhaps all the states may concur, and on that supposition it is needless to hold out a breach of faith. m^r clymer and m^r carrol moved to postpone the consideration of art: xxi in order to take up the reports of committees not yet acted on. on this question, the states were equally divided. n. h. ay. mas. no. c^t div^d. n. j. no. p^a ay. del. ay. m^d ay. v^a no. n. c. no. s. c. no. g. ay. m^r gov^r morris moved to strike out "conventions of the" after "ratifications" leaving the states to pursue their own modes of ratification. m^r carrol mentioned the mode of altering the constitution of maryland pointed out therein, and that no other mode could be pursued in that state. m^r king thought that striking out "conventions," as the requisite mode was equivalent to giving up the business altogether. conventions alone, which will avoid all the obstacles from the complicated formation of the legislatures, will succeed, and if not positively required by the plan its enemies will oppose that mode. m^r gov^r morris said he meant to facilitate the adoption of the plan, by leaving the modes approved by the several state constitutions to be followed. m^r madison considered it best to require conventions; among other reasons, for this, that the powers given to the gen^l gov^t being taken from the state gov^{ts} the legislatures would be more disinclined than conventions composed in part at least of other men; and if disinclined, they could devise modes apparently promoting, but really thwarting the ratification. the difficulty in maryland was no greater than in other states, where no mode of change was pointed out by the constitution, and all officers were under oath to support it. the people were in fact, the fountain of all power, and by resorting to them, all difficulties were got over. they could alter constitutions as they pleased. it was a principle in the bills of rights, that first principles might be resorted to. m^r m^chenry said that the officers of gov^t in maryland were under oath to support the mode of alteration prescribed by the constitution. m^r ghorum urged the expediency of "conventions" also m^r pinkney, for reasons formerly urged on a discussion of this question. m^r l. martin insisted on a reference to the state legislatures. he urged the danger of commotions from a resort to the people & to first principles, in which the governments might be on one side and the people on the other. he was apprehensive of no such consequences however in maryland, whether the legislature or the people should be appealed to. both of them would be generally against the constitution. he repeated also the peculiarity in the maryland constitution. m^r king observed that the constitution of massachusetts was made unalterable till the year 1790, yet this was no difficulty with him. the state must have contemplated a recurrence to first principles before they sent deputies to this convention. m^r sherman moved to postpone art. xxi. & to take up art: xxii on which question, n. h. no. mas. no. c^t ay. n. j. no. p. ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. on m^r gov^r morris's motion to strike out "conventions of the," it was negatived. n. h. no. mas. no. c^t ay. n. j. no. p^a ay. del. no. m^d ay. v^a no. s. c. no. geo. ay. on filling the blank in art: xxi with "thirteen" moved by mr. carrol & martin, n. h. no. mas. no. c^t no, all except maryland. m^r sherman & m^r dayton moved to fill the blank with "ten." m^r wilson supported the motion of m^r madison, requiring a majority both of the people and of states. m^r clymer was also in favor of it. col: mason was for preserving ideas familiar to the people. nine states had been required in all great cases under the confederation & that number was on that account preferable. on the question for "ten" n. h. no. mas. no. c^t ay. n. j. ay. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. ay. on question for "nine" n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. ay. art: xxi. as amended was then agreed to by all the states, maryland excepted, & m^r jenifer being ay. art. xxii taken up, to wit, "this constitution shall be laid before the u. s. in cong^s assembled for their approbation; and it is the opinion of this convention that it should be afterwards submitted to a convention chosen, in each state under the recommendation of its legislature, in order to receive the ratification of such convention." m^r gov^r morris & m^r pinkney moved to strike out the words "for their approbation." on this question n. h. ay. mas. no. c^t ay. n. j. ay.[47] p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. no. [47] in the printed journal n. jersey--no.--madison's note. m^r gov^r morris & m^r pinkney then moved to amend the art: so as to read "this constitution shall be laid before the u. s. in congress assembled; and it is the opinion of this convention that it should afterwards be submitted to a convention chosen in each state, in order to receive the ratification of such convention; to which end the several legislatures ought to provide for the calling conventions within their respective states as speedily as circumstances will permit." m^r gov^r morris said his object was to impress in stronger terms the necessity of calling conventions in order to prevent enemies to the plan, from giving it the go by. when it first appears, with the sanction of this convention, the people will be favorable to it. by degrees the state officers, & those interested in the state gov^{ts} will intrigue & turn the popular current against it. m^r l. martin believed m^r morris to be right, that after a while the people would be ag^{st} it, but for a different reason from that alledged. he believed they would not ratify it unless hurried into it by surprize. m^r gerry enlarged on the idea of m^r l. martin in which he concurred, represented the system as full of vices, and dwelt on the impropriety of destroying the existing confederation, without the unanimous consent of the parties to it. question on m^r gov^r morris's & m^r pinkney's motion n. h. ay. mas. ay. c^t no. n. j. no. p^a ay. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r gerry moved to postpone art: xxii. col: mason 2^{ded} the motion, declaring that he would sooner chop off his right hand than put it to the constitution as it now stands. he wished to see some points not yet decided brought to a decision, before being compelled to give a final opinion on this article. should these points be improperly settled, his wish would then be to bring the whole subject before another general convention. m^r gov^r morris was ready for a postponement. he had long wished for another convention, that will have the firmness to provide a vigorous government, which we are afraid to do. m^r randolph stated his idea to be, in case the final form of the constitution should not permit him to accede to it, that the state conventions should be at liberty to propose amendments to be submitted to another general convention which may reject or incorporate them, as may be judged proper. on the question for postponing n. h. no. mas. no. c^t no. n. j. ay. p^a no. del. no. m^d ay. v^a no. n. c. ay. s. c. no. geo. no. on the question on art: xxii n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. art: xxiii being taken up, as far as the words "assigned by congress" inclusive, was agreed to nem: con: the blank having been first filled with the word "nine" as of course. on a motion for postponing the residue of the clause, concerning the choice of the president &c. n. h. no. mas. ay. c^t no. n. j. no. p^a no. del. ay. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. m^r gov^r morris then moved to strike out the words "choose the president of the u. s. and"--this point, of choosing the president not being yet finally determined, & on this question n. h. no. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d div^d. v^a ay. n. c. ay. s. c. ay.[48] geo. ay. [48] in printed journal--s. c.--no.--madison's note. art: xxiii as amended was then agreed to nem: con: the report of the grand committee of eleven made by m^r sherman was then taken up (see aug: 28). on the question to agree to the following clause, to be inserted after sect. 4. art: vii. "nor shall any regulation of commerce or revenue give preference to the ports of one state over those of another." agreed to nem: con: on the clause "or oblige vessels bound to or from any state to enter clear or pay duties in another" m^r madison thought the restriction w^d be inconvenient, as in the river delaware, if a vessel cannot be required to make entry below the jurisdiction of pennsylvania. m^r fitzimmons admitted that it might be inconvenient, but thought it would be a greater inconvenience to require vessels bound to philad^a to enter below the jurisdiction of the state. m^r ghorum & m^r langdon, contended that the gov^t would be so fettered by this clause, as to defeat the good purpose of the plan. they mentioned the situation of the trade of mas. & n. hampshire, the case of sandy hook which is in the state of n. jersey, but where precautions ag^{st} smuggling into n. york, ought to be established by the gen^l government. m^r m^chenry said the clause would not screen a vessel from being obliged to take an officer on board as a security for due entry &c. m^r carrol was anxious that the clause should be agreed to. he assured the house, that this was a tender point in maryland. m^r jennifer urged the necessity of the clause in the same point of view. on the question for agreeing to it n. h. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. the word "tonnage" was struck out, nem: con: as comprehended in "duties." on question on the clause of the report "and all duties, imposts & excises, laid by the legislature shall be uniform throughout the u. s." it was agreed to nem: con:[49] [49] in printed journal n. h. and s. c. entered as in the negative.--madison's note. on motion of m^r sherman it was agreed to refer such parts of the constitution as have been postponed, and such parts of reports as have not been acted on, to a committee of a member from each state; the committee appointed by ballot, being, m^r gilman, m^r king, m^r sherman, m^r brearly, m^r gov^r morris, m^r dickinson, m^r carrol, m^r madison, m^r williamson, m^r butler, & m^r baldwin. the house adjourned. saturday sep^r 1. 1787 in convention. m^r brearley from the comm^e of eleven to which were referred yesterday the postponed part of the constitution, & parts of reports not acted upon, made the following partial report. that in lieu of the 9^{th} sect: of art: 6. the words following be inserted viz "the members of each house shall be ineligible to any civil office under the authority of the u. s. during the time for which they shall respectively be elected, and no person holding an office under the u. s. shall be a member of either house during his continuance in office." m^r rutlidge from the committee to whom were referred sundry propositions (see aug: 29), together with art: xvi reported that the following additions be made to the report--viz. after the word "states" in the last line on the margin of the 3^d page (see the printed report),--add "to establish uniform laws on the subject of bankruptcies." and insert the following as art: xvi viz "full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings of every other state, and the legislature shall, by general laws prescribe the manner in which such acts, records, & proceedings shall be proved, and the effect which judgments obtained in one state, shall have in another." after receiving these reports the house adjourned to 10oc on monday next. monday sep^r 3 1787. in convention m^r gov^r morris moved to amend the report concerning the respect to be paid to acts records &c. of one state, in other states (see sep^r 1.) by striking out "judgments obtained in one state shall have in another" and to insert the word "thereof" after the word "effect." col: mason favored the motion, particularly if the "effect" was to be restrained to judgments & judicial proceedings. m^r wilson remarked, that if the legislature were not allowed to _declare the effect_ the provision would amount to nothing more than what now takes place among all independent nations. doc^r johnson thought the amendment as worded would authorize the gen^l legislature to declare the effect of legislative acts of one state in another state. m^r randolph considered it as strengthening the general objection ag^{st} the plan, that its definition of the powers of the government was so loose as to give it opportunities of usurping all the state powers. he was for not going farther than the report, which enables the legislature to provide for the effect of _judgments_. on the amendment, as moved by m^r gov^r morris mas. ay. c^t ay. n. j. ay. p^a ay. m^d no. v^a no. n. c. ay. s. c. ay. geo. no. on motion of m^r madison, "ought to" were struck out, and "shall" inserted; and "shall" between "legislature" & "by general laws" struck out, and "may" inserted, nem: con: on the question to agree to the report as amended viz "full faith & credit shall be given in each state to the public acts, records & judicial proceedings of every other state, and the legislature may by general laws prescribe the manner in which such acts records & proceedings shall be proved, and the effect thereof." agreed to with^t a count of sts. the clause in the report "to establish uniform laws on the subject of bankruptcies" being taken up. m^r sherman observed that bankruptcies were in some cases punishable with death by the laws of england, & he did not chuse to grant a power by which that might be done here. m^r gov^r morris said this was an extensive & delicate subject. he would agree to it because he saw no danger of abuse of the power by the legislature of the u. s. on the question to agree to the clause n. h. ay. mas. ay. c^t no. n. j. ay. p^a ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r pinkney moved to postpone the report of the committee of eleven (see sep^r 1.) in order to take up the following, "the members of each house shall be incapable of holding any office under the u. s. for which they or any other for their benefit, receive any salary, fees or emoluments of any kind, and the acceptance of such office shall vacate their seats respectively." he was strenuously opposed to an ineligibility of members to office, and therefore wished to restrain the proposition to a mere incompatibility. he considered the eligibility of members of the legislature to the honourable offices of government, as resembling the policy of the romans, in making the temple of virtue the road to the temple of fame. on this question n. h. no. mas. no. c^t no. n. j. no. p^a ay. m^d no. v^a no. n. c. ay. s. c. no. geo. no. m^r king moved to insert the word "created" before the word "during" in the report of the committee. this he said would exclude the members of the first legislature under the constitution, as most of the offices w^d then be created. m^r williamson 2^{ded} the motion. he did not see why members of the legislature should be ineligible to _vacancies_ happening during the term of their election. m^r sherman was for entirely incapacitating members of the legislature. he thought their eligibility to offices would give too much influence to the executive. he said the incapacity ought at least to be extended to cases where salaries should be _increased_, as well as _created_, during the term of the member. he mentioned also the expedient by which the restriction could be evaded to wit: an existing officer might be translated to an office created, and a member of the legislature be then put into the office vacated. m^r gov^r morris contended that the eligibility of members to office w^d lessen the influence of the executive. if they cannot be appointed themselves, the executive will appoint their relations & friends, retaining the service & votes of the members for his purposes in the legislature. whereas the appointment of the members deprives him of such an advantage. m^r gerry, thought the eligibility of members would have the effect of opening batteries ag^{st} good officers, in order to drive them out & make way for members of the legislature. m^r gorham was in favor of the amendment. without it we go further than has been done in any of the states, or indeed any other country. the experience of the state governments where there was no such ineligibility, proved that it was not necessary; on the contrary that the eligibility was among the inducements for fit men to enter into the legislative service. m^r randolph was inflexibly fixed against inviting men into the legislature by the prospect of being appointed to offices. m^r baldwin remarked that the example of the states was not applicable. the legislatures there are so numerous that an exclusion of their members would not leave proper men for offices. the case would be otherwise in the general government. col: mason. instead of excluding merit, the ineligibility will keep out corruption, by excluding office-hunters. m^r wilson considered the exclusion of members of the legislature as increasing the influence of the executive as observed by m^r gov^r morris at the same time that it would diminish, the general energy of the government. he said that the legal disqualification for office would be odious to those who did not wish for office, but did not wish either to be marked by so degrading a distinction. m^r pinkney. the first legislature will be composed of the ablest men to be found. the states will select such to put the government into operation. should the report of the committee or even the amendment be agreed to, the great offices, even those of the judiciary department which are to continue for life, must be filled while those most capable of filling them will be under a disqualification. on the question on m^r king's motion n. h. ay. mas. ay. c^t no. n. j. no. p^a ay. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. the amendment being thus lost by the equal division of the states, m^r williamson moved to insert the words "created or the emoluments whereof shall have been increased" before the word "during" in the report of the committee. m^r king 2^{ded} the motion, & on the question n. h. ay. mas. ay. c^t no. n. j. no. pa. ay. m^d no. v^a ay. n. c. ay. s. c. no. geo. divided. the last clause rendering a seat in the legislature & an office incompatible was agreed to nem. con: the report as amended & agreed to is as follows. "the members of each house shall be ineligible to any civil office under the authority of the u. states, created, or the emoluments whereof shall have been increased during the time for which they shall respectively be elected--and no person holding any office under the u. s. shall be a member of either house during his continuance in office." adjourned. tuesday sep^r 4. 1787. in convention m^r brearly from the committee of eleven made a further partial report as follows "the committee of eleven to whom sundry resolutions &c. were referred on the 31^{st} of august, report that in their opinion the following additions and alterations should be made to the report before the convention, viz.[50] [50] this is an exact copy. the variations in that in the printed journal are occasioned by its incorporation of subsequent amendments. this remark is applicable to other cases.--madison's note. the report was copied by the secretary of the convention, william jackson, into the journal, after it had been read. afterwards two sentences were altered by interlining with lead pencil. the alterations (indicated by italics) are as follows: paragraph 4, "the person having the greatest number of votes ... if such number be a majority of _the whole number_ of the electors _appointed_." paragraph 7, "but no treaty, _except treaties of peace_, shall be made," etc. the changes in paragraph 4 are unimportant: the change in paragraph 7 was an amendment offered by madison september 7th, and adopted.--const. mss.--_journal of federal convention_, p. 323, _et seq._ (1.) the first clause of sect: 1. art. 7. to read as follows--'the legislature shall have power to lay and collect taxes duties imposts & excises, to pay the debts and provide for the common defence & general welfare of the u. s.' (2.) at the end of the 2^d clause of sect. 1. art. 7. add 'and with the indian tribes.' (3.) in the place of the 9^{th} art. sect. 1. to be inserted 'the senate of the u. s. shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present.' (4.) after the word 'excellency' in sect. 1. art. 10. to be inserted. 'he shall hold his office during the term of four years, and together with the vice-president, chosen for the same term, be elected in the following manner, viz. each state shall appoint in such manner as its legislature may direct, a number of electors equal to the whole number of senators and members of the house of representatives, to which the state may be entitled in the legislature. the electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify and transmit sealed to the seat of the gen^l government, directed to the president of the senate--the president of the senate shall in that house open all the certificates, and the votes shall be then & there counted. the person having the greatest number of votes shall be the president, if such number be a majority of that of the electors; and if there be more than one who have such a majority, and have an equal number of votes, then the senate shall immediately choose by ballot one of them for president: but if no person have a majority, then from the five highest on the list, the senate shall choose by ballot the president, and in every case after the choice of the president, the person having the greatest number of votes shall be vice-president: but if there should remain two or more who have equal votes, the senate shall choose from them the vice-president. the legislature may determine the time of choosing and assembling the electors, and the manner of certifying and transmitting their votes.' (5) 'sect. 2. no person except a natural born citizen or a citizen of the u. s. at the time of the adoption of this constitution shall be eligible to the office of president; nor shall any person be elected to that office, who shall be under the age of thirty five years, and who has not been in the whole, at least fourteen years a resident within the u. s.' (6) 'sect. 3. the vice-president shall be ex officio president of the senate, except when they sit to try the impeachment of the president, in which case the chief justice shall preside, and excepting also when he shall exercise the powers and duties of president, in which case & in case of his absence, the senate shall chuse a president pro tempore--the vice president when acting as president of the senate shall not have a vote unless the house be equally divided.' (7) 'sect. 4. the president by and with the advice and consent of the senate, shall have power to make treaties; and he shall nominate and by and with the advice and consent of the senate shall appoint ambassadors, and other public ministers, judges of the supreme court, and all other officers of the u.s. whose appointments are not otherwise herein provided for. but no treaty shall be made without the consent of two thirds of the members present.' (8) after the words--'into the service of the u. s.' in sect. 2. art: 10. add 'and 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 offices.' the latter part of sect. 2. art: 10. to read as follows. (9) 'he shall be removed from his office on impeachment by the house of representatives, and conviction by the senate, for treason, or bribery, and in case of his removal as aforesaid, death, absence, resignation or inability to discharge the powers or duties of his office, the vice-president shall exercise those powers and duties until another president be chosen, or until the inability of the president be removed.'" the (1^{st}) clause of the report was agreed to, nem. con. the (2) clause was also agreed to nem: con: the (3) clause was postponed in order to decide previously on the mode of electing the president. the (4) clause was accordingly taken up. m^r gorham disapproved of making the next highest after the president, the vice-president, without referring the decision to the senate in case the next highest should have less than a majority of votes. as the regulation stands a very obscure man with very few votes may arrive at that appointment. m^r sherman said the object of this clause of the report of the committee was to get rid of the ineligibility, which was attached to the mode of election by the legislature, & to render the executive independent of the legislature. as the choice of the president was to be made out of the five highest, obscure characters were sufficiently guarded against in that case; and he had no objection to requiring the vice-president to be chosen in like manner, where the choice was not decided by a majority in the first instance. m^r madison was apprehensive that by requiring both the president & vice president to be chosen out of the five highest candidates, the attention of the electors would be turned too much to making candidates instead of giving their votes in order to a definitive choice. should this turn be given to the business, the election would, in fact be consigned to the senate altogether. it would have the effect at the same time, he observed, of giving the nomination of the candidates to the largest states. m^r gov^r morris concurred in, & enforced the remarks of m^r madison. m^r randolph & m^r pinkney wished for a particular explanation & discussion of the reasons for changing the mode of electing the executive. m^r gov^r morris said he would give the reasons of the committee and his own. the 1^{st} was the danger of intrigue & faction if the appointm^t should be made by the legislature. 2. the inconveniency of an ineligibility required by that mode in order to lessen its evils. 3. the difficulty of establishing a court of impeachments, other than the senate which would not be so proper for the trial nor the other branch for the impeachment of the president, if appointed by the legislature. 4. nobody had appeared to be satisfied with an appointment by the legislature. 5. many were anxious even for an immediate choice by the people. 6. the indispensable necessity of making the executive independent of the legislature.--as the electors would vote at the same time throughout the u. s. and at so great a distance from each other, the great evil of cabal was avoided. it would be impossible also to corrupt them. a conclusive reason for making the senate instead of the supreme court the judge of impeachments, was that the latter was to try the president after the trial of the impeachment. col: mason confessed that the plan of the committee had removed some capital objections, particularly the danger of cabal and corruption. it was liable however to this strong objection, that nineteen times in twenty the president would be chosen by the senate, an improper body for the purpose. m^r butler thought the mode not free from objections, but much more so than an election by the legislature, where as in elective monarchies, cabal faction & violence would be sure to prevail. m^r pinkney stated as objections to the mode 1. that it threw the whole appointment in fact into the hands of the senate. 2. the electors will be strangers to the several candidates and of course unable to decide on their comparative merits. 3. it makes the executive reeligible which will endanger the public liberty. 4. it makes the same body of men which will in fact elect the president his judges in case of an impeachment. m^r williamson had great doubts whether the advantage of reeligibility would balance the objection to such a dependence of the president on the senate for his reappointment. he thought at least the senate ought to be restrained to the _two_ highest on the list. m^r gov^r morris said the principal advantage aimed at was that of taking away the opportunity for cabal. the president may be made if thought necessary ineligible on this as well as on any other mode of election. other inconveniences may be no less redressed on this plan than any other. m^r baldwin thought the plan not so objectionable when well considered, as at first view: the increasing intercourse among the people of the states, would render important characters less & less unknown; and the senate would consequently be less & less likely to have the eventual appointment thrown into their hands. m^r wilson. this subject has greatly divided the house, and will also divide the people out of doors. it is in truth the most difficult of all on which we have had to decide. he had never made up an opinion on it entirely to his own satisfaction. he thought the plan on the whole a valuable improvement on the former. it gets rid of one great evil, that of cabal & corruption; & continental characters will multiply as we more & more coalesce, so as to enable the electors in every part of the union to know & judge of them. it clears the way also for a discussion of the question of re-eligibility on its own merits which the former mode of election seemed to forbid. he thought it might be better however to refer the eventual appointment to the legislature than to the senate, and to confine it to a smaller number than five of the candidates. the eventual election by the legislature w^d not open cabal anew, as it would be restrained to certain designated objects of choice, and as these must have had the previous sanction of a number of the states; and if the election be made as it ought as soon as the votes of the electors are opened & it is known that no one has a majority of the whole there can be little danger of corruption. another reason for preferring the legislature to the senate in this business was that the house of rep^s will be so often changed as to be free from the influence & faction to which the permanence of the senate may subject that branch. m^r randolph preferred the former mode of constituting the executive, but if the change was to be made, he wished to know why the eventual election was referred to the _senate_ and not to the _legislature_? he saw no necessity for this and many objections to it. he was apprehensive also that the advantage of the eventual appointment would fall into the hands of the states near the seat of government. m^r gov^r morris said the _senate_ was preferred because fewer could then say to the president, you owe your appointment to us. he thought the president would not depend so much on the senate for his reappointment as on his general good conduct. the further consideration of the report was postponed that each member might take a copy of the remainder of it. the following motion was referred to the committee of eleven--to wit,--"to prepare & report a plan for defraying the expences of the convention." [51]m^r pinkney moved a clause declaring "that each house should be judge of the privilege of its own members." m^r gov^r morris 2^{ded} the motion. [51] this motion not contained in the printed journal--madison's note. m^r randolph & m^r madison expressed doubts as to the propriety of giving such a power, & wished for a postponement. m^r gov^r morris thought it so plain a case that no postponement could be necessary. m^r wilson thought the power involved, and the express insertion of it needless. it might beget doubts as to the power of other public bodies, as courts &c. every court is the judge of its own privileges. m^r madison distinguished between the power of judging of privileges previously & duly established, and the effect of the motion which would give a discretion to each house as to the extent of its own privileges. he suggested that it would be better to make provision for ascertaining by _law_, the privileges of each house, than to allow each house to decide for itself. he suggested also the necessity of considering what privileges ought to be allowed to the executive. adjourned. wednesday sep^r 5. 1787. in convention. m^r brearley from the committee of eleven made a farther report as follows, (1) to add to the clause "to declare war" the words "and grant letters of marque and reprisal." (2) to add to the clause "to raise and support armies" the words "but no appropriation of money to that use shall be for a longer term than two years." (3) instead of sect: 12. art 6. say--"all bills for raising revenue shall originate in the house of representatives, and shall be subject to alterations and amendments by the senate: no money shall be drawn from the treasury, but in consequence of appropriations made by law." (4) immediately before the last clause of sect. 1. art. 7. insert "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 the legislature become the seat of the government of the u. s. and to exercise like authority over all places purchased for the erection of forts, magazines, arsenals, dock yards, and other needful buildings." (5) "to promote the progress of science and useful arts by securing for limited times to authors & inventors, the exclusive right to their respective writings and discoveries." this report being taken up,--the (1) clause was agreed to nem: con: to the (2) clause m^r gerry objected that it admitted of appropriations to an army, for two years instead of one, for which he could not conceive a reason, that it implied that there was to be a standing army which he inveighed against as dangerous to liberty, as unnecessary even for so great an extent of country as this, and if necessary, some restriction on the number & duration ought to be provided: nor was this a proper time for such an innovation. the people would not bear it. m^r sherman remarked that the appropriations were permitted only, not required to be for two years. as the legislature is to be biennially elected, it would be inconvenient to require appropriations to be for one year, as there might be no session within the time necessary to renew them. he should himself he said like a reasonable restriction on the number and continuance of an army in time of peace. the (2) clause was then agreed to nem: con: the (3) clause, m^r gov^r morris moved to postpone. it had been agreed to in the committee on the ground of compromise, and he should feel himself at liberty to dissent to it, if on the whole he should not be satisfied with certain other parts to be settled.--m^r pinkney 2^{ded} the motion. m^r sherman was for giving immediate ease to those who looked on this clause as of great moment, and for trusting to their concurrence in other proper measures. on the question for postponing n. h. ay. mas. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay. so much of the (4) clause as related to the seat of government was agreed to nem: con: on the residue to wit, "to exercise like authority over all places purchased for forts" &c. m^r gerry contended that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the gen^l government. m^r king thought himself the provision unnecessary, the power being already involved: but would move to insert after the word "purchased" the words "by the consent of the legislature of the state." this would certainly make the power safe. m^r gov^r morris 2^{ded} the motion, which was agreed to nem: con: as was then the residue of the clause as amended. the (5) clause was agreed to nem: con: the following resolution & order being reported from the committee of eleven, to wit, "resolved that the u. s. in congress be requested to allow and cause to be paid to the secretary and other officers of this convention such sums in proportion to their respective times of service, as are allowed to the secretary & similar officers of congress." "ordered that the secretary make out & transmit to the treasury office of the u. s. an account for the said services & for the incidental expences of this convention." the resolution & order were separately agreed to nem: con: m^r gerry gave notice that he should move to reconsider articles xix. xx. xxi. xxii. m^r williamson gave like notice as to the article fixing the number of representatives, which he thought too small. he wished also to allow rho: island more than one, as due to her probable number of people, and as proper to stifle any pretext arising from her absence on the occasion. the report made yesterday as to the appointment of the executive being then taken up. m^r pinkney renewed his opposition to the mode, arguing 1. that the electors will not have sufficient knowledge of the fittest men, & will be swayed by an attachment to the eminent men of their respective states. hence 2^{dly} the dispersion of the votes would leave the appointment with the senate, and as the president's reappointment will thus depend on the senate he will be the mere creature of that body. 3. he will combine with the senate ag^{st} the house of representatives. 4. this change in the mode of election was meant to get rid of the ineligibility of the president a second time, whereby he will become fixed for life under the auspices of the senate. m^r gerry did not object to this plan of constituting the executive in itself, but should be governed in his final vote by the powers that may be given to the president. m^r rutlidge was much opposed to the plan reported by the committee. it would throw the whole power into the senate. he was also against a re-eligibility. he moved to postpone the report under consideration & take up the original plan of appointment by the legislature, to wit. "he shall be elected by joint ballot by the legislature to which election a majority of the votes of the members present shall be required: he shall hold his office during the term of seven years; but shall not be elected a second time." on this motion to postpone n. h. div^d. mas. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. no. col. mason admitted that there were objections to an appointment by the legislature as originally planned. he had not yet made up his mind, but would state his objections to the mode proposed by the committee. 1. it puts the appointment in fact into the hands of the senate; as it will rarely happen that a majority of the whole votes will fall on any one candidate: and as the existing president will always be one of the 5 highest, his reappointment will of course depend on the senate. 2. considering the powers of the president & those of the senate, if a coalition should be established between these two branches, they will be able to subvert the constitution--the great objection with him would be removed by depriving the senate of the eventual election. he accordingly moved to strike out the words "if such number be a majority of that of the electors." m^r williamson 2^{ded} the motion. he could not agree to the clause without some such modification. he preferred making the highest tho' not having a majority of the votes, president, to a reference of the matter to the senate. referring the appointment to the senate lays a certain foundation for corruption & aristocracy. m^r gov^r morris thought the point of less consequence than it was supposed on both sides. it is probable that a majority of the votes will fall on the same man. as each elector is to give two votes, more than 1/4 will give a majority. besides as one vote is to be given to a man out of the state, and as this vote will not be thrown away, 1/2 the votes will fall on characters eminent & generally known. again if the president shall have given satisfaction, the votes will turn on him of course, and a majority of them will reappoint him, without resort to the senate: if he should be disliked, all disliking him, would take care to unite their votes so as to ensure his being supplanted. col. mason those who think there is no danger of there not being a majority for the same person in the first instance, ought to give up the point to those who think otherwise. m^r sherman reminded the opponents of the new mode proposed that if the small states had the advantage in the senate's deciding among the five highest candidates the large states would have in fact the nomination of these candidates. on the motion of col: mason n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. m^d ay.[52] v^a no. n. c. ay. s. c. no. geo. no. [52] in printed journal maryland--no--madison's note. m^r wilson moved to strike out "senate" and insert the word "legislature." m^r madison considered it as a primary object to render an eventual resort to any part of the legislature improbable. he was apprehensive that the proposed alteration would turn the attention of the large states too much to the appointment of candidates, instead of aiming at an effectual appointment of the officer, as the large states would predominate in the legislature which would have the final choice out of the candidates. whereas if the senate in which the small states predominate should have the final choice, the concerted effort of the large states would be to make the appointment in the first instance conclusive. m^r randolph. we have in some revolutions of this plan made a bold stroke for monarchy. we are now doing the same for an aristocracy. he dwelt on the tendency of such an influence in the senate over the election of the president in addition to its other powers, to convert that body into a real & dangerous aristocracy. m^r dickinson was in favor of giving the eventual election to the legislature, instead of the senate. it was too much influence to be superadded to that body. on the question moved by m^r wilson n. h. div^d. mas. no. c^t no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. no. s. c. ay. geo. no. m^r madison & m^r williamson moved to strike out the word "majority" and insert "one-third" so that the eventual power might not be exercised if less than a majority, but not less than 1/3 of the electors should vote for the same person. m^r gerry objected that this would put it in the power of three or four states to put in whom they pleased. m^r williamson. there are seven states which do not contain one third of the people. if the senate are to appoint, less than one sixth of the people will have the power. on the question n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. m^r gerry suggested that the eventual election should be made by six senators and seven representatives chosen by joint ballot of both houses. m^r king observed that the influence of the small states in the senate was somewhat balanced by the influence of the large states in bringing forward the candidates,[53] and also by the concurrence of the small states in the committee in the clause vesting the exclusive origination of money bills in the house of representatives. [53] this explains the compromise mentioned above by m^r gov^r morris. col. mason, m^r gerry & other members from large states set great value on this privilege of originating money bills. of this the members from the small states, with some from the large states who wished a high mounted gov^t endeavored to avail themselves, by making that privilege, the price of arrangements in the constitution favorable to the small states, and to the elevation of the government.--madison's note. col: mason moved to strike out the word "five" and insert the word "three" as the highest candidates for the senate to choose out of. m^r gerry 2^{ded} the motion. m^r sherman would sooner give up the plan. he would prefer seven or thirteen. on the question moved by col: mason & m^r gerry n. h. no. mas. no. c^t no. n. j. no. p^a no. delaware [and] m^d no. v^a ay. n. c. ay. s. c. no. geo. no. m^r spaight and m^r rutlidge moved to strike out "five" and insert "thirteen"--to which all the states disagreed--except n. c. & s. c. m^r madison & m^r williamson moved to insert after "electors" the words "who shall have balloted" so that the non voting electors not being counted might not increase the number necessary as a majority of the whole to decide the choice without the agency of the senate. on this question n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. m^r dickinson moved, in order to remove ambiguity from the intention of the clause as explained by the vote, to add, after the words "if such number be a majority of the whole number of the electors" the word "appointed." on this motion n. h. ay. mas. ay. con. ay. n. j. ay. p^a ay. delaware [and] m^d ay. v^a no. n. c. no. s. c. ay. geo. ay. col: mason. as the mode of appointment is now regulated, he could not forbear expressing his opinion that it is utterly inadmissible. he would prefer the government of prussia to one which will put all power into the hands of seven or eight men, and fix an aristocracy worse than absolute monarchy. the words "and of their giving their votes" being inserted on motion for that purpose, after the words "the legislature may determine the time of chusing and assembling the electors." the house adjourned. thursday sep^r 6. 1787. in convention m^r king and m^r gerry moved to insert in the (5)[54] clause of the report (see sep^r 4) after the words "may be entitled in the legislature" the words following--"but no person shall be appointed an elector who is a member of the legislature of the u. s. or who holds any office of profit or trust under the u. s." which passed nem: con: [54] this is a mistake and should be fourth clause. see p. 298. m^r gerry proposed as the president was to be elected by the senate out of the five highest candidates, that if he should not at the end of his term be re-elected by a majority of the electors, and no other candidate should have a majority, the eventual election should be made by the legislature. this he said would relieve the president from his particular dependence on the senate for his continuance in office. m^r king liked the idea, as calculated to satisfy particular members and promote unanimity & as likely to operate but seldom. m^r read opposed it, remarking that if individual members were to be indulged, alterations would be necessary to satisfy most of them. m^r williamson espoused it as a reasonable precaution against the undue influence of the senate. m^r sherman liked the arrangement as it stood, though he should not be averse to some amendments. he thought he said that if the legislature were to have the eventual appointment instead of the senate, it ought to vote in the case by states, in favor of the small states, as the large states would have so great an advantage in nominating the candidates. m^r gov^r morris thought favorably of m^r gerry's proposition. it would free the president from being tempted in naming to offices, to conform to the will of the senate, & thereby virtually give the appointments to office, to the senate. m^r wilson said that he had weighed carefully the report of the committee for remodelling the constitution of the executive; and on combining it with other parts of the plan, he was obliged to consider the whole as having a dangerous tendency to aristocracy; as throwing a dangerous power into the hands of the senate. they will have in fact, the appointment of the president, and through his dependence on them, the virtual appointment to offices; among others the officers of the judiciary department. they are to make treaties; and they are to try all impeachments. in allowing them thus to make the executive & judiciary appointments, to be the court of impeachments, and to make treaties which are to be laws of the land, the legislative, executive & judiciary powers are all blended in one branch of the government. the power of making treaties involves the case of subsidies, and here as an additional evil, foreign influence is to be dreaded. according to the plan as it now stands, the president will not be the man of the people as he ought to be, but the minion of the senate. he cannot even appoint a tide-waiter without the senate. he had always thought the senate too numerous a body for making appointments to office. the senate will moreover in all probability be in constant session. they will have high salaries. and with all those powers, and the president in their interest, they will depress the other branch of the legislature, and aggrandize themselves in proportion. add to all this, that the senate sitting in conclave, can by holding up to their respective states various and improbable candidates, contrive so to scatter their votes, as to bring the appointment of the president ultimately before themselves. upon the whole, he thought the new mode of appointing the president, with some amendments, a valuable improvement; but he could never agree to purchase it at the price of the ensuing parts of the report, nor befriend a system of which they make a part. m^r gov^r morris expressed his wonder at the observations of m^r wilson so far as they preferred the plan in the printed report to the new modification of it before the house, and entered into a comparative view of the two, with an eye to the nature of m^r wilsons objections to the last. by the first the senate he observed had a voice in appointing the president out of all the citizens of the u. s: by this they were limited to five candidates previously nominated to them, with a probability of being barred altogether by the successful ballot of the electors. here surely was no increase of power. they are now to appoint judges nominated to them by the president. before they had the appointment without any agency whatever of the president. here again was surely no additional power. if they are to make treaties as the plan now stands, the power was the same in the printed plan. if they are to try impeachments, the judges must have been triable by them before. wherein then lay the dangerous tendency of the innovations to establish an aristocracy in the senate? as to the appointment of officers, the weight of sentiment in the house, was opposed to the exercise of it by the president alone; though it was not the case with himself. if the senate would act as was suspected, in misleading the states into a fallacious disposition of their votes for a president, they would, if the appointment were withdrawn wholly from them, make such representations in their several states where they have influence, as would favor the object of their partiality. m^r williamson, replying to m^r morris, observed that the aristocratic complexion proceeds from the change in the mode of appointing the president which makes him dependent on the senate. m^r clymer said that the aristocratic part to which he could never accede was that in the printed plan, which gave the senate the power of appointing to offices. m^r hamilton said that he had been restrained from entering into the discussions by his dislike of the scheme of gov^t in general; but as he meant to support the plan to be recommended, as better than nothing, he wished in this place to offer a few remarks. he liked the new modification, on the whole, better than that in the printed report. in this the president was a monster elected for seven years, and ineligible afterwards; having great powers, in appointments to office, & continually tempted by this constitutional disqualification to abuse them in order to subvert the government. although he should be made re-eligible, still if appointed by the legislature, he would be tempted to make use of corrupt influence to be continued in office. it seemed peculiarly desirable therefore that some other mode of election should be devised. considering the different views of different states, & the different districts northern middle & southern, he concurred with those who thought that the votes would not be concentered, and that the appointment would consequently in the present mode devolve on the senate. the nomination to offices will give great weight to the president. here then is a mutual connexion & influence, that will perpetuate the president, and aggrandize both him & the senate. what is to be the remedy? he saw none better than to let the highest number of ballots, whether a majority or not, appoint the president. what was the objection to this? merely that too small a number might appoint. but as the plan stands, the senate may take the candidate having the smallest number of votes, and make him president. m^r spaight & m^r williamson moved to insert "seven" instead of "four" years for the term of the president[55]- [55] an ineligibility w^d have followed (tho' it would seem from the vote not in the opinion of all) this prolongation of the term.--madison's note. on this motion n. h. ay. mas. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. m^r spaight & m^r williamson, then moved to insert "six," instead of "four". on which motion n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. no. on the term "four" all the states were ay, except n. carolina, no. on the question (clause 4. in the report) for appointing president by electors---down to the words,--"entitled in the legislature" inclusive n. h. ay. mas: ay. con^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo.--ay. it was moved that the electors meet at the seat of the gen^l gov^t which passed in the negative n. c. only being ay. it was moved to insert the words "under the seal of the state" after the word "transmit" in the 4^{th}. clause of the report which was disagreed to; as was another motion to insert the words "and who shall have given their votes" after the word "appointed" in the 4^{th} clause of the report as added yesterday on motion of m^r dickinson. on several motions, the words "in presence of the senate and house of representatives" were inserted after the word "counted" and the word "immediately" before the word "choose;" and the words "of the electors" after the word "votes." m^r spaight said if the election by electors is to be crammed down, he would prefer their meeting altogether and deciding finally without any reference to the senate and moved "that the electors meet at the seat of the general government." m^r williamson 2^{ded} the motion, on which all the states were in the negative except n: carolina. on motion the words "but the election shall be on the same day throughout the u. s." were added after the words "transmitting their votes" n. h. ay. mas. no. c^t ay. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo.--ay. on a question on the sentence in clause (4) "if such number be a majority of that of the electors appointed" n. h. ay. mas. ay. c^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n.c. no. s. c. ay. geo. ay. on a question on the clause referring the eventual appointment of the president to the senate n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. v^a ay. n. c. no. here the call ceased. m^r madison made a motion requiring 2/3 at least of the senate to be present at the choice of a president. m^r pinkney 2^{ded} the motion. m^r gorham thought it a wrong principle to require more than a majority in any case. in the present case it might prevent for a long time any choice of a president. on the question moved by m^r m. and m^r p. n. h. ay. mas. abs^t. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r williamson suggested as better than an eventual choice by the senate, that this choice should be made by the legislature, voting by _states_ and not _per capita_. m^r sherman suggested the "house of rep^s" as preferable to the legislature, and moved accordingly, to strike out the words "the senate shall immediately choose &c." and insert "the house of representatives shall immediately choose by ballot one of them for president, the members from each state having one vote." col: mason liked the latter mode best as lessening the aristocratic influence of the senate. on the motion of m^r sherman n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gov^r morris suggested the idea of providing that in all cases, the president in office, should not be one of the five candidates; but be only re-eligible in case a majority of the electors should vote for him. (this was another expedient for rendering the president independent of the legislative body for his continuance in office.) m^r madison remarked that as a majority of members w^d make a quorum in the h. of rep^s it would follow from the amendment of m^r sherman giving the election to a majority of states, that the president might be elected by two states only, virg^a & pen^a which have 18 members, if these states alone should be present. on a motion that the eventual election of presid^t in case of _an equality_ of the votes of the electors be referred to the house of rep^s n. h. ay. mas. ay. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r king moved to add to the amendment of m^r sherman "but a quorum for this purpose shall consist of a member or members from two thirds of the states, and also of a majority of the whole number of the house of representatives." col: mason liked it as obviating the remark of m^r madison--the motion as far as "states" inclusive was ag^d to. on the residue to wit, "and also of a majority of the whole number of the house of reps^s." it passed in the negative. n. h. no. mas. ay. c^t ay. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. the report relating to the appointment of the executive stands as amended, as follows. "he shall hold his office during the term of four years, and together with the vice-president, chosen for the same term, be elected in the following manner. each state shall appoint in such manner as its legislature may direct, a number of electors equal to the whole number of senators and members of the house of representatives, to which the state may be entitled in the legislature: but no person shall be appointed an elector who is a member of the legislature of the u. s. or who holds any office of profit or trust under the u. s. the electors shall meet in their respective states and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the seat of the general government, directed to the president of the senate. the president of the senate shall in the presence of the senate and house of representatives open all the certificates & the votes shall then be counted. the person having the greatest number of votes shall be the president (if such number be a majority of the whole number of electors appointed) and if there be more than one who have such majority, and have an equal number of votes, then the house of representatives shall immediately choose by ballot one of them for president, the representation from each state having one vote. but if no person have a majority, then from the five highest on the list, the house of representatives shall in like manner choose by ballot the president. in the choice of a president by the house of representatives, a quorum shall consist of a member or members from two thirds of the states, ([56]and the concurrence of a majority of all the states shall be necessary to such choice.)--and in every case after the choice of the president, the person having the greatest number of votes of the electors shall be the vice-president: but, if there should remain two or more who have equal votes, the senate shall choose from them the vice-president.[57] [56] note.--this clause was not inserted on this day, but on the 7^{th}. of sep^r--see friday the 7^{th}.--madison's note. [57] september 6 madison wrote to jefferson (cipher represented by italics): "... as the convention will shortly rise i should feel little scruple in disclosing what will be public here, before it could reach you, were it practicable for me to guard by cypher against an intermediate discovery. but i am deprived of this resource by the shortness of the interval between the receipt of your letter of june 20 and the date of this. this is the first day which has been free from committee service, both before & after the hours of the house, and the last that is allowed me by the time advertised for the sailing of the packet. "the convention consists now as it has generally done of eleven states. there has been no intermission of its sessions since a house was formed, except an interval of about ten days allowed a committee appointed to detail the general propositions agreed on in the house. the term of its dissolution cannot be more than one or two weeks distant. a gover^{mt} will probably be submitted to the _people of_ the _states_, consisting of a _president_, _cloathed_ with _executive power_; a _senate chosen_ by the _legislatures_, and another _house chosen_ by the _people of the states_, jointly _possessing_ the _legislative_ power; and a regular _judiciary_ establishment. the mode of constituting the _executive_ is among the few points not yet finally settled. the _senate_ will consist of two _members_ from each _state_, and _appointed sexennially_. the other, of _members_, _appointed biennially_ by the _people of the states_, in proportion to their number. the legislative power will _extend to taxation_, trade, and sundry other general matters. the powers of congress will be _distributed_, according to their _nature_, _among the several departments_. the states will be _restricted from paper money_ and in a _few other instances_. these are _the outlines_. the extent of them may perhaps surprize you. i hazard an opinion nevertheless that the _plan_, _should it be adopted_, will neither effectually _answer_ its _national object_, nor prevent the local _mischiefs_ which everywhere _excite disgusts_ ag^{st} the _state governments_. the grounds of this opinion will be the subject of a future letter. "i have written to a friend in cong^s intimating in a covert manner the necessity of deciding & notifying the intentions of cong^s with regard to their foreign ministers after may next, and have dropped a hint on the communications of dumas. "congress have taken some measures for disposing of the public land, and have actually sold a considerable tract. another bargain i learn is on foot for a further sale. "nothing can exceed the universal anxiety for the event of the meeting here. reports and conjectures abound concerning the nature of the plan which is to be proposed. the public however is certainly in the dark with regard to it. the convention is equally in the dark as to the reception w^{ch} may be given to it on its publication. all the prepossessions are on the right side, but it may well be expected that certain characters will wage war against any reform whatever. my own idea is that the public mind will now or in a very little time receive anything that promises stability to the public councils & security to private rights, and that no regard ought to be had to local prejudices or temporary considerations. if the present moment be lost, it is hard to say what may be our fate. "our information from virginia is far from being agreeable. in many parts of the country the drought has been extremely injurious to the corn. i fear, tho' i have no certain information, that orange & albemarle share in the distress. the people also are said to be generally discontented. a paper emission is again a topic among them, so is an instalment of all debts in some places and the making property a tender in others. the taxes are another source of discontent. the weight of them is complained of, and the abuses in collecting them still more so. in several counties the prisons & court houses & clerks' offices have been wilfully burnt. in green briar the course of justice has been mutinously stopped, and associations entered into ag^{st} the payment of taxes. no other county has yet followed the example. the approaching meeting of the assembly will probably allay the discontents on one side by measures which will excite them on another. "mr. wythe has never returned to us. his lady whose illness carried him away, died some time after he got home. the other deaths, in virg^a are col. a. cary and a few days ago, mrs. harrison, wife of benj^n harrison, jun^r, & sister of j. f. mercer. wishing you all happiness. "i remain, dear sir, y^{rs} affect^{ly}. "give my best wishes to mazzei. i have rec^d his letter & book and will write by the next packet to him. dorhman is still in v^a cong^s have done nothing for him in his affair. i am not sure that 9 st^s have been assembled of late. at present, it is doubtful whether there are seven."--mad. mss. the legislature may determine the time of choosing the electors, and of their giving their votes; and the manner of certifying and transmitting their votes--but the election shall be on the same day through-out the u. states." adjourned. friday sep^r 7[58] 1787. in convention [58] the following letter was received on this day from jonas phillips, a jew in philadelphia: "sires "with leave and submission i address myself to those in whome there is wisdom understanding and knowledge. they are the honourable personages appointed and made overseers of a part of the terrestrial globe of the earth, namely the 13 united states of america in convention assembled, the lord preserve them amen- "i the subscriber being one of the people called jews of the city of philadelphia, a people scattered and despersed among all nations do behold with concern that among the laws in the constitution of pennsylvania their is a clause sect. 10 to viz--i do belive in one god the creature and governour of the universe the rewarder of the good and the punisher of the wicked--and i do acknowledge the scriptures of the old and new testement to be given by a devine inspiration--to swear and believe that the new testement was given by devine inspiration is absolutly against the religious principle of a jew and is against his conscience to take any such oath--by the above law a jew is deprived of holding any publick office or place of government which is a contridectory to the bill of right sect 2. viz "that all men have a natural and unalienable right to worship almighty god according to the dectates of their own conscience and understanding, and that no man aught or of right can be compelled to attend any religious worship or erect or support any place of worship or maintain any minister contrary to or against his own free will and consent nor can any man who acknowledges the being of a god be justly deprived or abridged of any civil right as a citizen on account of his religious sentiments or peculiar mode of religious worship, and that no authority can or aught to be vested in or assumed by any power what ever that shall in any case interfere or in any manner controul the right of conscience in the free exercise of religious worship- "it is well known among all the citizens of the 13 united states that the jews have been true and faithfull whigs, and during the late contest with england they have been foremost in aiding and assisting the states with their lifes and fortunes, they have supported the cause, have bravely faught and bleed for liberty which they can not enjoy- therefore if the honourable convention shall in ther wisdom think fit and alter the said oath and leave out the words to viz--and i do acknowledge the scripture of the new testeraent to be given by devine inspiration then the israeletes will think them self happy to live under a government where all religious societys are on an eaquel footing--i solecet this favour for my self my childreen and posterity and for the benefit of all the israeletes through the 13 united states of america. "my prayers is unto the lord. may the people of this states rise up as a great and young lion, may they prevail against their enemies, may the degrees of honour of his excellencey the president of the convention george washington, be extollet and raise up. may every one speak of his glorious exploits. may god prolong his days among us in this land of liberty--may he lead the armies against his enemys as he has done hereuntofore--may god extend peace unto the united states--may they get up to the highest prosperetys--may god extend peace to them and their seed after them so long as the sun and moon endureth--and may the almighty god of our father abraham isaac and jacob endue this noble assembly with wisdom judgement and unamity in their councells, and may they have the satisfaction to see that their present toil and labour for the wellfair of the united states may be approved of, through all the world and perticular by the united states of america is the ardent prayer of sires. "your most devoted obe^d servant "jonas phillips "philadelphia 24^{th} ellul 5547 or sep^r 7^{th}. 1787"--const. mss. the mode of constituting the executive being resumed, m^r randolph moved, to insert in the first section of the report made yesterday "the legislature may declare by law what officer of the u. s. shall act as president in case of the death, resignation, or disability of the president and vice-president; and such officer shall act accordingly until the time of electing a president shall arrive." m^r madison observed that this, as worded, would prevent a supply of the vacancy by an intermediate election of the president, and moved to substitute--"until such disability be removed, or a president shall be elected.[59] m^r gov^r morris 2^{ded} the motion, which was agreed to. [59] in the printed journal this amendment is put into the original motion.--madison's note. it seemed to be an objection to the provision with some, that according to the process established for chusing the executive, there would be difficulty in effecting it at other than the fixed periods; with others, that the legislature was restrained in the temporary appointment to "_officers_" of the u. s.: they wished it to be at liberty to appoint others than such. on the motion of m^r randolph as amended, it passed in the affirmative. n. h. divided. mas. no. c^t no. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. ay. geo. ay. m^r gerry moved "that in the election of president by the house of representatives, no state shall vote by less than three members, and where that number may not be allotted to a state, it shall be made up by its senators; and a concurrence of a majority of all the states shall be necessary to make such choice." without some such provision five individuals might possibly be competent to an election; these being a majority of two thirds of the existing number of states; and two thirds being a quorum for this business. m^r madison 2^{ded} the motion. m^r read observed that the states having but one member only in the house of rep^s would be in danger of having no vote at all in the election: the sickness or absence either of the representative or one of the senators would have that effect. m^r madison replied that, if one member of the house of representatives should be left capable of voting for the state, the states having one representative only would still be subject to that danger. he thought it an evil that so small a number at any rate should be authorized to elect. corruption would be greatly facilitated by it. the mode itself was liable to this further weighty objection that the representatives of a _minority_ of the people, might reverse the choice of a _majority_ of the _states_ and of the _people_. he wished some cure for this inconveniency might yet be provided. m^r gerry withdrew the first part of his motion; and on the, question on the 2^d part viz: "and a concurrence of a majority of all the states shall be necessary to make such choice" to follow the words "a member or members from two thirds of the states"--it was agreed to nem: con: the section 2. (see sep^r 4) requiring that the president should be a natural-born citizen &c., & have been resident for fourteen years, & be thirty five years of age, was agreed to nem: con: section 3 (see sep^r 4). "the vice president shall be ex-officio president of the senate" m^r gerry opposed this regulation. we might as well put the president himself at the head of the legislature. the close intimacy that must subsist between the president & vice-president makes it absolutely improper. he was ag^{st} having any vice president. m^r gov^r morris. the vice president then will be the first heir apparent that ever loved his father. if there should be no vice president, the president of the senate would be temporary successor, which would amount to the same thing. m^r sherman saw no danger in the case. if the vice-president were not to be president of the senate, he would be without employment, and some member by being made president must be deprived of his vote, unless when an equal division of votes might happen in the senate, which would be but seldom. m^r randolph concurred in the opposition to the clause. m^r williamson, observed that such an officer as vice-president was not wanted. he was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time. col: mason, thought the office of vice-president an encroachment on the rights of the senate; and that it mixed too much the legislative & executive, which as well as the judiciary departments, ought to be kept as separate as possible. he took occasion to express his dislike of any reference whatever of the power to make appointments, to either branch of the legislature. on the other hand he was averse to vest so dangerous a power in the president alone. as a method for avoiding both, he suggested that a privy council of six members to the president should be established; to be chosen for six years by the senate, two out of the eastern two out of the middle, and two out of the southern quarters of the union, & to go out in rotation two every second year; the concurrence of the senate to be required only in the appointment of ambassadors, and in making treaties, which are more of a legislative nature. this would prevent the constant sitting of the senate which he thought dangerous, as well as keep the departments separate & distinct. it would also save the expence of constant sessions of the senate. he had he said always considered the senate as too unwieldy & expensive for appointing officers, especially the smallest, such as tide waiters &c. he had not reduced his idea to writing, but it could be easily done if it should be found acceptable. on the question shall the vice president be ex officio president of the senate? n. h. ay. mas. ay. c^t ay. n. j. no. p^a ay. del. ay. mar. no. v^a ay. n. c. abs^t. s. c. ay. geo. ay. the other parts of the same section (3) were then agreed to. the section 4.--to wit. "the president by & with the advice and consent of the senate shall have power to make treaties &c." m^r wilson moved to add after the word "senate" the words, "and house of representatives." as treaties he said are to have the operation of laws, they ought to have the sanction of laws also. the circumstance of secrecy in the business of treaties formed the only objection; but this he thought, so far as it was inconsistent with obtaining the legislative sanction, was outweighed by the necessity of the latter. m^r sherman thought the only question that could be made was whether the power could be safely trusted to the senate. he thought it could; and that the necessity of secrecy in the case of treaties forbade a reference of them to the whole legislature. m^r fitzimmons 2^{ded} the motion of m^r wilson, & on the question n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. the first sentence as to making treaties was then agreed to; nem: con: "he shall nominate &c. appoint ambassadors &c." m^r wilson objected to the mode of appointing, as blending a branch of the legislature with the executive. good laws are of no effect without a good executive; and there can be no good executive without a responsible appointment of officers to execute. responsibility is in a manner destroyed by such an agency of the senate. he would prefer the council proposed by col: mason, provided its advice should not be made obligatory on the president. m^r pinkney was against joining the senate in these appointments, except in the instances of ambassadors who he thought ought not to be appointed by the president. m^r gov^r morris said that as the president was to nominate, there would be responsibility, and as the senate was to concur, there would be security. as congress now make appointments there is no responsibility. m^r gerry. the idea of responsibility in the nomination to offices is chimerical. the president cannot know all characters, and can therefore always plead ignorance. m^r king. as the idea of a council proposed by col. mason has been supported by m^r wilson, he would remark that most of the inconveniences charged on the senate are incident to a council of advice. he differed from those who thought the senate would sit constantly. he did not suppose it was meant that all the minute officers were to be appointed by the senate, or any other original source, but by the higher officers of the departments to which they belong. he was of opinion also that the people would be alarmed at an unnecessary creation of new corps which must increase the expence as well as influence of the government. on the question on these words in the clause viz--"he shall nominate & by & with the advice and consent of the senate, shall appoint ambassadors, and other public ministers (and consuls) judges of the supreme court". agreed to nem: con: the insertion of "and consuls" having first taken place. on the question on the following words "and all other officers of u.s." n. h. ay. mas. ay. c^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. on motion of m^r spaight--"that the president shall have power to fill up all vacancies that may happen during the recess of the senate by granting commissions which shall expire at the end of the next session of the senate." it was agreed to nem: con: section 4. "the president by and with the advice and consent of the senate shall have power to make treaties,--_but no treaty shall be made without the consent of two thirds of the members present_"--this last clause being before the house. m^r wilson thought it objectionable to require the concurrence of 2/3 which puts it into the power of a minority to controul the will of a majority. m^r king concurred in the objection; remarking that as the executive was here joined in the business, there was a check which did not exist in congress where the concurrence of 2/3 was required. m^r madison moved to insert after the word "treaty" the words "except treaties of peace" allowing these to be made with less difficulty than other treaties--it was agreed to nem: con: m^r madison then moved to authorize a concurrence of two thirds of the senate to make treaties of peace, without the concurrence of the president.--the president he said would necessarily derive so much power and importance from a state of war that he might be tempted if authorized, to impede a treaty of peace. m^r butler 2^{ded} the motion. m^r gorham thought the precaution unnecessary as the means of carrying on the war would not be in the hands of the president, but of the legislature. m^r gov^r morris thought the power of the president in this case harmless; and that no peace ought to be made without the concurrence of the president, who was the general guardian of the national interests. m^r butler was strenuous for the motion, as a necessary security against ambitious & corrupt presidents. he mentioned the late perfidious policy of the statholder in holland; and the artifices of the duke of marlbro' to prolong the war of which he had the management. m^r gerry was of opinion that in treaties of peace a greater rather than less proportion of votes was necessary, than in other treaties. in treaties of peace the dearest interests will be at stake, as the fisheries, territory &c. in treaties of peace also there is more danger to the extremities of the continent of being sacrificed, than on any other occasions. m^r williamson thought that treaties of peace should be guarded at least by requiring the same concurrence as in other treaties. on the motion of m^r madison & m^r butler n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. ay. geo. ay. on the part of the clause concerning treaties amended by the exception as to treaties of peace, n. h. ay. mas. ay. c^t ay. n. j. no. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. "and 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 offices," being before the house col: mason[60] said that in rejecting a council to the president we were about to try an experiment on which the most despotic government had never ventured. the grand signor himself had his divan. he moved to postpone the consideration of the clause in order to take up the following. [60] in the printed journal, m^r madison is erroneously substituted for col: mason.--madison's note. "that it be an instruction to the committee of the states to prepare a clause or clauses for establishing an executive council, as a council of state for the president of the u. states, to consist of six members, two of which from the eastern, two from the middle, and two from the southern states, with a rotation and duration of office similar to those of the senate; such council to be appointed by the legislature or by the senate." doctor franklin 2^{ded} the motion. we seemed he said too much to fear cabals in appointments by a number, and to have too much confidence in those of single persons. experience shewed that caprice, the intrigues of favorites & mistresses, were nevertheless the means most prevalent in monarchies. among instances of abuse in such modes of appointment, he mentioned the many bad governors appointed in g. b. for the colonies. he thought a council would not only be a check on a bad president but be a relief to a good one. m^r gov^r morris. the question of a council was considered in the committee, where it was judged that the presid^t by persuading his council to concur in his wrong measures, would acquire their protection for them. m^r wilson approved of a council in preference to making the senate a party to appointm^{ts}. m^r dickinson was for a council. it w^d be a singular thing if the measures of the executive were not to undergo some previous discussion before the president. m^r madison was in favor of the instruction to the committee proposed by col: mason. the motion of m^r mason was negatived. may^d ay. s. c. ay. geo. ay.--n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. v^a no. n. c. no. on the question, "authorizing the president to call for the opinions of the heads of departments, in writing": it passed in the affirmative n. h. only being no.[61] [61] not so stated in the printed journal; but conformable to the result afterwards appearing.--madison's note. the clause was then unanimously agreed to-m^r williamson & m^r spaight moved "that no treaty of peace affecting territorial rights sh^d be made without the concurrence of two thirds of the members of the senate present." m^r king. it will be necessary to look out for securities for some other rights, if this principle be established; he moved to extend the motion--"to all present rights of the u. states." adjourned. saturday september 8^{th} in convention the last report of the committee of eleven (see sep^r 4) was resumed. m^r king moved to strike out the "exception of treaties of peace" from the general clause requiring two thirds of the senate for making treaties. m^r wilson wished the requisition of two thirds to be struck out altogether. if the majority cannot be trusted, it was a proof, as observed by m^r ghorum, that we were not fit for one society. a reconsideration of the whole clause was agreed to. m^r gov^r morris was ag^{st} striking out the "exception of treaties of peace." if two thirds of the senate should be required for peace, the legislature will be unwilling to make war for that reason, on account of the fisheries or the mississippi, the two great objects of the union. besides, if a majority of the senate be for peace, and are not allowed to make it, they will be apt to effect their purpose in the more disagreeable mode, of negativing the supplies for the war. m^r williamson remarked that treaties are to be made in the branch of the gov^t where there may be a majority of the states without a majority of the people. eight men may be a majority of a quorum, & should not have the power to decide the conditions of peace. there would be no danger, that the exposed states, as s. carolina or georgia, would urge an improper war for the western territory. m^r wilson. if two thirds are necessary to make peace, the minority may perpetuate war, against the sense of the majority. m^r gerry enlarged on the danger of putting the essential rights of the union in the hands of so small a number as a majority of the senate, representing perhaps, not one fifth of the people. the senate will be corrupted by foreign influence. m^r sherman was ag^{st} leaving the rights established by the treaty of peace, to the senate, & moved to annex a proviso that no such rights sh^d be ceded without the sanction of the legislature. m^r gov^r morris seconded the ideas of m^r sherman. m^r madison observed that it had been too easy in the present congress, to make treaties altho' nine states were required for the purpose. on the question for striking "except treaties of peace" n. h. ay. mass. ay. c^t ay. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r wilson & m^r dayton move to strike out the clause requiring two thirds of the senate for making treaties; on which, n. h. no. mas. no. c^t div^d. n. j. no. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r rutlidge & m^r gerry moved that "no treaty be made without the consent of 2/3 of all the members of the senate"--according to the example in the present cong^s. m^r ghorum. there is a difference in the case, as the president's consent will also be necessary in the new gov^t. on the question n. h. no. mass. no. (m^r gerry ay.) c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. m^r sherman mov^d that no treaty be made without a majority of the whole number of the senate. m^r gerry seconded him. m^r williamson. this will be less security than 2/3 as now required. m^r sherman. it will be less embarrassing. on the question, it passed in the negative. n. h. no. mass. ay. c^t ay. n. j. no. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. m^r madison moved that a quorum of the senate consist of 2/3 of all the members. m^r gov^r morris--this will put it in the power of one man to break up a quorum. m^r madison. this may happen to any quorum. on the question it passed in the negative. n. h. no. mass. no. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r williamson & m^r gerry mov^d "that no treaty sh^d be made with^t previous notice to the members, & a reasonable time for their attending." on the question all the states no; except n. c. s. c. & geo. ay. on a question on clause of the report of the com^e of eleven relating to treaties by 2/3 of the senate. all the states were ay.--except p^a n. j. & geo. no. m^r gerry mov^d that "no officer be app^d but to offices created by the constitution or by law."--this was rejected as unnecessary by six no's & five ays: the ayes. mass. c^t n. j. n. c. geo.--noes. n. h. p^a del. m^d v^a s. c. the clause referring to the senate, the trial of impeachments ag^{st} the president, for treason & bribery, was taken up. col. mason. why is the provision restrained to treason & bribery only? treason as defined in the constitution will not reach many great and dangerous offences. hastings is not guilty of treason. attempts to subvert the constitution may not be treason as above defined. as bills of attainder which have saved the british constitution are forbidden, it is the more necessary to extend the power of impeachments. he mov^d to add, after "bribery" "or maladministration." m^r gerry seconded him. m^r madison. so vague a term will be equivalent to a tenure during pleasure of the senate. m^r gov^r morris, it will not be put in force & can do no harm. an election of every four years will prevent maladministration. col. mason withdrew "maladministration" & substitutes "other high crimes & misdemesnors ag^{st} the state." on the question thus altered n. h. ay. mass. ay. c^t ay. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay.[62] geo. ay. [62] in the printed journal, s. carolina, no.--madison's note. m^r madison objected to a trial of the president by the senate, especially as he was to be impeached by the other branch of the legislature, and for any act which might be called a misdemesnor. the president under these circumstances was made improperly dependent. he would prefer the supreme court for the trial of impeachments, or rather a tribunal of which that should form a part. m^r gov^r morris thought no other tribunal than the senate could be trusted. the supreme court were too few in number and might be warped or corrupted. he was ag^{st} a dependence of the executive on the legislature, considering the legislative tyranny the great danger to be apprehended; but there could be no danger that the senate would say untruly on their oaths that the president was guilty of crimes or facts, especially as in four years he can be turned out. m^r pinkney disapproved of making the senate the court of impeachments, as rendering the president too dependent on the legislature. if he opposes a favorite law, the two houses will combine ag^{st} him, and under the influence of heat and faction throw him out of office. m^r williamson thought there was more danger of too much lenity than of too much rigour towards the president, considering the number of cases in which the senate was associated with the president. m^r sherman regarded the supreme court as improper to try the president, because the judges would be appointed by him. on motion of m^r madison to strike out the words--"by the senate" after the word "conviction" n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. in the amendment of col: mason just agreed to, the word "state" after the words "misdemeanors against," was struck out, and the words "united states," inserted unanimously, in order to remove ambiguity. on the question to agree to clause as amended, n. h. ay. mas. ay. cont. ay. n. j. ay. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. on motion "the vice-president and other civil officers of the u. s. shall be removed from office on impeachment and conviction as aforesaid" was added to the clause on the subject of impeachments. the clause of the report made on the 5^{th} sep^r & postponed was taken up to wit--"all bills for raising revenue shall originate in the house of representatives; and shall be subject to alterations and amendments by the senate. no money shall be drawn from the treasury but in consequence of appropriations made by law." it was moved to strike out the words "and shall be subject to alterations and amendments by the senate" and insert the words used in the constitution of massachusetts on the same subject--"but the senate may propose or concur with amendments as in other bills" which was agreed too nem: con: on the question on the first part of the clause--"all bills for raising revenue shall originate in the house of representatives"[63] [63] this was a conciliatory vote, the effect of the compromise formerly alluded to. see note wednesday sep^r 5.--madison's note. n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gov^r morris moved to add to clause (3) of the report made on sep^r 4. the words "and every member shall be on oath" which being agreed to, and a question taken on the clause so amended viz--"the senate of the u. s. shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present; and every member shall be on oath" n. h. ay. mas. ay. c^t ay. n. j. ay. p^a no. del.--ay. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay. m^r gerry repeated his motion above made on this day, in the form following: "the legislature shall have the sole right of establishing offices not heretofore provided for" which was again negatived: mas. con^t & geo. only being ay. m^r m^chenry observed that the president had not yet been any where authorized to convene the senate, and moved to amend art x. sect. 2. by striking out the words "he may convene them (the legislature) on extraordinary occasions," & insert, "he may convene both or either of the houses on extraordinary occasions." this he added would also provide for the case of the senate being in session, at the time of convening the legislature. m^r wilson said he should vote ag^{st} the motion, because it implied that the senate might be in session, when the legislature was not, which he thought improper. on the question n. h. ay. mas. no. c^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. no. geo. ay. a committee was then appointed by ballot to revise the stile of and arrange the articles which had been agreed to by the house. the committee consisted of m^r johnson, m^r hamilton, m^r gov^r morris, m^r madison and m^r king. m^r williamson moved that, previous to this work of the committee the clause relating to the number of the house of representatives sh^d be reconsidered for the purpose of increasing the number. m^r madison 2^{ded} the motion. m^r sherman opposed it he thought the provision on that subject amply sufficient. col: hamilton expressed himself with great earnestness and anxiety in favor of the motion. he avowed himself a friend to a vigorous government, but would declare at the same time, that he held it essential that the popular branch of it should be on a broad foundation. he was seriously of opinion that the house of representatives was on so narrow a scale as to be really dangerous, and to warrant a jealousy in the people for their liberties. he remarked that the connection between the president & senate would tend to perpetuate him, by corrupt influence. it was the more necessary on this account that a numerous representation in the other branch of the legislature should be established. on the motion of m^r williamson to reconsider, it was negatived[64] n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. [64] this motion & vote are entered on the printed journal of the ensuing morning.--madison's note. adj^d. monday sep^r 10. 1787 in convention[65] [65] "there is said to be a disposition generally prevalent thro' this state to comply with y^e plan of y^e convention without much scrutiny, hervey, who has been in albemarle lately, says y^t nicholas is determined to support it however contrary it may be to his own opinions. i am persuaded that those who sacrifice solid and permanent advantages in this plan, to their idea of the transitory disposition of the people, will condemn themselves hereafter."--james mcclurg to madison, september 10, 1787.--mad. mss. m^r gerry moved to reconsider art xix. viz. "on the application of the legislatures of two thirds of the states in the union, for an amendment of this constitution, the legislature of the u. s. shall call a convention for that purpose," (see aug 6). this constitution he said is to be paramount to the state constitutions. it follows hence, from this article that two thirds of the states may obtain a convention, a majority of which can bind the union to innovations that may subvert the state constitutions altogether. he asked whether this was a situation proper to be run into. m^r hamilton 2^{ded} the motion, but he said with a different view from m^r gerry. he did not object to the consequences stated by m^r gerry. there was no greater evil in subjecting the people of the u.s. to the major voice than the people of a particular state. it had been wished by many and was much to have been desired that an easier mode of introducing amendments had been provided by the articles of the confederation. it was equally desirable now that an easy mode should be established for supplying defects which will probably appear in the new system. the mode proposed was not adequate. the state legislatures will not apply for alterations but with a view to increase their own powers. the national legislature will be the first to perceive and will be most sensible to the necessity of amendments, and ought also to be empowered, whenever two thirds of each branch should concur to call a convention. there could be no danger in giving this power, as the people would finally decide in the case. m^r madison remarked on the vagueness of the terms, "call a convention for the purpose," as sufficient reason for reconsidering the article. how was a convention to be formed? by what rule decide? what the force of its acts? on the motion of m^r gerry to reconsider n. h. div^d. mas. ay. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r sherman moved to add to the article "or the legislature may propose amendments to the several states for their approbation, but no amendments shall be binding until consented to by the several states." m^r gerry 2^{ded} the motion. m^r wilson moved to insert, "two thirds of" before the words "several states"--on which amendment to the motion of m^r sherman n. h. ay. mas. no. c^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. m^r wilson then moved to insert "three fourths of" before "the several sts." which was agreed to nem: con: m^r madison moved to postpone the consideration of the amended proposition in order to take up the following, "the legislature of the u. s. whenever two thirds of both houses shall deem necessary, or on the application of two thirds of the legislatures of the several states, shall propose amendments to this constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the legislatures of the several states, or by conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the legislature of the u.s:" m^r hamilton 2^{ded} the motion. m^r rutlidge said he never could agree to give a power by which the articles relating to slaves might be altered by the states not interested in that property and prejudiced against it. in order to obviate this objection, these words were added to the proposition:[66] "provided that no amendments which may be made prior to the year 1808 shall in any manner affect the 4 & 5 sections of the vii article."--the postponement being agreed to, [66] the printed journal makes the succeeding proviso as to sections 4 & 5, of the art: vii moved by m^r rutlidge, part of the proposition of m^r madison.--madison's note. on the question on the proposition of m^r madison & m^r hamilton as amended n. h. div^d. mas. ay. c^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gerry moved to reconsider art: xxi and xxii. from the latter of which "for the approbation of cong^s" had been struck out. he objected to proceeding to change the government without the approbation of congress, as being improper and giving just umbrage to that body: he repeated his objections also to an annulment of the confederation with so little scruple or formality. m^r hamilton concurred with m^r gerry as to the indecorum of not requiring the approbation of congress. he considered this as a necessary ingredient in the transaction. he thought it wrong also to allow nine states as provided by art xxi. to institute a new government on the ruins of the existing one. he w^d propose as a better modification of the two articles (xxi & xxii) that the plan should be sent to congress in order that the same if approved by them, may be communicated to the state legislatures, to the end that they may refer it to state conventions; each legislature declaring that if the convention of the state should think the plan ought to take effect among nine ratifying states, the same sh^d take effect accordingly. m^r gorham. some states will say that nine states shall be sufficient to establish the plan, others will require unanimity for the purpose. and the different and conditional ratifications will defeat the plan altogether. m^r hamilton. no convention convinced of the necessity of the plan will refuse to give it effect on the adoption by nine states. he thought this mode less exceptionable than the one proposed in the article, while it would attain the same end. m^r fitzimmons remarked that the words "for their approbation" had been struck out in order to save congress from the necessity of an act inconsistent with the articles of confederation under which they held their authority. m^r randolph declared, if no change should be made in this part of the plan, he should be obliged to dissent from the whole of it. he had from the beginning he said been convinced that radical changes in the system of the union were necessary. under this conviction he had brought forward a set of republican propositions as the basis and outline of a reform. these republican propositions had however, much to his regret, been widely, and, in his opinion, irreconcileably departed from. in this state of things it was his idea and he accordingly meant to propose, that the state conventions sh^d be at liberty to offer amendments to the plan; and that these should be submitted to a second general convention, with full power to settle the constitution finally. he did not expect to succeed in this proposition, but the discharge of his duty in making the attempt, would give quiet to his own mind. m^r wilson was against a reconsideration for any of the purposes which had been mentioned. m^r king thought it would be more respectful to congress to submit the plan generally to them; than in such a form as expressly and necessarily to require their approbation or disapprobation. the assent of nine states he considered as sufficient; and that it was more proper to make this a part of the constitution itself, than to provide for it by a supplemental or distinct recommendation. m^r gerry urged the indecency and pernicious tendency of dissolving in so slight a manner, the solemn obligations of the articles of confederation. if nine out of thirteen can dissolve the compact. six out of nine will be just as able to dissolve the new one hereafter. m^r sherman was in favor of m^r king's idea of submitting the plan generally to congress. he thought nine states ought to be made sufficient: but that it would be best to make it a separate act and in some such form as that intimated by col: hamilton, than to make it a particular article of the constitution. on the question for reconsidering the two articles, xxi & xxii- n. h. div^d. mas. no. c^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. m^r hamilton then moved to postpone art xxi in order to take up the following, containing the ideas he had above expressed, viz resolved that the foregoing plan of a constitution be transmitted to the u. s. in congress assembled, in order that if the same shall be agreed to by them, it may be communicated to the legislatures of the several states, to the end that they may provide for its final ratification by referring the same to the consideration of a convention of deputies in each state to be chosen by the people thereof, and that it be recommended to the said legislatures in their respective acts for organizing such convention to declare, that if the said convention shall approve of the said constitution, such approbation shall be binding and conclusive upon the state, and further that if the said convention should be of opinion that the same upon the assent of any nine states thereto, ought to take effect between the states so assenting, such opinion shall thereupon be also binding upon such a state, and the said constitution shall take effect between the states assenting thereto. m^r gerry 2^{ded} the motion. m^r wilson. this motion being seconded, it is necessary now to speak freely. he expressed in strong terms his disapprobation of the expedient proposed, particularly the suspending the plan of the convention on the approbation of congress. he declared it to be worse than folly to rely on the concurrence of the rhode island members of cong^s in the plan. maryland has voted on this floor; for requiring the unanimous assent of the 13 states to the proposed change in the federal system. n. york has not been represented for a long time past in the convention. many individual deputies from other states have spoken much against the plan. under these circumstances can it be safe to make the assent of congress necessary. after spending four or five months in the laborious & arduous task of forming a government for our country, we are ourselves at the close throwing insuperable obstacles in the way of its success. m^r clymer thought that the mode proposed by m^r hamilton would fetter & embarrass cong^s as much as the original one, since it equally involved a breach of the articles of confederation. m^r king concurred with m^r clymer. if congress can accede to one mode, they can to the other. if the approbation of congress be made necessary, and they should not approve, the state legislatures will not propose the plan to conventions; or if the states themselves are to provide that nine states shall suffice to establish the system, that provision will be omitted, every thing will go into confusion, and all our labor be lost. m^r rutlidge viewed the matter in the same light with m^r king. on the question to postpone in order to take up col: hamilton's motion n. h. no. mas. no. c^t ay. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. a question being then taken on the article xxi. it was agreed to unanimously. col: hamilton withdrew the remainder of the motion to postpone art. xxii, observing that his purpose was defeated by the vote just given. m^r williamson & m^r gerry moved to re-instate the words "for the approbation of congress" in art: xxii. which was disagreed to nem: con: m^r randolph took this opportunity to state his objections to the system. they turned on the senate's being made the court of impeachment for trying the executive--on the necessity of 3/4 instead of 2/3 of each house to overrule the negative of the president--on the smallness of the number of the representative branch,--on the want of limitation to a standing army--on the general clause concerning necessary and proper laws--on the want of some particular restraint on navigation acts--on the power to lay duties on exports--on the authority of the general legislature to interpose on the application of the _executives_ of the states--on the want of a more definite boundary between the general & state legislatures--and between the general and state judiciaries--on the unqualified power of the president to pardon treasons--on the want of some limit to the power of the legislature in regulating their own compensations. with these difficulties in his mind, what course he asked was he to pursue? was he to promote the establishment of a plan which he verily believed would end in tyranny? he was unwilling he said to impede the wishes and judgment of the convention, but he must keep himself free, in case he should be honored with a seat in the convention of his state, to act according to the dictates of his judgment. the only mode in which his embarrassments could be removed, was that of submitting the plan to cong^s to go from them to the state legislatures, and from these to state conventions having power to adopt reject or amend; the process to close with another general convention with full power to adopt or reject the alterations proposed by the state conventions, and to establish finally the government. he accordingly proposed a resolution to this effect. doc^r franklin 2^{ded} the motion. col: mason urged & obtained that the motion should lie on the table for a day or two to see what steps might be taken with regard to the parts of the system objected to by m^r randolph. m^r pinkney moved "that it be an instruction to the committee for revising the stile and arrangement of the articles agreed on, to prepare an address to the people, to accompany the present constitution, and to be laid with the same before the u. states in congress." [67]the motion itself was referred to the committee nem: con: [67]m^r randolph moved to refer to the committee also a motion relating to pardons in cases of treason--which was agreed to nem: con: [67] these motions are not entered in the printed journal.--madison's note. adjourned. tuesday sep^r 11. 1787. in convention the report of the committee of stile & arrangement not being made & being waited for, the house adjourned. wednesday sep^r 12. 1787. in convention doc^r johnson from the committee of stile &c. reported a digest of the plan, of which printed copies were ordered to be furnished to the members. he also reported a letter to accompany the plan, to congress.[68] [68] a note by madison in the text says: "(here insert a transcript of the former from the annexed sheet as _printed_ and of the latter from the draft as finally agreed to,)" and his footnote says: "this is a literal copy of the printed report. the copy in the printed journal contains some of the alterations subsequently made in the house." no transcript of the report was, however, made by madison, but the printed copy is among his papers. it is a large folio of four pages printed on one side of each page, and is accurately reproduced here. madison's copy is marked by him: "as reported by com^e of revision, or stile and arrangement sep^r 12." the report is, in fact, correctly printed in the _journal of the federal convention_, 351, _et seq._, madison's statement to the contrary being an error. general bloomfield furnished brearley's copy to john quincy adams, and he printed it without the alterations and amendments which brearley had made. the extent of brearley's alterations and amendments may be seen in the copy printed in the _documentary history of the constitution_, i., 362, _et seq._ we, the people of the united states, in order to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america. article i. _sect._ 1. all legislative powers herein granted shall be vested in a congress of the united states, which shall consist of a senate and house of representatives. _sect._ 2. the house of representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. no person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the united states, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen. representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to servitude for a term of years, and excluding indians not taxed, three-fifths of all other persons. the actual enumeration shall be made within three years after the first meeting of the congress of the united states, and within every subsequent term of ten years, in such manner as they shall by law direct. the number of representatives shall not exceed one for every forty thousand, but each state shall have at least one representative: and until such enumeration shall be made, the state of new-hampshire shall be entitled to chuse three, massachusetts eight, rhode-island and providence plantations one, connecticut five, new-york, six, new-jersey four, pennsylvania eight, delaware one, maryland six, virginia ten, north-carolina five, south-carolina five, and georgia three. when vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies. the house of representatives shall choose their speaker and other officers; and they shall have the sole power of impeachment. _sect._ 3. the senate of the united states shall be composed of two senators from each state, chosen by the legislature thereof, for six years: and each senator shall have one vote. immediately after they shall be assembled in consequence of the first election, they shall be divided[69] as equally as may be into three classes. the seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year: and if vacancies 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. [69] the words, "by lot," were not in the report as printed; but were inserted in manuscript, as a typographical error, departing from the text of the report referred to the committee of style & arrangement.--marginal note by madison. no person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the united states, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen. the vice-president of the united states shall be, ex officio,[70] president of the senate, but shall have no vote, unless they be equally divided. [70] ex officio struck out in madison's copy. the senate shall choose their other officers, and also a president pro tempore, in the absence of the vice-president, or when he shall exercise the office of president of the united states. the senate shall have the sole power to try all impeachments. when sitting for that purpose, they shall be on oath. when the president of the united states is tried, the chief justice shall preside: and no person shall be convicted without the concurrence of two-thirds of the members present. judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the united states: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. _sect._ 4. 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. the congress shall assemble at least once in every year, and such meeting shall be on the first monday in december, unless they shall by law appoint a different day. _sect._ 5. each house shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business: but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide. each house may determine the rules of its proceedings; punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member. each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one-fifth of those present, be entered on the journal. neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. _sect._ 6. the senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the united states. they shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place. no senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the united states, which shall have been created, or the emoluments whereof shall have been encreased 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. _sect._ 7. the enacting stile of the laws shall be, "be it enacted by the senators and representatives in congress assembled." all bills for raising revenue shall originate in the house of representatives: but the senate may propose or concur with amendments as on other bills. every bill which shall have passed the house of representatives and the senate, shall, before it become a law, be presented to the president of the united states. if he approve he shall sign it, but if not he shall return it, with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. if after such reconsideration two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law. but in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. if any bill shall not be returned by the president within ten days (sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the congress by their adjournment prevent its return, in which case it shall not be a law. every order, resolution, or vote to which the concurrence of the senate and house of representatives may be necessary (except on a question of adjournment) shall be presented to the president of the united states; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by[71] three-fourths[72] of the senate and house of representatives, according to the rules and limitations prescribed in the case of a bill. [71] in the entry of this report in the printed journal "two-thirds" are substituted for "three-fourths." this change was made after the report was received.--madison's note. this is a mistake. the printed journal has it "three fourths." [72] a marginal note says "two thirds." _sect._ 8. the congress may by joint ballot appoint a treasurer. they shall have power to lay and collect taxes, duties, imposts and excises; to pay the debts and provide for the common defence and general welfare of the united states.[73] [73] "but all duties imposts & excises shall be uniform throughout the u. states," interlined by madison. to borrow money on the credit of the united states. to regulate commerce with foreign nations, among the several states, and with the indian tribes. to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the united states. to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. to provide for the punishment of counterfeiting the securities and current coin of the united states. to establish post offices and post roads. to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. to constitute tribunals inferior to the supreme court. to define and punish piracies and felonies committed on the high seas, and[74] offences against the law of nations. [74] (punish) a typographical omission.--madison's note. to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. to raise and support armies: but no appropriations of money to that use shall be for a longer term than two years. to provide and maintain a navy. to make rules for the government and regulation of the land and naval forces. to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions. to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the united states, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress. 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 legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings--and 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. _sect._ 9. the migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. no bill of attainder shall be passed, nor any ex post facto law. no capitation tax shall be laid, unless in proportion to the census herein before directed to be taken.[75] [75] "no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another--nor shall vessels bound to or from one state be obliged to enter, clear or pay duties in another," interlined by madison. no tax or duty shall be laid on articles exported from any state. no money shall be drawn from the treasury, but in consequence of appropriations made by law. no title of nobility shall be granted by the united states. and no person holding any office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. _sect._ 10. no state shall coin money, nor emit bills of credit, nor make anything but gold or silver coin a tender in payment of debts, nor pass any bill of attainder, nor ex post facto laws, nor laws altering or impairing the obligation of contracts; nor grant letters of marque and reprisal, nor enter into any treaty, alliance, or confederation, nor grant any title of nobility. no state shall, without the consent of congress, lay imposts or duties on imports or exports, nor with such consent, but to the use of the treasury of the united states.[76][77] nor keep troops nor ships of war in time of peace, nor enter into any agreement or compact with another state, nor with any foreign power. nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so iminent, as not to admit of delay until the congress can be consulted. [76] provided that no state shall be restrained from imposing the usual duties on produce exported from such state for the sole purpose of defraying the charges of inspecting packing storing & indemnifying the losses on such produce while in the custody of public officers. but all such regulations shall in case of abuse be subject to the revision & controul of congress.--marginal note by madison. [77] "no state shall without the consent of congress," interlined by madison. ii. _sect._ 1. the executive power shall be vested in a president of the united states of america. he shall hold his office during the term of four years, and, altogether with the vice-president, chosen for the same term, be elected in the following manner: each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in congress: but no senator or representative shall be appointed an elector, nor any person holding an office of trust or profit under the united states. the electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. and they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the general government, directed to the president of the senate. the president of the senate shall in the presence of the senate and house of representatives open all the certificates, and the votes shall then be counted. the person having the greatest number of votes shall be the president, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the house of representatives shall immediately chuse by ballot one of them for president; and if no person have a majority, then from the five highest on the list the said house shall in like manner choose the president. but in choosing the president, the votes shall be taken by states and not per capita,[78] the representation from each state having one vote. a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. in every case, after the choice of the president by the representatives,[79] the person having the greatest number of votes of the electors shall be the vice-president. but if there should remain two or more who have equal votes, the senate shall choose from them by ballot the vice-president. [78] "and not per capita" struck out by madison. [79] "by the representatives" struck out by madison. the congress may determine the time of chusing the electors, and the time in[80] which they shall give their votes; but the election shall be on the same day[81] throughout the united states. [80] the words "day on" substituted by madison. [81] "but the election shall be on the same day" struck out & "which day shall be the same" inserted by madison. no person except a natural born citizen, or a citizen of the united states, at the time of the adoption of this constitution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the united states. in case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice-president, and the congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice-president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or the period for chusing another president arrive.[82] [82] "the period for chusing another president arrive" struck out and "a president be chosen" inserted by madison. the president shall, at stated times, receive a fixed compensation for his services, which shall neither be encreased nor diminished during the period for which he shall have been elected. before he enter on the execution of his office, he shall take the following oath or affirmation: "i ----, do solemnly swear (or affirm) that i will faithfully execute the office of president of the united states, and will to the best of my judgment and power, preserve, protect and defend the constitution of the united states." _sect._ 2. the president shall be commander in chief of the army and navy of the united states, and of the militia of the several states: he 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 offices, when called into the actual service of the united states,[83] and he shall have power to grant reprieves and pardons for offences against the united states, except in cases of impeachment. [83] it so appears in the printed copy, but the clause "when called into the actual service of the united states" was intended to follow immediately after "militia of the several states." he shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the united states, whose appointments are not herein otherwise provided for. the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session. _sect._ 3. he shall from time to time give to the congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient: he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper: he shall receive ambassadors and other public ministers: he shall take care that the laws be faithfully executed, and shall commission all the officers of the united states. _sect._ 4. the president, vice-president and all civil officers of the united states, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors. iii. _sect._ 1. the judicial power of the united states, both in law and equity, shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. _sect._ 2. the judicial power shall extend to all cases, both in law and equity, arising under this constitution, the laws of the united states, and treaties made, or which shall be made, under their authority. to all cases affecting ambassadors, other public ministers and consuls. to all cases of admiralty and maritime jurisdiction. to controversies to which the united states shall be a party. to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. in cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. in all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make. the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed. _sect._ 3. treason against the united states, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. the congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood nor forfeiture, except during the life of the person attainted. iv. _sect._ 1. full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. and the congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. _sect._ 2. the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. a person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled be delivered up, and removed to the state having jurisdiction of the crime. no person legally held to service or labour in one state, escaping into another, shall in consequence of regulations subsisting therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due. _sect._ 3. new states may be admitted by the congress into this 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. the congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states: and nothing in this constitution shall be so construed as to prejudice any claims of the united states, or of any particular state. _sect._ 4. the united states shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature or executive, against domestic violence. v. the congress, whenever two-thirds of both houses shall deem necessary, or on the application of two-thirds[84] of the legislatures[85] of the several states, shall propose amendments to this constitution, which shall be valid to all intents and purposes, as part thereof, when the same shall have been ratified by three-fourths at least of[86] the legislatures[87] of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the congress: provided, that no amendment which may be made prior to the year 1808 shall in any manner affect the ----[88] and[89] ---section[90] of[91] article. [84] "of two thirds" struck out by madison. [85] "of two-thirds" inserted by madison. [86] "three-fourths at least of" struck out by madison. [87] "of three-fourths" inserted by madison. [88] "1 & 4 clauses in the 9" inserted by madison. [89] "and" struck out by madison. [90] changed to "sections" by madison. [91] "the first" inserted by madison. vi. all debts contracted and engagements entered into before the adoption of this constitution shall be as valid against the united states under this constitution as under the confederation. 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 senators and representatives beforementioned, and the members of the several state legislatures, and all executive and judicial officers, both of the united states and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the united states. vii. the ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same. letter.[92] [92] the draft of the letter accompanied the draft of the constitution, but was not printed with it. the journal says (sept. 12): "the draft of a letter to congress being at the same time reported, was read once throughout; and afterwards agreed to by paragraphs." (_const. mss. and journal_, p. 367.) the draft is in the handwriting of gouverneur morris and was undoubtedly prepared by him. it was turned over to washington by jackson with the other papers of the convention. the draft of the constitution must have been among those papers he destroyed. probably it too was written by morris. the letter having been accepted september 12, was printed with the final constitution september 17. it does not appear to have caused debate. we have now the honor to submit to the consideration of the united states in congress assembled that constitution which has appeared to us the most advisable. the friends of our country have long seen and desired that the power of making war peace and treaties, that of levying money & regulating commerce and the correspondent executive and judicial authorities should be fully and effectually vested in the general government of the union. but the impropriety of delegating such extensive trust to one body of men is evident. hence results the necessity of a different organization. it is obviously impracticable in the foederal government of these states to secure all rights of independent sovereignty to each and yet provide for the interest and safety of all. individuals entering into society must give up a share of liberty to preserve the rest. the magnitude of the sacrifice must depend as well on situation and circumstances as on the object to be obtained. it is at all times difficult to draw with precision the line between those rights which must be surrendered and those which may be reserved. and on the present occasion this difficulty was increased by a difference among the several states as to their situation extent habits and particular interests. in all our deliberations on this subject we kept steadily in our view that which appears to us the greatest interest of every true american the consolidation of our union in which is involved our prosperity felicity safety perhaps our national existence. this important consideration seriously and deeply impressed on our minds led each state in the convention to be less rigid in points of inferior magnitude than might have been otherwise expected. and thus the constitution which we now present is the result of a spirit of amity and of that mutual deference & concession which the peculiarity of our political situation rendered indispensable. that it will meet the full and entire approbation of every state is not perhaps to be expected. but each will doubtless consider that had her interests been alone consulted the consequences might have been particularly disagreable or injurious to others. that it is liable to as few exceptions as could reasonably have been expected we hope and believe. that it may promote the lasting welfare of that country so dear to us all and secure her freedom and happiness is our most ardent wish-m^r williamson moved to reconsider the clause requiring three fourths of each house to overrule the negative of the president, in order to strike out 3/4 and insert 2/3. he had he remarked himself proposed 3/4 instead of 2/3, but he had since been convinced that the latter proportion was the best. the former puts too much in the power of the president. m^r sherman was of the same opinion; adding that the states would not like to see so small a minority and the president, prevailing over the general voice. in making laws regard should be had to the sense of the people, who are to be bound by them, and it was more probable that a single man should mistake or betray this sense than the legislature. m^r gov^r morris. considering the difference between the two proportions numerically, it amounts in one house to two members only; and in the others to not more than five; according to the numbers of which the legislature is at first to be composed. it is the interest moreover of the distant states to prefer 3/4 as they will be oftenest absent and need the interposing check of the president. the excess rather than the deficiency, of laws was to be dreaded. the example of n. york shews that 2/3 is not sufficient to answer the purpose. m^r hamilton added his testimony to the fact that 2/3 in n. york had been ineffectual either where a popular object, or a legislative faction operated; of which he mentioned some instances. m^r gerry. it is necessary to consider the danger on the other side also. 2/3 will be a considerable, perhaps a proper security. 3/4 puts too much in the power of a few men. the primary object of the revisionary check in the president is not to protect the general interest, but to defend his own department. if 3/4 be required, a few senators having hopes from the nomination of the president to offices, will combine with him and impede proper laws. making the vice-president speaker increases the danger. m^r williamson was less afraid of too few than of too many laws. he was most of all afraid that the repeal of bad laws might be rendered too difficult by requiring 3/4 to overcome the dissent of the president. col: mason had always considered this as one of the most exceptionable parts of the system. as to the numerical argument of m^r gov^r morris, little arithmetic was necessary to understand that 3/4 was more than 2/3, whatever the numbers of the legislature might be. the example of new york depended on the real merits of the laws. the gentlemen citing it, had no doubt given their own opinions. but perhaps there were others of opposite opinions who could equally paint the abuses on the other side. his leading view was to guard against too great an impediment to the repeal of laws. m^r gov^r morris dwelt on the danger to the public interest from the instability of laws, as the most to be guarded against. on the other side there could be little danger. if one man in office will not consent where he ought, every fourth year another can be substituted. this term was not too long for fair experiments. many good laws are not tried long enough to prove their merit. this is often the case with new laws opposed to old habits. the inspection laws of virginia & maryland to which all are now so much attached were unpopular at first. m^r pinkney was warmly in opposition to 3/4 as putting a dangerous power in the hands of a few senators headed by the president. m^r madison. when 3/4 was agreed to, the president was to be elected by the legislature and for seven years. he is now to be elected by the people and for four years. the object of the revisionary power is two fold. 1. to defend the executive rights 2. to prevent popular or factious injustice. it was an important principle in this & in the state constitutions to check legislative injustice and encroachments. the experience of the states had demonstrated that their checks are insufficient. we must compare the danger from the weakness of 2/3 with the danger from the strength of 3/4. he thought on the whole the former was the greater. as to the difficulty of repeals it was probable that in doubtful cases the policy would soon take place of limiting the duration of laws so as to require renewal instead of repeal. the reconsideration being agreed to. on the question to insert 2/3 in place of 3/4. n. h. div^d. mas. no. c^t ay. n. j. ay. p^a no. del. no. m^d ay. m^r mchenry no. v^a no. gen^l washington m^r blair, m^r madison no. col. mason, m^r randolph ay. n. c. ay. s. c. ay. geo. ay. m^r williamson, observed to the house that no provision was yet made for juries in civil cases and suggested the necessity of it. m^r gorham. it is not possible to discriminate equity cases from those in which juries are proper. the representatives of the people may be safely trusted in this matter. m^r gerry urged the necessity of juries to guard ag^{st} corrupt judges. he proposed that the committee last appointed should be directed to provide a clause for securing the trial by juries. col: mason perceived the difficulty mentioned by m^r gorham. the jury cases cannot be specified. a general principle laid down on this and some other points would be sufficient. he wished the plan had been prefaced with a bill of rights, & would second a motion if made for the purpose. it would give great quiet to the people; and with the aid of the state declarations, a bill might be prepared in a few hours. m^r gerry concurred in the idea & moved for a committee to prepare a bill of rights. col: mason 2^{ded} the motion. m^r sherman, was for securing the rights of the people where requisite. the state declarations of rights are not repealed by this constitution; and being in force are sufficient. there are many cases where juries are proper which cannot be discriminated. the legislature may be safely trusted. col: mason. the laws of the u. s. are to be paramount to state bills of rights. on the question for a com^e to prepare a bill of rights n. h. no. mas. abs^t. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. the clause relating to exports being reconsidered, at the instance of col: mason, who urged that the restriction on the states would prevent the incidental duties necessary for the inspection & safekeeping of their produce, and be ruinous to the staple states, as he called the five southern states, he moved as follows--"provided nothing herein contained shall be construed to restrain any state from laying duties upon exports for the sole purpose of defraying the charges of inspecting, packing, storing and indemnifying the losses in keeping the commodities in the care of public officers, before exportation." in answer to a remark which he anticipated, to wit, that the states could provide for these expences, by a tax in some other way, he stated the inconveniency of requiring the planters to pay a tax before the actual delivery for exportation. m^r madison 2^{ded} the motion. it would at least be harmless; and might have the good effect of restraining the states to bona fide duties for the purpose, as well as of authorizing explicitly such duties; tho' perhaps the best guard against an abuse of the power of the states on this subject, was the right in the gen^l government to regulate trade between state & state. m^r gov^r morris saw no objection to the motion. he did not consider the dollar per hhd laid on tob^o in virg^a as a duty on exportation, as no drawback would be allowed on tob^o taken out of the warehouse for internal consumption. m^r dayton was afraid the proviso w^d enable pennsylv^a to tax n. jersey under the idea of inspection duties of which pen^a would judge. m^r gorham & m^r langdon, thought there would be no security if the proviso sh^d be agreed to, for the states exporting thro' other states, ag^{st} these oppressions of the latter. how was redress to be obtained in case duties should be laid beyond the purpose expressed? m^r madison. there will be the same security as in other cases. the jurisdiction of the supreme court must be the source of redress. so far only had provision been made by the plan ag^{st} injurious acts of the states. his own opinion was, that this was sufficient. a negative on the state laws alone could meet all the shapes which these could assume. but this had been overruled. m^r fitzimmons. incidental duties on tob^o & flour never have been & never can be considered as duties on exports. m^r dickinson. nothing will save the states in the situation of n. hampshire n. jersey delaware &c. from being oppressed by their neighbors, but requiring the assent of cong^s to inspection duties. he moved that this assent sh^d accordingly be required. m^r butler 2^{ded} the motion. adjourned. thursday sep^r 13. 1787. in convention col. mason.[93] he had moved without success for a power to make sumptuary regulations. he had not yet lost sight of his object. after descanting on the extravagance of our manners, the excessive consumption of foreign superfluities, and the necessity of restricting it, as well with oeconomical as republican views, he moved that a committee be appointed to report articles of association for encouraging by the advice the influence and the example of the members of the convention, oeconomy frugality and american manufactures. [93] the dissensions among the virginia delegates had leaked out, for joseph jones, fredericksburg, september 13, 1787, wrote to madison that a rumor of their disagreement was current in virginia.--chicago historical society mss. doc^r johnson 2^{ded} the motion which was without debate agreed to, nem: con: and a committee appointed, consisting of col: mason, doc^r franklin, m^r dickenson, doc^r johnson and m^r livingston.[94] [94] this motion, & appointment of the co[~m]ittee, not in the printed journal. no report was made by the com^e--madison's note. col: mason renewed his proposition of yesterday on the subject of inspection laws, with an additional clause giving to congress a controul over them in case of abuse--as follows: "provided that no state shall be restrained from imposing the usual duties on produce exported from such state, for the sole purpose of defraying the charges of inspecting, packing, storing, and indemnifying the losses on such produce, while in the custody of public officers: but all such regulations shall in case of abuse, be subject to the revision and controul of congress." there was no debate & on the question n. h. ay. mas. ay. c^t ay. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. the report from the committee of stile & arrangement, was taken up, in order to be compared with the articles of the plan as agreed to by the house & referred to the committee, and to receive the final corrections and sanction of the convention. art: 1, sect. 2. on motion of m^r randolph the word "servitude" was struck out, and "service" unanimously[95] inserted, the former being thought to express the condition of slaves, & the latter the obligations of free persons. [95] see page 372 of the printed journal.--madison's note. m^r dickenson & m^r wilson moved to strike out, "and direct taxes," from sect. 2, art. 1, as improperly placed in a clause relating merely to the constitution of the house of representatives. m^r gov^r morris. the insertion here was in consequence of what had passed on this point; in order to exclude the appearance of counting the negroes in _the representation_. the including of them may now be referred to the object of direct taxes, and incidentally only to that of representation. on the motion to strike out "and direct taxes" from this place n. h. no. mas. no. c^t no. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. art. 1, sect. 7.--"if any bill shall not be returned by the president within ten days (sundays excepted) after it shall have been presented to him &c." m^r madison moved to insert between "after" and "it" in sect. 7, art. 1 the words "the day on which," in order to prevent a question whether the day on which the bill be presented ought to be counted or not as one of the ten days. m^r randolph 2^{ded} the motion. m^r governe^r morris. the amendment is unnecessary. the law knows no fractions of days. a number of members being very impatient & calling for the question n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. no.-doc^r johnson made a further report from the committee of stile &c. of the following resolutions to be substituted for 22 & 23 articles. "resolved that the preceding constitution be laid before the u. states in congress assembled, and that it is the opinion of this convention, that it should afterwards be submitted to a convention of delegates chosen in each state by the people thereof, under the recommendation of its legislature, for their assent & ratification; & that each convention assenting & ratifying the same should give notice thereof to the u. s. in cong^s assembled. "resolved that it is the opinion of this convention that as soon as the conventions of nine states, shall have ratified this constitution, the u. s. in cong^s assembled should fix a day on which electors should be appointed by the states which shall have ratified the same; and a day on which the electors should assemble to vote for the president; and the time and place for commencing proceedings under this constitution--that after such publication the electors should be appointed, and the senators and representatives elected: that the electors should meet on the day fixed for the election of the president, and should transmit their votes certified signed, sealed and directed, as the constitution requires, to the secretary of the u. states in cong^s assembled: that the senators and representatives should convene at the time & place assigned: that the senators should appoint a president for the sole purpose of receiving, opening, and counting the votes for president, and that after he shall be chosen, the congress, together with the president should without delay proceed to execute this constitution." adjourned. friday sep^r 14^{th}. 1787. in convention the report of the committee of stile & arrangement being resumed, m^r williamson moved to reconsider in order to increase the number of representatives fixed for the first legislature. his purpose was to make an addition of one half generally to the number allotted to the respective states; and to allow two to the smallest states. on this motion n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. art. i. sect. 3. the words "by lot"[96] were struck out nem: con: on motion of m^r madison, that some rule might prevail in the rotation that would prevent both the members from the same state from going out at the same time. [96] "by lot" had been reinstated from the report of five aug. 6. as a correction of the printed report by the com^e of stile & arrangement.--madison's note. "ex officio" struck out of the same section as superfluous; nem: con; and "or affirmation" after "oath" inserted also unanimously. m^r rutlidge and m^r gov^r morris moved "that persons impeached be suspended from their office until they be tried and acquitted." m^r madison. the president is made too dependent already on the legislature by the power of one branch to try him in consequence of an impeachment by the other. this intermediate suspension, will put him in the power of one branch only. they can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing magistrate. m^r king concurred in the opposition to the amendment. on the question to agree to it n. h. no. mas. no. c^t ay. n. j. no. p^a no. del.no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. art. i. sect. 4. "except as to the places of choosing senators" was added nem: con: to the end of the first clause, in order to exempt the seats of gov^t in the states from the power of congress. art. i. sect. 5. "each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy." col: mason & m^r gerry moved to insert after the word "parts," the words "of the proceedings of the senate" so as to require publication of all the proceedings of the house of representatives. it was intimated on the other side that cases might arise where secrecy might be necessary in both houses. measures preparatory to a declaration of war in which the house of rep^s was to concur, were instanced. on the question, it passed in the negative. n. h. no. (rh. i. abs.) mas. no. con: no,(n. y. abs.) n. j. no. pen. ay. del. no. mary. ay. virg. no. n. c. ay. s. c. div^d. geor. no. m^r baldwin observed that the clause, art. i. sect. 6. declaring that no member of cong^s "during the time for which he was elected, shall be appointed to any civil office under the authority of the u. s. which shall have been created, or the emoluments whereof shall have been increased during such time," would not extend to offices _created by the constitution_; and the salaries of which would be created, _not increased_ by cong^s at their first session. the members of the first cong^s consequently might evade the disqualification in this instance.--he was neither seconded nor opposed; nor did any thing further pass on the subject. art. i. sect. 8. the congress "may by joint ballot appoint a treasurer" m^r rutlidge moved to strike out this power, and let the treasurer be appointed in the same manner with other officers. m^r gorham & m^r king said that the motion, if agreed to, would have a mischievous tendency. the people are accustomed & attached to that mode of appointing treasurers, and the innovation will multiply objections to the system. m^r gov^r morris remarked that if the treasurer be not appointed by the legislature, he will be more narrowly watched, and more readily impeached. m^r sherman. as the two houses appropriate money, it is best for them to appoint the officer who is to keep it; and to appoint him as they make the appropriation, not by joint but several votes. gen^l pinkney. the treasurer is appointed by joint ballot in south carolina. the consequence is that bad appointments are made, and the legislature will not listen to the faults of their own officer. on the motion to strike out n. h. ay. mas. no. c^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay. art i sect. 8. "but all such duties imposts & excises, shall be uniform throughout the u. s." were unanimously annexed to the power of taxation. to define & punish piracies and felonies on the high seas, and "punish" offences against the law of nations. m^r gov^r morris moved to strike out "punish" before the words "offences ag^{st} the law of nations," so as to let these be _definable_ as well as punishable, by virtue of the preceding member of the sentence. m^r wilson hoped the alteration would by no means be made. to pretend to _define_ the law of nations which depended on the authority of all the civilized nations of the world, would have a look of arrogance, that would make us ridiculous. m^r gov^r morris. the word _define_ is proper when applied to _offences_ in this case; the law of nations being often too vague and deficient to be a rule. on the question to strike out the word "punish" it passed in the affirmative n. h. ay. mas. no. c^t ay. n. j. ay. p^a no. del. ay. m^d no. v^a no. n. c. ay. s. c. ay. geo. no. doc^r franklin moved[97] to add after the words "post roads" art. i. sect. 8. "a power to provide for cutting canals where deemed necessary." [97] this motion by d^r franklin not stated in the printed journal, as are some other motions.--madison's note. wilson 2^{ded} the motion. m^r sherman objected. the expence in such cases will fall on the u. states, and the benefit accrue to the places where the canals may be cut. m^r wilson. instead of being an expence to the u. s. they may be made a source of revenue. m^r madison suggested an enlargement of the motion into a power "to grant charters of incorporation where the interest of the u. s. might require & the legislative provisions of individual states may be incompetent." his primary object was however to secure an easy communication between the states which the free intercourse now to be opened, seemed to call for. the political obstacles being removed, a removal of the natural ones as far as possible ought to follow. m^r randolph 2^{ded} the proposition. m^r king thought the power unnecessary. m^r wilson. it is necessary to prevent _a state_ from obstructing the _general_ welfare. m^r king. the states will be prejudiced and divided into parties by it. in philad^a & new york. it will be referred to the establishment of a bank, which has been a subject of contention in those cities. in other places it will be referred to mercantile monopolies. m^r wilson mentioned the importance of facilitating by canals, the communication with the western settlements. as to banks he did not think with m^r king that the power in that point of view would excite the prejudices & parties apprehended. as to mercantile monopolies they are already included in the power to regulate trade. col: mason was for limiting the power to the single case of canals. he was afraid of monopolies of every sort, which he did not think were by any means already implied by the constitution as supposed by m^r wilson. the motion being so modified as to admit a distinct question specifying & limited to the case of canals, n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. ay. the other part fell of course, as including the power rejected. m^r madison & m^r pinkney then moved to insert in the list of powers vested in congress a power--"to establish an university, in which no preferences or distinctions should be allowed on account of religion." m^r wilson supported the motion. m^r gov^r morris. it is not necessary. the exclusive power at the seat of government, will reach the object. on the question n. h. no. mas. no. con^t div^d. d^r johnson ay. m^r sherman no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. no. col: mason, being sensible that an absolute prohibition of standing armies in time of peace might be unsafe, and wishing at the same time to insert something pointing out and guarding against the danger of them, moved to preface the clause (art. 1 sect. 8) "to provide for organizing, arming and disciplining the militia &c." with the words "and that the liberties of the people may be better secured against the danger of standing armies in time of peace." m^r randolph 2^{ded} the motion. m^r madison was in favor of it. it did not restrain congress from establishing a military force in time of peace if found necessary; and as armies in time of peace are allowed on all hands to be an evil, it is well to discountenance them by the constitution, as far as will consist with the essential power of the gov^t on that head. m^r gov^r morris opposed the motion as setting a dishonorable mark of distinction on the military class of citizens. m^r pinkney & m^r bedford concurred in the opposition. on the question n. h. no. mas. no. c^t no. n. j. no. p^a no. mar^d no. v^a ay. n. c. no. s. c. no. geo. ay. col: mason moved to strike out from the clause (art. 1 sect 9.) "no bill of attainder nor any ex post facto law shall be passed" the words "nor any ex post facto law." he thought it not sufficiently clear that the prohibition meant by this phrase was limited to cases of a criminal nature, and no legislature ever did or can altogether avoid them in civil cases. m^r gerry 2^{ded} the motion but with a view to extend the prohibition to "civil cases," which he thought ought to be done. on the question; all the states were--no. m^r pinkney & m^r gerry, moved to insert a declaration "that the liberty of the press should be inviolably observed." m^r sherman. it is unnecessary. the power of congress does not extend to the press. on the question, it passed in the negative n. h.[98] no. mas. ay. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. no. s. c. ay. geo. no. [98] in the printed journal n. hampshire ay.--madison's note. art 1. sect. 9. "no capitation tax shall be laid, unless &c." m^r read moved to insert after "capitation" the words, "or other direct tax." he was afraid that some liberty might otherwise be taken to saddle the states, with a readjustment by this rule, of past requisitions of cong^s--and that his amendment by giving another cast to the meaning would take away the pretext. m^r williamson 2^{ded} the motion which was agreed to. on motion of col: mason "or enumeration" inserted after, as explanatory of "census" con. & s. c. only, no.[99] [99] the words "con. & s. c. only no" are in the handwriting of john c. payne, madison's brother-in-law. at the end of the clause "no tax or duty shall be laid on articles exported from any state" was added the following amendment conformably to a vote on the [31] of [august] viz--no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to or from one state, be obliged to enter, clear or pay duties in another. col. mason moved a clause requiring "that an account of the public expenditures should be annually published" m^r gerry 2^{ded} the motion, m^r gov^r morris urged that this w^d be impossible in many cases. m^r king remarked, that the term expenditures went to every minute shilling. this would be impracticable. cong^s might indeed make a monthly publication, but it would be in such general statements as would afford no satisfactory information. m^r madison proposed to strike out "annually" from the motion & insert "from time to time," which would enjoin the duty of frequent publications and leave enough to the discretion of the legislature. require too much and the difficulty will beget a habit of doing nothing. the articles of confederation require halfyearly publications on this subject. a punctual compliance being often impossible, the practice has ceased altogether. m^r wilson 2^{ded}. & supported the motion. many operations of finance cannot be properly published at certain times. m^r pinkney was in favor of the motion. m^r fitzimmons. it is absolutely impossible to publish expenditures in the full extent of the term. m^r sherman thought "from time to time" the best rule to be given. "annual" was struck out--& those words--inserted nem: con: the motion of col: mason so amended was then agreed to nem: con: and added after--"appropriations by law" as follows--"and a regular statement and account of the receipts & expenditures of all public money shall be published from time to time." the first clause of art. 1 sect. 10--was altered so as to read--"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 & silver coin a 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." m^r gerry entered into observations inculcating the importance of public faith, and the propriety of the restraint put on the states from impairing the obligation of contracts, alledging that congress ought to be laid under the like prohibitions, he made a motion to that effect. he was not 2^{ded}. adjourned. saturday sep^r 15^{th}. 1787. in convention m^r carrol reminded the house that no address to the people had yet been prepared. he considered it of great importance that such an one should accompany the constitution. the people had been accustomed to such on great occasions, and would expect it on this. he moved that a committee be appointed for the special purpose of preparing an address. m^r rutlidge objected on account of the delay it would produce and the impropriety of addressing the people before it was known whether congress would approve and support the plan. congress if an address be thought proper can prepare as good a one. the members of the convention can also explain the reasons of what has been done to their respective constituents. m^r sherman concurred in the opinion that an address was both unnecessary and improper. on the motion of m^r carrol n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c.[100] abs^t. s. c.[100] no. geo. no. [100] in the printed journal n. carolina no--s. carol: omitted.--madison's note. m^r langdon. some gentlemen have been very uneasy that no increase of the number of representatives has been admitted. it has in particular been thought that one more ought to be allowed to n. carolina. he was of opinion that an additional one was due both to that state and to rho: island, & moved to reconsider for that purpose. m^r sherman. when the committee of eleven reported the apportionment--five representatives were thought the proper share of n. carolina. subsequent information however seemed to entitle that state to another. on the motion to reconsider n. h. ay. mas. no. c^t ay. n. j. no. pen. div^d. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r langdon moved to add 1 member to each of the representations of n. carolina & rho: island.[101] [101] the ms. official journal says: "it was moved and seconded to"----and here finally ends, and the minutes for september 15 are crossed out (const. mss.). they are given in the printed journal, and a note says the journal for that day and monday was completed from minutes furnished by madison (p. 379). october 22, 1818, adams wrote to madison asking him to complete the journal. he replied from montpelier, november 2: "i have received your letter of 22 ult: and enclose such extracts from my notes relating to the two last days of the constitution, as may fill in the chasm in the journals, according to the mode in which the proceedings are recorded."--state dept. mss., miscl. letters. later (june 18, 1819) adams sent him lists of yeas and nays, and he replied (montpelier, june 27, 1819): "i return the list of yeas & nays in the convention, with the blanks filled in according to your request, as far as i could do it by tracing the order of the yeas & nays & their coincidency with those belonging to successive questions in my papers."--mad. mss. m^r king was ag^{st} any change whatever as opening the door for delays. there had been no official proof that the numbers of n. c. are greater than before estimated, and he never could sign the constitution if rho: island is to be allowed two members that is one fourth of the number allowed to massts., which will be known to be unjust. m^r pinkney urged the propriety of increasing the number of rep^s allotted to n. carolina. m^r bedford contended for an increase in favor of rho: island, and of delaware also it passed in the negative. on the question for allowing two rep^s to rho: island, it passed in the negative. n. h. ay. mas. no. c^t no. n. j. no. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. no. geo. ay. on the question for allowing six to n. carolina, it passed in the negative n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. art 1. sect. 10. (paragraph 2) "no state shall, without the consent of congress lay imposts or duties on imports or exports; nor with such consent, but to the use of the treasury of the u. states." in consequence of the proviso moved by col: mason; and agreed to on the 13 sep^r, this part of the section was laid aside in favor of the following substitute viz: "no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the nett produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the u. s.; and all such laws shall be subject to the revision and controul of the congress" on a motion to strike out the last part "and all such laws shall be subject to the revision and controul of the congress" it passed in the negative. n. h. no. mas. no. c^t no. n. j. no. p^a div^d. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. ay. the substitute was then agreed to; virg^a alone being in the negative. the remainder of the paragraph being under consideration--viz--"nor keep troops nor ships of war in time of peace, nor enter into any agreement or compact with another state, nor with any foreign power. nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent as not to admit of delay, until congress can be consulted." m^r m^chenry & m^r carrol moved that "no state shall be restrained from laying duties of tonnage for the purpose of clearing harbours and erecting lighthouses." col. mason in support of this explained and urged the situation of the chesapeak which peculiarly required expences of this sort. m^r gov^r morris. the states are not restrained from laying tonnage as the constitution now stands. the exception proposed will imply the contrary, and will put the states in a worse condition than the gentleman (col. mason) wishes. m^r madison. whether the states are now restrained from laying tonnage duties, depends on the extent of the power "to regulate commerce." these terms are vague, but seem to exclude this power of the states. they may certainly be restrained by treaty. he observed that there were other objects for tonnage duties as the support of seamen &c. he was more & more convinced that the regulation of commerce was in its nature indivisible and ought to be wholly under one authority. m^r sherman. the power of the u. states to regulate trade being supreme can controul interferences of the state regulations when such interferences happen; so that there is no danger to be apprehended from a concurrent jurisdiction. m^r langdon insisted that the regulation of tonnage was an essential part of the regulation of trade, and that the states ought to have nothing to do with it. on motion "that no state shall lay any duty on tonnage without the consent of congress." n. h. ay. mas. ay. c^t div^d. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. ay. geo. no. the remainder of the paragraph was then remoulded and passed as follows viz--"no state shall without the consent of congress, lay any duty of 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." art ii. sect. 1. (paragraph 6) "or the period for chusing another president arrive" were changed into "or a president shall be elected" conformably to a vote of the ---of ----. m^r rutlidge and doc^r franklin moved to annex to the end of paragraph 7. sect. 1. art ii--"and he (the president) shall not receive, within that period, any other emolument from the u. s. or any of them." on which question n. h. ay. mas. ay. c^t no. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. ay. geo.--ay. art: ii. sect. 2. "he shall have power to grant reprieves and pardons for offences against the u. s. &c." m^r randolph moved to except "cases of treason." the prerogative of pardon in these cases was too great a trust. the president may himself be guilty. the traitors may be his own instruments. col: mason supported the motion. m^r gov^r morris had rather there should be no pardon for treason, than let the power devolve on the legislature. m^r wilson. pardon is necessary for cases of treason, and is best placed in the hands of the executive. if he be himself a party to the guilt he can be impeached and prosecuted. m^r king thought it would be inconsistent with the constitutional separation of the executive & legislative powers to let the prerogative be exercised by the latter. a legislative body is utterly unfit for the purpose. they are governed too much by the passions of the moment. in massachusetts, one assembly would have hung all the insurgents in that state: the next was equally disposed to pardon them all. he suggested the expedient of requiring the concurrence of the senate in acts of pardon. m^r madison admitted the force of objections to the legislature, but the pardon of treasons was so peculiarly improper for the president that he should acquiesce in the transfer of it to the former, rather than leave it altogether in the hands of the latter. he would prefer to either an association of the senate as a council of advice, with the president. m^r randolph could not admit the senate into a share of the power. the great danger to liberty lay in a combination between the president & that body. col: mason. the senate has already too much power. there can be no danger of too much lenity in legislative pardons, as the senate must concur, & the president moreover can require 2/3 of both houses. on the motion of m^r randolph n. h. no.--mas. no. c^t div^d. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. ay. art ii. sect. 2. (paragraph 2) to the end of this, m^r govern^r morris moved to annex "but the congress may by law vest the appointment of such inferior officers as they think proper, in the president alone, in the courts of law, or in the heads of departments." m^r sherman 2^{ded} the motion. m^r madison. it does not go far enough if it be necessary at all. superior officers below heads of departments ought in some cases to have the appointment of the lesser offices. m^r gov^r morris. there is no necessity. blank commissions can be sent-on the motion n. h. ay. mas. no. c^t ay. n. j. ay. p^a ay. del. no. m^d div^d. v^a no. n. c. ay. s. c. no. geo. no. the motion being lost by an equal division of votes. it was urged that it be put a second time some such provision being too necessary to be omitted, and on a second question it was agreed to nem: con. art. ii. sect. 1. the words "and not per capita" were struck out as superfluous and the words "by the representatives" also--as improper, the choice of president being in another mode as well as eventually by the house of rep^s. art ii. sect. 2. after "officers of the u. s. whose appointments are not otherwise provided for," were added the words "and which shall be established by law." art iii. sect. 2. parag: 3. m^r pinkney & m^r gerry moved to annex to the end, "and a trial by jury shall be preserved as usual in civil cases." m^r gorham. the constitution of juries is different in different states and the trial itself is _usual_ in different cases in different states. m^r king urged the same objections. gen^l pinkney also. he thought such a clause in the constitution would be pregnant with embarrassments. the motion was disagreed to nem: con: art. iv. sect. 2. parag: 3. the term "legally" was struck out, and "under the laws thereof" inserted after the word "state" in compliance with the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view. art. iv. sect 3. "new states may be admitted by the congress into this 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 cong^s." m^r gerry moved to insert after "or parts of states" the words "or a state and part of a state" which was disagreed to by a large majority; it appearing to be supposed that the case was comprehended in the words of the clause as reported by the committee. art. iv. sect. 4. after the word "executive" were inserted the words "when the legislature cannot be convened." art. v. "the congress, whenever two thirds of both houses shall deem necessary, or on the application of two thirds of the legislatures of the several states shall propose amendments to this constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the legislatures of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the congress: provided that no amendment which may be made prior to the year 1808 shall in any manner affect the 1 & 4 clauses in the 9. section of article 1." m^r sherman expressed his fears that three fourths of the states might be brought to do things fatal to particular states, as abolishing them altogether or depriving them of their equality in the senate. he thought it reasonable that the proviso in favor of the states importing slaves should be extended so as to provide that no state should be affected in its internal police, or deprived of its equality in the senate. col: mason thought the plan of amending the constitution exceptionable & dangerous. as the proposing of amendments is in both the modes to depend, in the first immediately, and in the second ultimately, on congress, no amendments of the proper kind would ever be obtained by the people, if the government should become oppressive, as he verily believed would be the case. m^r gov^r morris & m^r gerry moved to amend the article so as to require a convention on application of 2/3 of the sts. m^r madison did not see why congress would not be as much bound to propose amendments applied for by two thirds of the states as to call a convention on the like application. he saw no objection however against providing for a convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. which in constitutional regulations ought to be as much as possible avoided. the motion of m^r gov^r morris & m^r gerry was agreed to nem: con: (see the first part of the article as finally past). m^r sherman moved to strike out of art. v. after "legislatures" the words "of three fourths" and so after the word "conventions" leaving future conventions to act in this matter, like the present conventions according to circumstances. on this motion n. h. div^d. mas. ay. c^t ay. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo--no. m^r gerry moved to strike out the words "or by conventions in three fourths thereof." on this motion n. h. no. mas. no. c^t ay. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r sherman moved according to his idea above expressed to annex to the end of the article a further proviso "that no state shall without its consent be affected in its internal police, or deprived of its equal suffrage in the senate." m^r madison. begin with these special provisos, and every state will insist on them, for their boundaries, exports &c. on the motion of m^r sherman n. h. no. mas. no. c^t ay. n. j. ay. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r sherman then moved to strike out art. v altogether. m^r brearley 2^{ded} the motion, on which n. h. no. mas. no. c^t ay. n. j. ay. p^a no. del div^d. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r gov^r morris moved to annex a further proviso--"that no state, without its consent shall be deprived of its equal suffrage in the senate." this motion being dictated by the circulating murmurs of the small states was agreed to without debate, no one opposing it, or on the question, saying no. col: mason expressing his discontent at the power given to congress by a bare majority to pass navigation acts, which he said would not only enhance the freight, a consequence he did not so much regard--but would enable a few rich merchants in philad^a n. york & boston, to monopolize the staples of the southern states & reduce their value perhaps 50 per c^t moved a further proviso that no law in the nature of a navigation act be passed before the year 1808, without the consent of 2/3 of each branch of the legislature. on this motion n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. abs^t. s. c. no. geo. ay. m^r randolph animadverting on the indefinite and dangerous power given by the constitution to congress, expressing the pain he felt at differing from the body of the convention, on the close of the great & awful subject of their labours, and anxiously wishing for some accommodating expedient which would relieve him from his embarrassments, made a motion importing "that amendments to the plan might be offered by the state conventions, which should be submitted to and finally decided on by another general convention." should this proposition be disregarded, it would he said be impossible for him to put his name to the instrument. whether he should oppose it afterwards he would not then decide but he would not deprive himself of the freedom to do so in his own state, if that course should be prescribed by his final judgment. col: mason 2^{ded} & followed m^r randolph in animadversions on the dangerous power and structure of the government, concluding that it would end either in monarchy, or a tyrannical aristocracy; which, he was in doubt, but one or other, he was sure. this constitution had been formed without the knowledge or idea of the people. a second convention will know more of the sense of the people, and be able to provide a system more consonant to it. it was improper to say to the people, take this or nothing. as the constitution now stands, he could neither give it his support or vote in virginia; and he could not sign here what he could not support there. with the expedient of another convention as proposed, he could sign. m^r pinkney. these declarations from members so respectable at the close of this important scene, give a peculiar solemnity to the present moment. he descanted on the consequences of calling forth the deliberations & amendments of the different states on the subject of government at large. nothing but confusion & contrariety could spring from the experiment. the states will never agree in their plans, and the deputies to a second convention coming together under the discordant impressions of their constituents, will never agree. conventions are serious things, and ought not to be repeated. he was not without objections as well as others to the plan. he objected to the contemptible weakness & dependence of the executive. he objected to the power of a majority only of cong^s over commerce. but apprehending the danger of a general confusion, and an ultimate decision by the sword, he should give the plan his support. m^r gerry stated the objections which determined him to withhold his name from the constitution. 1. the duration and re-eligibility of the senate. 2. the power of the house of representatives to conceal their journals. 3. the power of congress over the places of election. 4. the unlimited power of congress over their own compensation. 5. massachusetts has not a due share of representatives allotted to her. 6. 3/5 of the blacks are to be represented as if they were freemen. 7. under the power over commerce, monopolies may be established. 8. the vice president being made head of the senate. he could however he said get over all these, if the rights of the citizens were not rendered insecure 1. by the general power of the legislature to make what laws they may please to call necessary and proper. 2. raise armies and money without limit. 3. to establish a tribunal without juries, which will be a star-chamber as to civil cases. under such a view of the constitution, the best that could be done he conceived was to provide for a second general convention. on the question on the proposition of m^r randolph. all the states answered no. on the question to agree to the constitution as amended. all the states ay. the constitution was then ordered to be engrossed. and the house adjourned. monday sep^r 17. 1787. in convention the engrossed constitution being read. doc^r franklin rose with a speech in his hand, which he had reduced to writing for his own conveniency, and which m^r wilson read in the words following. m^r president i confess that there are several parts of this constitution which i do not at present approve, but i am not sure i shall never approve them: for having lived long, i have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which i once thought right, but found to be otherwise. it is therefore that the older i grow, the more apt i am to doubt my own judgment, and to pay more respect to the judgment of others. most men indeed as well as most sects in religion think themselves in possession of all truth, and that wherever others differ from them it is so far error. steele a protestant in a dedication tells the pope, that the only difference between our churches in their opinions of the certainty of their doctrines is, the church of rome is infallible and the church of england is never in the wrong. but though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said "i don't know how it happens, sister but i meet with nobody but myself, that is always in the right--_il n'y a que moi qui a toujours raison_." in these sentiments, sir, i agree to this constitution with all its faults, if they are such; because i think a general government necessary for us, and there is no form of government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other. i doubt too whether any other convention we can obtain may be able to make a better constitution. for when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. from such an assembly can a perfect production be expected? it therefore astonishes me, sir, to find this system approaching so near to perfection as it does; and i think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the builders of babel; and that our states are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats. thus i consent, sir, to this constitution because i expect no better, and because i am not sure, that it is not the best. the opinions i have had of its errors, i sacrifice to the public good. i have never whispered a syllable of them abroad. within these walls they were born, and here they shall die. if every one of us in returning to our constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting naturally in our favor among foreign nations as well as among ourselves, from our real or apparent unanimity. much of the strength & efficiency of any government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the government, as well as of the wisdom and integrity of its governors. i hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this constitution (if approved by congress & confirmed by the conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administered. on the whole, sir, i cannot help expressing a wish that every member of the convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.--he then moved that the constitution be signed by the members and offered the following as a convenient form viz: "done in convention by the unanimous consent of _the states_ present the 17^{th} of sep^r &c.--in witness whereof we have hereunto subscribed our names." this ambiguous form had been drawn up by m^r g. m. in order to gain the dissenting members, and put into the hands of doc^r franklin that it might have the better chance of success. m^r gorham said if it was not too late he could wish, for the purpose of lessening objections to the constitution, that the clause declaring "the number of representatives shall not exceed one for every forty thousand" which had produced so much discussion, might be yet reconsidered, in order to strike out 40,000 & insert "thirty thousand." this would not he remarked establish that as an absolute rule, but only give congress a greater latitude which could not be thought unreasonable. m^r king & m^r carrol seconded & supported the ideas of m^r gorham. when the president rose, for the purpose of putting the question, he said that although his situation had hitherto restrained him from offering his sentiments on questions depending in the house, and it might be thought, ought now to impose silence on him, yet he could not forbear expressing his wish that the alteration proposed might take place. it was much to be desired that the objections to the plan recommended might be made as few as possible. the smallness of the proportion of representatives had been considered by many members of the convention an insufficient security for the rights & interests of the people. he acknowledged that it had always appeared to himself among the exceptionable parts of the plan, and late as the present moment was for admitting amendments, he thought this of so much consequence that it would give much satisfaction to see it adopted.[102] [102] this was the only occasion on which the president entered at all into the discussions of the convention.--madison's note. no opposition was made to the proposition of m^r gorham and it was agreed to unanimously. on the question to agree to the constitution enrolled in order to be signed. it was agreed to all the states answering ay. m^r randolph then rose and with an allusion to the observations of doc^r franklin apologized for his refusing to sign the constitution notwithstanding the vast majority & venerable names that would give sanction to its wisdom and its worth. he said however that he did not mean by this refusal to decide that he should oppose the constitution without doors. he meant only to keep himself free to be governed by his duty as it should be prescribed by his future judgment. he refused to sign, because he thought the object of the convention would be frustrated by the alternative which it presented to the people. nine states will fail to ratify the plan and confusion must ensue. with such a view of the subject he ought not, he could not, by pledging himself to support the plan, restrain himself from taking such steps as might appear to him most consistent with the public good. m^r gov^r morris said that he too had objections, but considering the present plan as the best that was to be attained, he should take it with all its faults. the majority had determined in its favor, and by that determination he should abide. the moment this plan goes forth all other considerations will be laid aside, and the great question will be, shall there be a national government or not? and this must take place or a general anarchy will be the alternative. he remarked that the signing in the form proposed related only to the fact that the _states_ present were unanimous. m^r williamson suggested that the signing should be confined to the letter accompanying the constitution to congress, which might perhaps do nearly as well, and would be found satisfactory to some members[103] who disliked the constitution. for himself he did not think a better plan was to be expected and had no scruples against putting his name to it. [103] he alluded to m^r blount for one.--madison's note. m^r hamilton expressed his anxiety that every member should sign. a few characters of consequence, by opposing or even refusing to sign the constitution, might do infinite mischief by kindling the latent sparks which lurk under an enthusiasm in favor of the convention which may soon subside. no man's ideas were more remote from the plan than his own were known to be; but is it possible to deliberate between anarchy and convulsion on one side, and the chance of good to be expected from the plan on the other. m^r blount[104] said he had declared that he would not sign, so as to pledge himself in support of the plan, but he was relieved by the form proposed and would without committing himself attest the fact that the plan was the unanimous act of the states in convention. [104] "mr. blount is a character strongly marked for integrity and honor. he has been twice a member of congress, and in that office discharged his duty with ability and faithfulness. he is no speaker, nor does he possess any of those talents that make men shine;--he is plain, honest, and sincere. mr. blount is about 36 years of age."--pierce's notes, _amer. hist. rev._, iii., 329. doc^r franklin expressed his fears from what m^r randolph had said, that he thought himself alluded to in the remarks offered this morning to the house. he declared that when drawing up that paper he did not know that any particular member would refuse to sign his name to the instrument, and hoped to be so understood. he possessed a high sense of obligation to m^r randolph for having brought forward the plan in the first instance, and for the assistance he had given in its progress, and hoped that he would yet lay aside his objections, and by concurring with his brethren, prevent the great mischief which the refusal of his name might produce. m^r randolph could not but regard the signing in the proposed form, as the same with signing the constitution. the change of form therefore could make no difference with him. he repeated that in refusing to sign the constitution he took a step which might be the most awful of his life, but it was dictated by his conscience, and it was not possible for him to hesitate, much less, to change. he repeated also his persuasion, that the holding out this plan with a final alternative to the people, of accepting or rejecting it in toto, would really produce the anarchy & civil convulsions which were apprehended from the refusal of individuals to sign it. m^r gerry described the painful feelings of his situation, and the embarrassments under which he rose to offer any further observations on the subject w^{ch}. had been finally decided. whilst the plan was depending, he had treated it with all the freedom he thought it deserved. he now felt himself bound as he was disposed to treat it with the respect due to the act of the convention. he hoped he should not violate that respect in declaring on this occasion his fears that a civil war may result from the present crisis of the u.s. in massachusetts, particularly he saw the danger of this calamitous event--in that state there are two parties, one devoted to democracy, the worst he thought of all political evils, the other as violent in the opposite extreme. from the collision of these in opposing and resisting the constitution, confusion was greatly to be feared. he had thought it necessary, for this & other reasons that the plan should have been proposed in a more mediating shape, in order to abate the heat and opposition of parties. as it had been passed by the convention, he was persuaded it would have a contrary effect. he could not therefore by signing the constitution pledge himself to abide by it at all events. the proposed form made no difference with him. but if it were not otherwise apparent, the refusals to sign should never be known from him. alluding to the remarks of doc^r franklin, he could not he said but view them as levelled at himself and the other gentlemen who meant not to sign. gen^l pinkney. we are not likely to gain many converts by the ambiguity of the proposed form of signing. he thought it best to be candid and let the form speak the substance. if the meaning of the signers be left in doubt, his purpose would not be answered. he should sign the constitution with a view to support it with all his influence, and wished to pledge himself accordingly. doc^r franklin. it is too soon to pledge ourselves before congress and our constituents shall have approved the plan. m^r ingersol[105] did not consider the signing, either as a mere attestation of the fact, or as pledging the signers to support the constitution at all events; but as a recommendation, of what, all things considered, was the most eligible. [105] "mr. ingersol is a very able attorney and possesses a clear legal understanding. he is well educated in the classic's, and is a man of very extensive reading. mr. ingersol speaks well, and comprehends his subject fully. there is modesty in his character that keeps him back. he is about 36 years old."--pierce's notes, _amer. hist. rev._, iii., 329. on the motion of doc^r franklin n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. div^d.[106] geo. ay. [106] gen^l pinkney & m^r butler disliked the equivocal form of the signing, and on that account voted in the negative.--madison's note. m^r king suggested that the journals of the convention should be either destroyed, or deposited in the custody of the president. he thought if suffered to be made public, a bad use would be made of them by those who would wish to prevent the adoption of the constitution. m^r wilson preferd the second expedient, he had at one time liked the first best; but as false suggestions may be propagated it should not be made impossible to contradict them. a question was then put on depositing the journals and other papers of the convention in the hands of the president, on which, n. h. ay. m^{tts} ay. c^t ay. n. j. ay. pen^a ay. del. ay. m^d no.[107] v^a ay. n. c. ay. s. c. ay. geo. ay.[108] [107] this negative of maryland was occasioned by the language of the instructions to the deputies of that state, which required them to report to the state, the _proceedings_ of the convention.--madison's note. [108] "major jackson presents his most respectful compliments to general washington- "he begs leave to request his signature to forty diplomas intended for the rhode island society of the cincinnati. "major jackson, after burning all the loose scraps of paper which belong to the convention, will this evening wait upon the general with the journals and other papers which their vote directs to be delivered to his excellency. "monday evening" endorsed in washington's hand: "maj^r w^m jackson 17^{th} sep. 1787."--wash. mss. the president having asked what the convention meant should be done with the journals &c. whether copies were to be allowed to the members if applied for. it was resolved nem. con: "that he retain the journal and other papers, subject to the order of congress, if ever formed under the constitution." the members then proceeded to sign the instrument. whilst the last members were signing it doct^r franklin looking towards the president's chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had found it difficult to distinguish in their art a rising from a setting sun. i have said he, often and often in the course of the session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the president without being able to tell whether it was rising or setting: but now at length i have the happiness to know that it is a rising and not a setting sun. the constitution being signed by all the members except m^r randolph, m^r mason and m^r gerry, who declined giving it the sanction of their names, the convention dissolved itself by an adjournment sine die[109]- [109] the few alterations and corrections made in these debates which are not in my handwriting, were dictated by me and made in my presence by john c. payne. james madison.--madison's note. * * * * * [following is a literal copy of the engrossed constitution as signed. it is in four sheets, with an additional sheet containing the resolutions of transmissal. the note indented at the end is in the original precisely as reproduced here.] we the people of the united states, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america. article. i. section. 1. all legislative powers herein granted shall be vested in a congress of the united states, which shall consist of a senate and house of representatives. section. 2. the house of representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. no person shall be a representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the united states, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen. representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding indians not taxed, three fifths of all other persons. the actual enumeration shall be made within three years after the first meeting of the congress of the united states, and within every subsequent term of ten years, in such manner as they shall by law direct. the number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative; and until such enumeration shall be made, the state of new hampshire shall be entitled to chuse three, massachusetts eight, rhode-island and providence plantations one, connecticut five, new-york six, new jersey four, pennsylvania eight, delaware one, maryland six, virginia ten, north carolina five, south carolina five, and georgia three. when vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies. the house of representatives shall chuse their speaker and other officers; and shall have the sole power of impeachment. section. 3. the senate of the united states shall be composed of two senators from each state, chosen by the legislature thereof, for six years; and each senator shall have one vote. immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. the seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one third may be chosen every second year; and if vacancies 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. no person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the united states, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen. the vice president of the united states shall be president of the senate, but shall have no vote, unless they be equally divided. the senate shall chuse their other officers, and also a president pro tempore, in the absence of the vice president, or when he shall exercise the office of president of the united states. the senate shall have the sole power to try all impeachments. when sitting for that purpose, they shall be on oath or affirmation. when the president of the united states ^{is tried,} the chief justice shall preside: and no person shall be convicted without the concurrence of two thirds of the members present. judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the united states: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. section. 4. 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 chusing senators. the congress shall assemble at least once in every year, and such meetings shall be on the first monday in december, unless they shall by law appoint a different day. section. 5. each house shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide. each house may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two thirds, expel a member. each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one fifth of those present, be entered on the journal. neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. section. 6. the senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the united states. they shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place. no senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the united states, which shall have been created, or the emoluments whereof shall have been encreased 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. section. 7. all bills for raising revenue shall originate in the house of representatives; but the senate may propose or concur with amendments as on other bills. every bill which shall have passed the house of representatives and the senate, shall, before it become a law, be presented to the president of the united states; if he approve he shall sign it, but if not he shall return it, with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. if after such reconsideration two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of that house, it shall become a law. but in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. if any bill shall not be returned by the president within ten days (sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the congress by their adjournment prevent its return, in which case it shall not be a law. every order, resolution, or vote to which the concurrence of the senate and house of representatives may be necessary (except on a question of adjournment) shall be presented to the president of the united states; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the senate and house of representatives, according to the rules and limitations prescribed in the case of a bill. section. 8. the congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the united states; but all duties, imposts and excises shall be uniform throughout the united states; to borrow money on the credit of the united states; to regulate commerce with foreign nations, and among the several states, and with the indian tribes; to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the united states; to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; to provide for the punishment of counterfeiting the securities and current coin of the united states; to establish post offices and post roads; to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; to constitute tribunals inferior to the supreme court; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the united states, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress; 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 legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings;--and 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. section. 9. the migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. no bill of attainder or ex post facto law shall be passed. no capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken. no tax or duty shall be laid on articles exported from any state. no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear, or pay duties in another. no money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. no title of nobility shall be granted by the united states: and no person holding any office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. section. 10. 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 coin a 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. 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 it's 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 controul of ^{the} congress. no state shall, without the consent of congress, lay any duty of 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. article. ii. section. 1. the executive power shall be vested in a president of the united states of america. he shall hold his office during the term of four years, and, together with the vice president, chosen for the same term, be elected, as follows. each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the congress: but no senator or representative, or person holding an office of trust or profit under the united states, shall be appointed an elector. the electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. and they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the government of the united states, directed to the president of the senate. the president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted. the person having the greatest number of votes shall be the president, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the house of representatives shall immediately chuse by ballot one of them for president; and if no person have a majority, then from the five highest on the list the said house shall in like manner chuse the president. but in chusing the president, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice. in every case, after the choice of the president, the person having the greatest number of votes of the electors shall be the vice president. but if there should remain two or more who have equal votes, the senate shall chuse from them by ballot the vice president. the congress may determine the time of chusing the electors, and the day on which they shall give their votes; which day shall be the same throughout the united states. no person except a natural born citizen, or a citizen of the united states, at the time of the adoption of this constitution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen years a resident within the united states. in case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice president, and the congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or a president shall be elected. the president shall, at stated times, receive for his services, a compensation, which shall neither be encreased 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. before he enter on the execution of his office, he shall take the following oath or affirmation:--"i do solemnly swear (or affirm) that i will faithfully execute the office of president of the united states, and will to the best of my ability, preserve, protect and defend the constitution of the united states." section. 2. the president shall 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; he 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 offices, and he shall have power to grant reprieves and pardons for offences against the united states, except in cases of impeachment. he shall have power, by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the united states, whose appointments are not herein otherwise provided for, and which shall be established by law: but the congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments. the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session. section. 3. he shall from time to time give to the congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the united states. section. 4. the president, vice president and all civil officers of the united states, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. article. iii. section. 1. the judicial power of the united states, shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. section. 2. the judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the united states, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the united states shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states,--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. in all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make. the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed. section. 3. treason against the united states, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. the congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. article. iv. section. 1. full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. and the congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. section. 2. the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. a person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. no person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due. section. 3. new states may be admitted by the congress into this 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. the congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states; and nothing in this constitution shall be so construed as to prejudice any claims of the united states, or of any particular state. section. 4. the united states shall guarantee to every state in this union a republican form of government, and shall 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. article. v. the congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of it's equal suffrage in the senate. article. vi. all debts contracted and engagements entered into, before the adoption of this constitution, shall be as valid against the united states under this constitution, as under the confederation. 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 senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the united states and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the united states. article. vii. the ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same. the word, "the," being interlined done in convention by the between the seventh and eighth unanimous consent of the lines of the first page, the word states present the seventeenth "thirty" being partly written on an day of september in the year erazure in the fifteenth line of of our lord one thousand seven the first page, the words "is hundred and eighty seven and tried" being interlined between the of the independence of the thirty second and thirty third united states of america the lines of the first page and the twelfth in witness whereof we word "the" being interlined between have hereunto subscribed our the forty third and forty fourth names, lines of the second page. attest william jackson secretary g^o washington--presid^t and deputy from virginia new hampshire {john langdon } {nicholas gilman} massachusetts { nathaniel gorham { rufus king connecticut { w^m: sam^l johnson { roger sherman new york alexander hamilton new jersey { wil: livingston { david brearley { w^m paterson { jona: dayton pennsylvania { b franklin { thomas mifflin { rob^t morris { geo. clymer { tho^s fitzsimons { jared ingersoll { james wilson { gouv morris delaware { geo: read { gunning bedford jun { john dickinson { richard bassett { jaco: broom maryland { james m^chenry { dan of s^t tho^s jenifer { dan^l carroll virginia { john blair- { james madison jr. north carolina { w^m blount { rich^d dobbs spaight { hu williamson south carolina { j. rutledge { charles cotesworth pinckney { charles pinckney { pierce butler georgia { william few { abr baldwin [illustration: first page of the constitution (reduced)] in convention monday september 17^{th}. 1787. present the states of new hampshire, massachusetts, connecticut, m^r hamilton from new york, new jersey, pennsylvania, delaware, maryland, virginia, north carolina, south carolina and georgia. resolved, that the preceeding constitution be laid before the united states in congress assembled, and that it is the opinion of this convention, that it should afterwards be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification; and that each convention assenting to, and ratifying the same, should give notice thereof to the united states in congress assembled. resolved, that it is the opinion of this convention, that as soon as the conventions of nine states shall have ratified this constitution, the united states in congress assembled should fix a day on which electors should be appointed by the states which shall have ratified the same, and a day on which the electors should assemble to vote for the president, and the time and place for commencing proceedings under this constitution. that after such publication the electors should be appointed, and the senators and representatives elected: that the electors should meet on the day fixed for the election of the president, and should transmit their votes certified, signed, sealed and directed, as the constitution requires, to the secretary of the united states in congress assembled, that the senators and representatives should convene at the time and place assigned; that the senators should appoint a president of the senate, for the sole purpose of receiving, opening and counting the votes for president; and, that after he shall be chosen, the congress, together with the president, should, without delay, proceed to execute this constitution. by the unanimous order of the convention g^o: washington presid^t. w. jackson secretary. index a accounts of expenditures. _see_ expenditures of government. acts, originating of. _see_ legislature, national, acts of. address to accompany constitution, moved, ii., 347; considered, 377. adjournment of legislature. _see_ legislature, national, power of. age, of executive. _see_ executive, national, age of. of representatives. _see_ legislature, national, house of representatives. of senators. _see_ legislature, national, senate. allen, paul, signs address from rhode island, i., 11, n. amendments to constitution, provision for, debated, i., 79, 122, ii., 384; postponed, i., 79; debated, 122, 287; agreed to, 137, ii., 30; motion to reconsider clause, 339; moved that states agree to, 340. appointment, power of. _see_ executive, national, power of; judiciary, national, supreme; legislature, national. senate. appropriations, originating of, _see_ legislature, national, money bills; accounts of, _see_ expenditures of government. aristocracy, fear of, expressed by mason, i., 310; defended by g. morris, 310, ii., 98; probability of, 159. armies, power to raise and support. _see_ legislature, national, power of. arnold, welcome, signs address from rhode island, i., 11, n. arsenals, forts, etc. _see_ forts, arsenals, etc. articles of confederation, amendments to, proposed by dickinson, i., 166. b baldwin, abraham, ga., attends convention, i., 114; favors representation in senate by wealth of states, 271; pierce's sketch of, 271, n.; on compromise committee on representation, 292; thinks foreigners should be excluded from government, ii., 145; thinks provisions on citizenship should not extend to those already citizens, 148; appointed on grand committee, 193; thinks slave trade not a national question, 222; on committee on navigation acts, 225; moves that duty on slaves be uniform, 251; thinks public lands should be guaranteed to states, 281; on committee of august 31, 292; thinks members of legislature should be ineligible to other offices, 296; approves plan of electing executive by electors, 302; moves to exclude from new offices members of first legislature, 371. bankruptcy, uniform law of. _see_ legislature, national, power of; house of representatives. barton, william, signs address from rhode island, i., 11, n. bassett, richard, del., attends convention, i., 1; pierce's sketch of, 1, n. bedford, gunning, del., attends convention, i., 5; favors short term for executive, 54; pierce's sketch of, 54, n.; opposes absolute veto in executive, 72; opposes negative of state laws by legislature, 105; threatens foreign alliance of small states, 283; on compromise committee on representation, 292; explains threat of foreign alliance, 300; moves that national legislature make laws when harmony would be interrupted by state legislation, 372; prefers appointment of judges by senate, 386; opposes provision against standing army, ii., 374; favors increase in representation of rhode island and delaware, 379. bill of rights, inclusion of, debated, ii., 364. bills of attainder. _see_ legislature, national, power of. bills of credit, power to emit. _see_ legislature, national, power of. blair, john, va., attends convention, i., 1; pierce's sketch of, 1, n. blount, william, n. c., attends convention, i., 189; announces he will sign constitution, ii., 394; pierce's sketch of, 394, n. bowen, jabez, signs address from rhode island, i., 11, n. brearley, david, n. j., attends convention, i., 1; favors equal vote of states in national legislature, 109; pierce's sketch of, 109, n.; moves that new hampshire delegates be sent for, 272; opposes election of executive by joint ballot, ii., 243; seconds motion to elect executive by states, 244; on committee of august 31, 292; reports from committee, 292, 296, 304; seconds motion against amendments, 386. broome, jacob, del., attends convention, i., 1; favors nine years' term for senators, 238; insists upon equal representation for new jersey in senate, 327; opposes adjournment on question of representation, 368; opposes seven years' term for executive, 379; pierce's sketch of, ii., 8, n.; seconds motion to postpone clause fixing term of executive, 44; seconds motion to except army and navy from disqualification from legislature, 166; thinks legislature can fix their own compensation, 168; favors same compensation for both houses of legislature, 170; thinks national government should punish for treason, 206; seconds motion in favor of national negative of state laws, 236; moves reference of question of term of executive, 245. brown, john, signs address from rhode island, i., 11, n. brown, nicholas, signs address from rhode island, i., 11, n. butler, pierce, s. c., attends convention, i., 2; moves secrecy of proceedings, 10; pierce's sketch of, 11, n.; moves debate on national government, 33; wants explanation of personnel of senate, 43; fears deprivation of state powers, 46; favors single executive, 66; opposes absolute negative in executive, 72; proposes power of suspending legislation for executive, 75; opposed to institution of inferior judiciary, 83, 388; opposes indefinite negative of state laws by legislature, 106; favors wealth as basis of representation, 115, 120, 307, 321; thinks senators should have no compensation, 129; thinks senate should have power to originate money bills, 132; moves vote on compensation of legislature, 213; favors ineligibility to all other offices of representatives, 214; opposes ineligibility of representatives to offices created during their term, 218; thinks candidates for office will not be wanting, 222; moves question of representation in senate, 235; opposes ineligibility of senators to state offices, 246; opposes report of compromise committee on representation, 298; moves increase in representation of south carolina, 325; insists upon inclusion of blacks in representation, 331; thinks slave labor as productive as free labor, 331; favors representation by population, 341; demands security for slavery, 352; thinks powers of legislature loosely defined, 366; opposes frequent elections of executive, ii., 9; favors election of executive by electors chosen by state legislatures, 52; opposes re-eligibility of executive, 52; moves to refer question of executive to committee of detail, 56; favors fixing plan for national capital, 67; thinks question of suffrage should be left to states, 97; moves three years' inhabitancy for representatives, 110; thinks money bills should originate in house, 115; favors long inhabitancy for senators, 122; urges postponement of clause concerning eligibility of members of legislature to other offices, 166; favors state compensation for members of legislature, 167; opposes power to emit bills of credit, 181, 183; thinks president should have power to declare war, 188; moves that legislature have power to declare peace, 189; thinks militia should be under national control, 196; favors adjustment of taxation to representation, 212; opposes federal power over exports, 214, 224; moves discrimination in paying creditors, 238; moves reconsideration of question of discharging debts, 241; thinks creditors should stand where they are, 249; on committee of august 25, 254; moves that fugitive slaves and servants be surrendered, 267, 274; favors commercial regulations to be made by two-thirds vote, 271; thinks new states should not be made without consent of old states, 276; thinks nine states may ratify constitution, 285; on committee of august 31, 292; thinks election of executive by electors objectionable, 302; favors making treaties of peace without president, 330; thinks congress must sanction state export duties, 366; dislikes form of signing, 396, n. c canals, provision for, proposed. _see_ legislature, national, power of. capital, national. _see_ seat of government. capitation tax. _see_ taxation, capitation. captures. _see_ legislature, national, power of. carrington, edward, to jefferson, on progress of convention, i., 107, n.; to madison, 130, n.; to monroe, ii., 90, n.; to madison, 142, n. carroll, daniel, md., attends convention, i., 318; favors national power to suppress insurrection, 392; pierce's sketch of, ii., 38, n.; doubts propriety of per capita voting in senate, 38; favors election of executive by electors chosen by lot from national legislature, 47; thinks direct taxation should depend on census, 47; opposes disqualification from legislature of persons having unsettled government accounts, 63; thinks number for quorum cannot be fixed, 135; thinks right of expulsion should be with two-thirds of legislature, 136; moves senators be permitted to enter dissent to measures, 136; fears new york will be capital, 140; moves five years' citizenship for representatives, 148; explains provision as to money bills in maryland, 157; favors national compensation for members of legislature, 168, 169; thinks greater checks to bad laws necessary, 174; thinks a quorum should be more than a majority, 177; thinks exports should not be taxed, 181; opposes taxation by congressional representation, 209; thinks prohibition of _ex post facto_ laws necessary, 228; moves election of executive by the people, 243, 245; moves provision to prevent favoring ports of entry, 252; on committee of august 25, 254; objects to requiring consent of states to dismemberment, 277; moves that right of u. s. to public lands be confirmed, 280; moves that land question go to supreme court, 281; moves to postpone question of ratification, 284, 286; thinks all the states must ratify, 286; thinks maryland must ratify as required by maryland law, 286; thinks vessels should enter and clear in their own states, 291; on committee of august 31, 292; proposes an address to the people, 377; moves states have power to lay tonnage taxes, 380; urges larger representation, 392. census, taking of, debated, i., 327, 340; every fifteen years, vote on, 340; two years after meeting of legislature, 344; ordered within six years after meeting of legislature, 346; every ten years, 347; every twenty years, 346; first to be in three years, ii., 208. charters, power to grant, proposed. _see_ legislature, national, power of. citizenship, of representatives, _see_ legislature, national, house of representatives, senate; uniformity of, in the several states, agreed to, ii., 266. clymer, george, pa., attends convention, i., 5; appointed on grand committee, ii., 193; thinks power to tax exports should exist for revenue only, 217; pierce's sketch of, 217, n.; on committee on navigation acts, 225; disapproves slave-trade arrangement, 251; thinks states should regulate their own manufactures, 266; favors commercial regulations, 270; moves to postpone ratification question, 286; favors ratification by a majority of the people and the states, 287; objects to senate's power, 315; thinks old congress need not sanction constitution, 345. commercial regulations. _see_ navigation acts. committee, grand, appointed, ii., 193. committee of the whole, convention goes into, i., 32; reports, 134; last session, 165. committee on detail, resolutions referred to, ii., 67; report of, 76; debated, 90. committee on plan of compromise, appointed, i., 292; reports, 293. committee on rules, appointed, i., 5; reports, 7. committee on style and arrangement, appointed, ii., 338; report of, 347, 369; debated, 367, 368. committee on sumptuary legislation, appointed, ii., 366. compensation of executive. _see_ executive, national, compensation of. compensation of judiciary. _see_ judiciary, national, compensation of. compensation of legislature. _see_ legislature, national, compensation of. compromise on representation, debate on, i., 287; report of committee on, 294. confederation, articles of. _see_ articles of confederation. congress. _see_ legislature, national. constitution, engrossed, read, ii., 389; text of, 398. continental congress, continuance of, till constitution goes into effect, proposed, i., 79; agreed to, 137; debate on, 390. contracts, impairment of, prohibited, ii., 377. copyright law. _see_ legislature, national, power of. council, executive. _see_ executive council. council of revision of laws, debate on, i., 69; ii., 17. counterfeiting, power to punish, debated, ii., 185. courts. _see_ judiciary. credentials of delegates read, i., 4. d davie, william richardson, n. c., attends convention, i., 2; pierce's sketch of, 65, n.; opposes unequal representation in senate, 279; on committee on compromise on representation, 292; insists that blacks be included in basis of representation, 342; favors impeachability of executive, ii., 11; proposes eight years' term for executive, 43. dayton, jonathan, n. j., attends convention, i., 200; opposes compensation of senators by state legislatures, 245; pierce's sketch of, 245, n.; favors voting in house by states, 252; favors equal representation in senate, 282; insists on equality of small states, 356; favors representation by free inhabitants, ii., 114; thinks a standing army necessary, 195; proposes mixed control of militia, 231, 232; thinks judiciary will decide controversies between states, 241; opposes election of executive by joint ballot, 243; moves election of executive by states, 244; on committee of august 25, 254; thinks tranquillity of states should be guaranteed, 282; moves ratification by ten states, 287; moves that treaties be made without two-thirds of senate, 334; objects to state export duties, 365. debt, national, report on, ii., 209; debate on, 210; proposition for settling, 210; provision for payment of, 226, 238; reconsideration of, proposed, 241; motion to make payment obligatory, debated, 249. _see_ legislature, national, power of. delaware, increase in representation of, moved, ii., 379. detail, committee on. _see_ committee on detail. dickinson, john, del., attends convention, i., 12; moves removability of executive by state legislatures, 62; pierce's sketch of, 62, n.; favors separation of branches of government, 63; favors institution of inferior judiciary, 83; favors election of representatives by people, 89; favors negative over laws by executive, 93; moves that senators be elected by legislatures, 94; thinks senate should resemble house of lords, 95; thinks preservation of states necessary, 97; favors negative by legislature over state laws, 105; favors representation by wealth, 115; proposes postponement of jersey plan, 151; proposes amendment of articles of confederation, 152; favors three years' term for representatives, 207; favors election of executive by the people, ii., 55; opposes property qualification for legislature, 61; favors restriction of suffrage to freeholders, 97; proposes ---years' residency for representatives, 108; thinks provision as to money bills should stand, 154; proposes fixed payment for members of legislature every twelve years, 169; moves both branches of legislature receive the same pay, 170; thinks judiciary should not have power to set a law aside, 173; moves that rebellion against government be suppressed, 187; appointed on grand committee, 193; thinks great appointments should be made by legislature, 194; thinks treason should be defined, 204; thinks war against one state the same as against all, 207; moves that representation of large states be limited, 210; favors power over exports, 214; on committee on navigation acts, 225; thinks president should share in treaty-making power, 239; moves executive have power to appoint to future offices, 246; moves executive appoint officers not to be appointed by states, 247; moves to permit slave trade in states permitting it, 251; favors postponement of question of executive succession, 256; thinks legislature will not improperly ask removal of judges, 257; moves that judiciary have equity power, 260; explains meaning of _ex post facto_ laws, 268; thinks small states should not secure claims of large states, 276; moves that legislatures consent to formation of new states, 280; thinks tranquillity of states should be guaranteed, 282, 283; asks if congress is to concur in constitution, 284; on committee of august 31, 292; thinks eventual election of president should be with whole legislature, 310; moves that vote of presidential electors be from all who are appointed, 312; favors an executive council, 332; objects to state export duties, 366; on committee on sumptuary legislation, 366; moves to strike out "direct taxes," 367. duties on exports. _see_ exports. imports. _see_ imports. e election, of executive. _see_ executive, national, election of. of representatives. _see_ legislature, national, house of representatives, election of. of senators. _see_ legislature, national, senate, election of. electors. _see_ executive, national, election of. ellsworth, oliver, conn., attends convention, i., 5; pierce's sketch of, 120, n.; opposes ratification by conventions, 189; favors one-year term for representatives, 207; favors payment of representatives by states, 209; favors payment of senators by states, 245; favors election of senators by legislatures, 234; favors equal state representation in senate, 269, 275, 285; on committee on compromise on representation, 292; favors compromise on representation, 301; opposes increase in representation, 325; favors free inhabitants and three-fifths of slaves as basis of taxation, 343; favors representation by free inhabitants and three-fifths slaves, 344; opposes adjustment of taxation and representation after census, 349; insists upon state equality in senate, 363; moves election of executive by electors appointed by legislatures, ii., 7; favors six years' term for executive, 9; moves increase in electors of new hampshire and georgia, 10; favors inclusion of judiciary in revisionary power, 18; favors appointment of judges by senate with power negative of appointment by executive, 27; favors ratification of constitution by state legislatures, 31, 34; favors voting per capita in senate, 37; favors re-eligibility of executive, 42; on committee to report constitution, 48; moves election of executive by legislature and re-election by electors named by state legislatures, 48; opposes election of executive by the people, 51; opposes disqualification of public debtors from legislature, 65; thinks time of meeting of legislature ought to be fixed, 93; thinks legislature ought to meet in winter, 95; thinks question of suffrage should be left to states, 96; thinks suffrage should be liberal, 97; thinks representatives should reside in their states, 108; moves that representatives be residents of their states for a year, 109; thinks ratio of representatives to inhabitants may change, 112; thinks originating money bills in house unimportant, 116, 118; thinks state executives should fill vacancies in senate, 117; opposes fourteen years' citizenship for senators, 121; thinks property qualification for members of government should not be fixed, 130, 131; thinks number for quorum should not be small, 134; thinks no provision necessary for yeas and nays, 136; thinks provision for journal unnecessary, 138; favors ineligibility of members of legislature to other offices, 165; favors national compensation for members of legislature, 166; thinks members of legislature may fix their pay, 169; moves $5 per day as payment for legislature, 169; urges necessity of reaching a decision, 175; thinks exports should not be taxed, 179; opposes power to emit bills of credit, 182; moves to enlarge power over piracies, felonies, etc., 186; thinks executive should have power to suppress rebellion in a state, 186; defines power of making war and peace, 188; thinks state debts may be assumed by nation, 192; urges consideration of president's council, 193; thinks states should have partial control over militia, 195, 197; thinks power of taxation includes sumptuary power, 202; thinks treason sufficiently defined, 203, 205, 207; moves census in three years, 208; moves report on state debts lie on table, 210; thinks adjustment of debts necessary, 211; thinks taxation by representation unjust, 211; thinks states may tax exports, 213; thinks an embargo permissible, 215; thinks slave trade a question for the states, 218, 220; favors accepting constitution as it stands, 225; thinks prohibition of _ex post facto_ laws unnecessary, 227; thinks requirement of fulfilment of old government's engagements unnecessary, 229; favors national power to train militia, 230; proposes mixed control of militia, 231; opposes national negative of state laws, 237. emancipation. _see_ slavery. embargo, power to lay, debated, ii., 214, 215; by states, debated, 264. executive council, proposed, i., 68; debated, ii., 193, 331, 332. executive, national, debate on, i., 49; provisions reconsidered, ii., 7; referred to committee on detail, 56; vote on, 59. age, nativity, and residence of, agreed to, ii., 336. compensation of, franklin proposes no salary, i., 57, ii., 381; mode of payment, 16. correspondence of, with states, debated, ii., 248. election of, proposed by district electors, i., 55, 56; by national legislature for seven years, proposed, 57; mode of, reconsidered, 53, 101, 107, 108, ii., 44, 46, 47, 48, 52, 53; by state conventions, proposed, i., 109; by national legislature, 374, 378, 379, ii., 40, 42, 55, 242; by electors chosen by state legislatures, i., 377, ii., 8; ratio of electors considered, 10; electors not to be officials, 16; by electors, debated, 38, 39, 297, 301, 307, 310, 322; term of electors debated, 47; re-election of electors considered, 52; regulations as to age and residence debated, 226; by states, proposed, 244; by electors, defeated, 245; when to take place, proposed, 290; to be at seat of government, proposed, 317; how vote is to be counted, debated, 317; to fill vacancy, considered, 381; verbal amendment of clause, 383. eligibility of, to re-election, debated, i., 67, 378, 383, ii., 1, 8, 40, 42. exclusion from, of those indebted to government, considered, ii., 61. foreign ambassadors to be received by, ii., 254. impeachability of, agreed to, i., 65; method of, debated, 385, 386, ii., 11, 15, 16, 335, 337; moved to postpone question, 15; house to have power of, 116. militia to be commanded by, when in active service, ii., 255. native citizens only to be eligible, ii., 299. negative of, on national legislation, debated, i., 54, 69, 74, 385, ii., 174, 175, 361; qualified, agreed to, i., 75, ii., 25; inclusion of judiciary in, proposed, i., 75; absolute, debated, ii., 12; ten days allowed for, 176; agreed to, 176; moved to extend to resolutions, 176. oath of, prescribed, ii., 256. power of, debated, i., 52, 53, 58, 91, 378, ii., 17, 46, 254, 299; to make appointments, i., 379, ii., 246, 328, 329, 334, 383; to revise legislation, 17, 25, 246; to pardon criminals, 254, 381; to make treaties, 327, 329; to demand opinions of heads of departments, 330; to convene either house of legislature, 338. removability of, on request of state legislatures, debated, i., 62, 65; question postponed, ii., 256, 299; debated, 299. single, proposed, i., 51, 65, 69; agreed to, 374, ii., 242; debate on, 41. succession in, debated and postponed, ii., 256. term of, debated, i., 54, 155, 379, ii., 9, 42, 58, 59, 80; seven years', proposed, i., 54, 378, 383, ii., 9, 316; during good behavior, proposed, i., 382; six years', proposed, ii., 9, 316; six years in twelve, proposed, 56. expenditures of government, moved that an account of be published, ii., 376, 377. expenses of convention, provision for, ii., 303, 306. exports, tax on, debated, ii., 177, 213, 254; state power to tax, debated, 266, 364. _ex post facto_ laws. _see_ legislature, national, power of. expulsion from legislature. _see_ legislature, national, expulsion from. f federal or national government, debate on, i., 32. felonies. _see_ piracies and felonies. few, william, ga., attends convention, i., 2; pierce's sketch of, 2, n.; on committee of august 25, ii., 254. fitzsimmons, thomas, pa., attends convention, i., 1; favors restriction of suffrage to freeholders, ii., 96; opposes power to tax exports, 216; on committee of august 25, 254; admits inconvenience to require vessels to enter and clear in their own state, 291; seconds motion to include house of representatives in treaty-making power, 327; thinks old congress need not sanction constitution, 343; favors incidental state export duties, 365; thinks publication expenditures impossible, 376. forts, arsenals, etc., provision for acquisition of, ii., 306. franklin, benj., pa., attends convention, i., 5; pierce's sketch of, 49, n.; moves that executive receive no salary, 57; opposes negative in executive, 70; favors executive council, 71; opposes single executive, 74; suggests method for choosing judges, 77; appeals for harmony in convention, 115; favors proportional representation, 115; objects to liberal compensation for legislature, 126; favors no salary for senators, 244; thinks voting in senate not a separate question, 259; proposes prayers in convention, 260; favors compromise on representation, 280; on committee on compromise on representation, 292; thinks money bills should originate in house, 311; favors power to increase judges' salaries, 387; favors impeachability of executive, ii., 12, 14; thinks executive returning to private life no degradation, 68; favors general suffrage, 100; thinks compromise on representation should stand, 118; opposes long residence in the states for senators, 122; thinks new citizens will not be elected to senate, 125; opposes property qualification for officers of government, 130; thinks two witnesses necessary in treason cases, 206; favors executive council, 331; seconds motion for second convention, 347; on committee on sumptuary legislation, 366; moves legislature have power to cut canals, 372; moves to limit president's emoluments, 381; proposes plan for signing constitution, 389; disclaims personal reflections on non-signatories, 394; thinks members cannot pledge themselves, 396; remarks on signing, 397. franklin, william temple, nominated for secretary of convention, i., 4. g general-welfare clause. _see_ legislature, national, power of. georgia, increase in representation of, moved, i., 324. gerry, elbridge, mass., attends convention, i., 12; doubts if convention can form national government, 34; pierce's sketch of, 34, n.; opposes election of representatives by the people, 40, 42, 84; favors an executive council, 51; opposes election of executive by national legislature, 56; opposes inclusion of judiciary in council of revision, 69, 92; favors single executive, 69; favors qualified negative on legislation by executive, 70; favors provision for amendments, 79; opposes ratification of constitution by the people, 80; favors election of senators by state legislatures, 97, 99; moves reconsideration of question of choosing executive, 101; moves indefinite negative on state laws by national legislature, 103; moves election of executive by state executives, 107, ii., 49; favors representation based on free population, i., 120; opposes requiring oath to national government from state officers, 123; favors one-year term for representatives, 124; proposes that senate shall not originate money bills, 132; thinks maximum and minimum for quorum should be fixed, 134; favors ineligibility of representatives to other offices, 220, 223; opposed to monarchy, 242; favors four or five years' term for senators, 243; opposes equal state representation, 268; favors committee to compromise representation, 292; on committee to arrange compromise on representation, 292; offers report of committee of compromise on representation, 293; favors compromise on representation, 302; favors representation on basis of population and wealth, 305; thinks originating money bills in house a concession, 310; moves to postpone question of voting in senate, 313; favors increase in representation, 326; thinks three-fifths of blacks sufficient proportion as basis of representation, 331; thinks taxation and representation cannot be arranged, 347; favors direct taxation according to representation, 347, 350; favors originating money bills in house, 356; favors compromise on representation in senate, 357; opposes adjournment on question of representation, 368; opposes re-eligibility of executive, ii., 7, 42, 43; favors election of executive by electors appointed by state legislatures, 8; moves ratio for electors for executive, 10; favors impeachability of executive, 13; moves that electors for executive be not officials, 16; opposes inclusion of judiciary in revisionary power, 19, 24; favors appointment of judges by senate, 28; moves that officers take oath of allegiance, 30; thinks constitution should be ratified by legislatures, 32; moves appointment of committee to report constitution, 39; moves election of executive by legislatures, 42; suggests fifteen years' term for executive, 43; proposes referring term of executive to committee, 44, 46; opposes election of executive by electors chosen by lot from national legislatures, 47; favors election of executive for not more than six years in twelve, 53; opposes popular election of executive, 54; favors exclusion from office of those indebted to government, 61, 64; favors exclusion from legislature of pensioners, 64; favors prohibiting state and national capital at same place, 66; thinks quorum should be fixed, 134; moves to permit senate to publish journal, 137, 138; thinks executive should not influence place of meeting of legislature, 140; thinks none but natives should be representatives, 143; declares his state opposes members of legislature holding any other offices, 161; points out objections to both national and state legislatures, 202; thinks exports should not be taxed, 179; moves to include post roads in power of legislature, 181; thinks rebellion should be suppressed on state application, 186; moves legislature have power to declare war, 188; favors giving legislature power to make peace, 189; thinks letters of marque should be considered, 191; thinks executive should not interfere in legislation, 194; favors provision against large army in time of peace, 194, 195, 198; moves committee be instructed to report on qualifications for executive and impeachment of judges, 202; opposes power to make sumptuary laws, 202; moves that taxation be by congressional representation, 208, 211; thinks states should pay their debts, 209; opposes power to tax exports, 216; thinks slave trade should not be sanctioned, 222; moves prohibition of _ex post facto_ laws and bills of attainder, 227; thinks government should have power to fulfil engagements of old government, 229; thinks national government should not control militia, 230; thinks liberty will not be as safe in national as state government, 232; warns convention against depriving states of their powers, 233; thinks actual debts should be paid, 248; seconds motion to remove judges on application of legislature, 257; moves to postpone question of ratification, 289; thinks members of legislature should not hold other offices, 295; objects to appropriations for army for more than one year, 305; objects to power to buy forts, etc., 305; moves to reconsider four articles, 306; objects to powers given president, 307; objects to less than majority electing president, 310; suggests eventual election of president by six senators and seven representatives, 310; seconds motion to permit senate to choose president from three candidates, 311; moves that electors be not office-holders, 312; moves change of clause for re-electing president, 312; moves that states vote for president in legislature with at least three members, 325; withdraws motion, 325; objects to vice-president being president of senate, 326; thinks president will not be responsible for his appointments, 328; thinks treaties of peace must be carefully guarded, 330; thinks it dangerous to put too much power in senate, 333; moves two-thirds vote of senate for treaties, 333; seconds motion for majority for treaties of whole number of senators, 334; proposes that notice of treaties to senators be required, 334; moves no appointments be allowed except as authorized by law, 335; thinks impeachability of president should be extended, 335; moves legislature have sole right to create offices, 338; moves reconsideration of provision for amendments, 339; seconds motion for states' consent to amendments, 341; moves sanction of old congress to constitution be asked, 342; thinks ratification should be made difficult, 344, 346; seconds a plan of ratification, 345; favors two-thirds vote to override president's negative, 362; urges clause requiring jury trials, 363; moves bill of rights be prepared, 364; moves that all proceedings of house be published, 370; approves prohibition of _ex post facto_ laws, 375; moves liberty of press be guaranteed, 375; seconds motion for annual publication of accounts, 376; moves prohibition of violation of contracts, 377; moves jury trial be preserved in civil cases, 384; moves verbal amendment relative to admission of states, 384; moves convention be required to make amendments, 385; favors a second constitutional convention, 388; defends action in not signing constitution, 395; refuses to sign, 398. gilman, nicholas, n. h., attends convention, ii., 29; pierce's sketch of, 29, n. gorham, nathaniel, mass., attends convention, i., 5; elected chairman of committee of the whole, 32; favors national payment of representatives, 210; pierce's sketch of, 210, n.; opposed to ineligibility of representatives to other offices, 214; favors compromise on representation, 232; opposes readjustment of land cession, 233; favors four years' term for senators, 236; moves six years' term and rotation for senators, 237; thinks small states equally interested with large states in union, 262; favors representation by population, 305; on committee to arrange representation, 307; defends report on representation, 319; thinks standard of representation should be fixed, 334; favors population as basis of representation, 339; opposes defining legislature's powers, 366; favors appointment of judges by senate, 384; favors appointment of judges by the people, 385; favors appointment of judges by executive, 386; moves appointment of judges by executive with consent of senate, 387; favors institution of inferior judicial tribunals, 389; favors power to suppress insurrections, 391; opposes inclusion of judiciary in revisionary power, ii., 18, 24; thinks oath of allegiance no bar to amendments to constitution, 30; opposed to ratification of constitution by legislatures, 33; favors two senators from each state, 37; on committee to report constitution, 48; favors prohibition of national capital at state capital, 66; thinks constitution should fix time of meeting of legislature, 93; favors voting by non-freeholders, 106; thinks the new government will not last, 112; thinks senate should not originate money bills, 115; thinks mode of electing representatives should not be left to state legislatures, 126; thinks less than a majority may be a quorum of legislature, 132; thinks yeas and nays need not be required, 136; thinks provision concerning citizenship need not be retroactive, 146; thinks senate should be paid more than house, 170; insists that money bills originate in house, 171; urges necessity for action, 211; opposes power to emit bills of credit, 181, 182; moves appointment of treasurer by joint ballot of legislature, 183; favors national support of army, 194; thinks adjustment of debts may be left to national legislature, 210; thinks union only of commercial advantage, 225; suggests difficulties of ratifying treaties by legislature, 239; thinks treaties should be negotiated in this country, 241; doubts if judiciary can impartially decide controversies between states, 242; favors election of executive by joint ballot of legislature, 242; seconds motion to extend period of slave trade, 250; thinks duty on slaves may discourage importation, 252; thinks precaution against discrimination in ports of entry unnecessary, 253; on committee of august 25, 254; thinks prohibition of paper money dangerous, 262; favors article providing for validity of state acts, 267; on committee on interstate acts, 268; thinks new england's motive for union dependent on commercial arrangements, 273; favors convention for ratification, 287; thinks vessels should not be obliged to enter and clear in their own states, 291; thinks members of legislature may be eligible to other offices, 295; thinks majority of senate may elect president, 318; thinks separate provision for treaties of peace unnecessary, 330; thinks treaties need not require two-thirds of senate, 334; opposes conditional ratification, 343; thinks jury question need not be included, 363; objects to state export duties, 365; thinks legislature should choose treasurer, 371; thinks provision as to jury trials unnecessary, 384; urges additional representation, 392. grand committee. _see_ committee, grand. grayson, william, to madison, i., 5, n.; to monroe, 32, n. h habeas corpus, necessity for preserving right of, debated, ii., 261. hall, levi, signs address from rhode island, i., 11, n. halsey, thomas lloyd, signs address from rhode island, i., 11, n. hamilton, alexander, n. y., attends convention, i., 1; nominates william jackson for secretary of the convention, 4; pierce's sketch of, 4, n.; on committee on rules, 4; moves representation by free inhabitants, 37; favors absolute negative of executive on legislation, 70; moves proportional voting in senate, 121; presents his plan of government, 152; explains views on powers of the states, 185, 189; opposes election of representatives by state legislatures, 205; favors three years' term for representatives, 209; opposes fixing compensation for representatives, 211; opposes ineligibility of representatives to other offices, 215, 223; favors centralized government, 241; opposes prayers in convention, 260; writes to washington about public sentiment, 293, n.; thinks citizenship and inhabitancy alone necessary for representatives, iv., 144; thinks president may be elected by a plurality of electors, 315; appointed on committee on style and arrangement, 338; favors increase in representation, 339; favors easily made amendments, 340, 341; thinks old congress should sanction constitution, 342; thinks constitution will be effective if ratified by nine states, 343; moves a plan for ratification, 344; withdraws it, 346; favors two-thirds vote to override president's negative, 361; urges members to sign constitution, 394. hamilton plan, presented, i., 152; provisions of, 162; text of, 164, n. house of representatives. _see_ legislature, national, house of representatives. houston, william, ga., attends convention, i., 49; moves increase in representation of georgia, 325; opposes continuance of existing state constitutions, 391; favors additional representation of electors for new hampshire and georgia, ii., 10; moves consideration of appointment of executive by electors, 39; pierce's sketch of, 39, n.; moves election of executive by national legislature, 40. houstoun, william churchill, n.j., attends convention, i., 1. i impeachment, of executive. _see_ executive, national, impeachability of; legislature, national, senate. of judiciary. _see_ judiciary, national, impeachment of. of national officers, provision for, struck out, i., 389; to be suspended during trial, ii., 270. trials of, debated, i., 384, 385, ii., 259, 260, 297, 338. imports, power of states to tax, debated, ii., 264, 330; duties on, uniformity of, agreed to, 291, 372. indians, power to legislate for, proposed, ii., 226. ingersoll, jared, pa., attends convention, i., 5; considers signing to be recommending constitution, ii., 396; pierce's sketch of, 396, n. insurrections, power to suppress. _see_ republican government, guaranty of. j jackson, william, nominated for secretary of convention, i., 3; elected, 4. jay, john, writes washington against foreigners, ii., 48, n. jefferson, thomas, monroe to, ii., 56, n.; madison to, 126, n., 320, n. jenckes, john, signs address from rhode island, i., 2, n. jenifer, daniel, of st. thomas, md., attends convention, i., 55; favors three years' term for representatives, 124; pierce's sketch of, 124, n.; favors ineligibility of representatives to other offices, 223; moves postponement of question of voting in senate, 225; favors requirement that vessels must enter and clear in their own states, 295. jersey plan, the, submitted, i., 138; text of, 139; vote on, 185. jews, letter of, i., 323, n. johnson, william samuel, conn., attends convention, i., 55; suggests compromise between virginia and jersey plans, 200; pierce's sketch of, 200, n.; favors elections to senate by state legislatures, 234; favors representation by states in senate, 261; favors inclusion of blacks in basis of representation, 342; thinks treason should be defined, ii., 204; thinks there can be no treason against a state, 205; on committee on navigation acts, 225; thinks prohibition of _ex post facto_ laws unnecessary, 228; thinks double control of treaties difficult, 239; thinks judiciary will decide controversies between states, 241; thinks obligations of old government binding on new, 249; suggests judiciary have power over equity cases, 256; moves extension of judicial power to cases arising under the constitution, 259; thinks acts of one state valid in courts of another state, 267; on committee on interstate acts, 268; thinks states cannot be dismembered, 276; moves admission of states hereafter formed, 278; thinks legislature may declare effect of state acts in states, 293; appointed on committee on style and arrangement, 338; submits report, 347; favors provision for sumptuary legislation, 366; on committee on sumptuary legislation, 366; offers further report of committee on style and arrangement, 368. jones, joseph, writes to madison, ii., 366, n. journal of legislature's proceedings. _see_ legislature, national, journal of, house of representatives, senate. journals of convention, disposition of, ii., 396, 397. judiciary, national, supreme, agreed to, i., 75; consideration of, postponed, 130; debated, 384. appointment to, debated, i., 76, 130, 136, 384, ii., 25; by legislature, vote on, i., 78; by senate, agreed to, 132; by executive, vote on, 386, ii., 29; by executive with consent of senate, debate on, i., 385; exclusion from, of those indebted to government, ii., 61, 235. compensation of, fixed, agreed to, i., 375; power to increase, vote on, 387; debated, ii., 258. impeachment of, trial by senate proposed, ii., 227. impeachment, power of, struck out, i., 388; debated, ii., 260. inferior tribunals, debate on instituting, i., 81, 83, 84, 387, 388, ii., 184; power of legislature to refer cases to, struck out, 260. jurisdiction of, debated, i., 129, 130, 136, 388, ii., 227; over controversies between states, debated, 241; to cases in equity proposed, 256; over controversies in which united states is a party, debated, 259; to cases arising under the constitution, debated, 259; appellate, debated, 259, 260; to be directed by legislature, proposed, 260; extension of, to land grants proposed, 261; to land claims, 281, 282; to impeachment trials proposed, 335, 336. negative of, inclusion with executive proposed, i., 69, 75, 91, 93; over state laws, debated, 374; debated, ii., 174, 256. revisionary power of, debated, i., 69, ii., 17, 175. state, power of, over national laws, debate on, 372; will be bound by national laws, 374. tenure of, i., 76, 385, ii., 256. jury trial, right of, provided for, ii., 261; in civil cases debated, 363; motion to preserve, 367. k king, rufus, mass., attends convention, i., 1; objects to report of committee on rules, 5; pierce's sketch of, 5, n.; opposes representation by quotas of contributions, 36, 115; notes of proceedings of convention, 39, n.; opposes election of senators by state legislatures, 44; opposes inclusion of judiciary in council of revision, 69; favors ratification of constitution by conventions, 81; moves question of proportional representation, 115; thinks senate should have power to originate money bills, 133; opposes sovereignty of the states, 186, 285; insists upon election of representatives by the people, 206; favors national compensation for representatives, 211; opposes ineligibility of representatives to other offices, 214, 219; thinks new hampshire deputies will attend, 272; favors proportional representation in senate, 281, 357; thinks representation cannot be permanently fixed, 360; on committee on question of representation, 307; thinks slaves should count in representation, 322; brings in report of committee on representation, 323; thinks representation of the south too large, 323; defends report on representation, 323; opposes inclusion of three-fifths of blacks in representation, 338; opposes representation by population, 345; opposes ineligibility of executive to re-election, ii., 5, 42; opposes short term for executive, 9; opposes impeachability of executive, 13, 15; favors ratification of constitution by legislatures, 35; moves voting in senate per capita, 37; favors election of executive by state legislatures, 42; proposes term of twenty years for executive, 43; opposes election of executive by electors chosen by lot from legislature, 47; opposes freehold qualification for electors, 61; thinks legislature need not meet annually, 93; thinks representation should exclude slaves, 110; opposes leaving time and mode of election of representatives to state legislatures, 128; thinks less than a majority should be a quorum of legislature, 133; thinks lowest number for a quorum may be fixed, 134, 135; thinks legislature should not have power to change place of meeting, 139; thinks state debts should be assumed by nation, 192, 193; thinks state lands ought to be given up, 193; appointed on grand committee, 193; thinks states may punish treason under a different name, 205; thinks national government should punish for treason, 206; thinks treason against a state same as against nation, 207; thinks slaves should be taxed, 223; on committee on navigation acts, 225; explains provisions as to militia, 230; admits duty on slaves part of compromise agreement, 251; moves to prohibit states from violating private contracts, 263; moves to prohibit states from taxing exports, 266; thinks states should regulate their own manufactures, 265; thinks all the states must ratify constitution, 285; moves that only states ratifying be operated on by constitution, 285; thinks constitution must be ratified by conventions, 286; thinks state constitution no bar to ratification, 287; on committee of august 31, 292; moves ineligibility of members of legislature to offices created during their term, 295, 296; moves to obtain consent of state legislatures to purchases of lands for national purposes, 306; thinks eventual election of president will be with senate, 311; moves that electors be not office-holders, 312; favors change of clause relative to re-election of president, 313; moves increase of number necessary to elect president, 319; thinks senate may share in appointments, 328; objects to participation of two-thirds of senate in treaties, 329; opposes special provision for treaties of peace, 332; moves special provision for treaties affecting national rights, 332; thinks old congress should consider constitution, 336; on committee of style and arrangement, 338; thinks old congress need not sanction constitution, 345; thinks president ought not to be suspended if impeached, 370; thinks legislature should choose treasurer, 371; thinks power to grant charters unnecessary, 373; thinks publication of public expenditures impossible, 376; opposes change in representation, 378; thinks executive may pardon for treason, 382; thinks guaranty of jury trials not necessary, 384; urges additional representation, 392; proposes journals of convention be disposed of, 396. knox, general henry, writes to washington on prospects of convention, ii., 158, n. l land cession, question of, i., 232. lands, public. _see_ legislature, national, power of. langdon, john, n. h., attends convention, ii., 29; opposes disqualification from legislature of persons having unsettled accounts, 64; pierce's sketch of, 64, n.; opposes prohibition against placing national capital at state capital, 66; favors national compensation of legislature, 167; opposes power to emit bills of credit, 183; favors suppression of rebellion without state's consent, 187; appointed on grand committee, 193; thinks representatives must be trusted, 195; thinks national control of militia necessary, 196; opposes taxation by congressional representation, 208; asks only fair representation for new hampshire, 212; objects to state power to tax exports, 213, 214; opposes leaving slave trade to states, 223; moves to commit question of navigation acts, 225; on committee on navigation acts, 225; thinks state and national governments need not be jealous, 231; favors national power of negative on state laws, 237; thinks executive should be elected by joint ballot of legislature, 243; thinks creditors of government should not be disturbed, 248; admits duty on slaves is part of compromise agreement, 251; on committee of august 25, 254; doubts if new states should be admitted on an equality with old, 275; thinks new states may be created, 276; thinks vermont should be brought into the union, 276; thinks vessels should not be made to enter and clear in their state, 291; objects to export duties by states, 365; moves increase in representation of north carolina and rhode island, 378; thinks commercial regulations should be national, 381. lansing, john, n. y., attends convention, i., 55; pierce's sketch of, 138, n.; supports jersey plan, 143; opposes virginia plan, 194; opposes legislature of two branches, 190; favors voting in house by states, 252; leaves convention, 298, n. legislature, national, acts of, may originate in both houses, i., 248, ii., 170; enacting style, 170. compensation of members, considered, i., 125, 209, 244, 245; to be fixed, 126; and eligibility to re-election, debated, 130; to be ascertained by members, 212; by state legislatures, 213; vote on, 217; agreed to, 336; debated, ii., 166, 169. constitution of, considered, ii., 8; agreed to, 96. disqualification of debtors from, debated, ii., 63, 65, 66; of pensioners from, 65; of persons having unsettled accounts with, 65; of members from other offices, 158, 294, 297, 371. elections to, by popular vote, debated, i., 53; mode of, debated, 81, 134; eligibility to re-election, debated, 127; eligibility of state officers to, 127. expulsion from, debated, ii., 135, 136. journal of proceedings, debate on, ii., 136, 137, 370. money bills in, originating of, debated, i., 309, 312, ii., 149, 153, 157, 210, 212. negative of, on state laws, considered, i., 47, 101, 107, 372, 374; on acts of executive, vote on, ii., 95; debated, 361; verbal amendment offered, 367. place of meeting, debated, ii., 139. power of, debated, i., 45, 135, 366, ii., 177; coercion on delinquent states, i., 47; to legislate where states not competent, i., 47, 371, 372; over state police, 370, 371; over state judiciary, 374, 375; members of, in debate, ii., 135; expulsion of members of, ii., 135; to compel attendance of members, ii., 135; to judge of elections of members, ii., 135; to adjourn, 138; limits of, debated, 172, 173; to regulate captures, debated, 184; over indians, debated, 226; over general welfare, proposed, 226; to pass _ex post facto_laws and bills of attainder, prohibited, 227, 375; to fulfil engagements of old congress, debated, 229, 237; over militia, debated, 230, 235; to enforce treaties, debated, 235; negative on state laws, debated, 236; to pass tax laws, debated, 241, 371; to pay public debts, debated, 247, 297; to regulate ports of entry, 252; to refer appointments to state legislatures, 254; to pay debts with anything but coin, debated, 262; report of committee of eleven taken up, 269; over public lands, proposed, 280, 282; to make national bankruptcy law, debated, 293; to judge privileges of members, 304; to grant letters of marque and reprisal, 304; to govern seat of government, 305; to grant copyrights, 305; to create offices, proposed, 338; to appoint treasurer, debated, 371; to punish piracies, etc., debated, 372; to make canals, proposed, 373; to grant charters, proposed, 373; to establish a university, proposed, 374; to be limited in providing for standing army, 375. property qualifications for members of, debated, ii., 59, 63, 128, 132, 147. qualifications for members of, debated, i., 42, ii., 131. quorum in, debated, ii., 132, 135, 177. representation in, debated, i., 36, 109, 114, 120, 134, 232, 302, 327, 331, 338, 341, 342, ii., 110, 114; compromise proposed, i., 114; enumeration of blacks and whites, debated, 258, 338, 340, 344, 346, 347, 350; question postponed, 318; referred to committee, 322; report of committee, 322; motion to increase, debated, 325; census for, debated, 328, 338, 340, 341; taxation as basis of, debated, 342, 347, 348, 371; moved that, of large states be limited, 378; increase of, debated, ii., 318, 323, 393. rules to be regulated by each house, ii., 170. term of members of, debated, i., 126. time of meeting, debated, ii., 93, 94, 95. two branches of, agreed to, i., 39, 134; debate on, 190, 199, 204. house of representatives, mode of election to, debated, i., 39, 40, 42, 84, 91, 204, 224; classification of states to determine representation in, proposed, 106; term of members, debated, 124, 126; age for members, debated, 125, 213, 214; elections to, by state legislatures, proposed, 206, 247; three years' term in, proposed, 207, 209; eligibility of members to other offices debated, 214, 217, 218, 223, 224, ii., 292; committee report on representation in, i., 318, 319; constitution of, debated, ii., 96, 301; who may vote for members of, debated, 106; seven years' citizenship for members of, proposed, 107, 131, 132; qualifications for members of, debated, 107; clause relative to, agreed to, 110; money bills to originate in, debate on, 115, 305, 337; power of impeachment of, agreed to, 116; time and mode of election to, debate on, 126, 128; power of, over elections in states, debated, 128; citizenship and residence for members, debated, 144, 145; four years' citizenship for members of, proposed, 145; nine years' citizenship for members of, proposed, 145; citizenship requirements not to apply to those already citizens, 145, 148; five years' citizenship for members of, proposed, 148; clause for citizenship and age of members agreed to, 148; representation by direct taxation, debate on, 151; power to make bankruptcy laws, proposed, 292; power of, to make treaties, proposed, 327; increase in representation in, proposed, 339; moved to strike out apportionment by "direct taxes," 367; proposed that all journals of, be printed, 371. senate, mode of election to, debated, i., 43, 233, ii., 116; to be a check on democracy, i., 44; election to, by state legislatures, debated, i., 44, 94, 101, 236; elections to, by the people, debated, 100; mode of voting in, debated, 121, 234, 248, 309, 313, 347; age for members of, debated, 127, 236; term of members of, debated, 128, 130, 236, 237, 243; compensation of members of, debated, 130, 244, 246, 247; originating money bills in, debated, 132, 134, 355; representation in, debated, 235, 236, 356, 364, 367, 368, 369, ii., 37, 304; property qualification for members of, debated, i., 246; eligibility of members of, to state offices, considered, 246; eligibility of members of, to any offices, considered, 297; voting in, by states, debated, 314; citizenship for members of, debated, ii., 124, 125; age and citizenship for members of, debated, 126, 148; moved that members of, be permitted to enter dissent to measures, 136; moved that journal of, be published, 136; choosing officers of, agreed to, 180; power of appointment by, 235, 238; treaty-making power of, debated, 238, 240; power of, to appoint ambassadors, etc., considered, 240; power of, in controversies between states, considered, 241; power to try impeachments, proposed, 298; power of, objected to, 315; to vote on president, 318; power of, in treaty making, debated, 327, 329; in appointments, 328; quorum of, debated, 335; power of, in impeachment of president, debated, 335, 336; power of, to amend money bills, 337; to be under oath in impeachment trials, 338. letters of marque, power to issue, debated, ii., 191. liberty of the press, guaranty of, proposed, ii., 375. livingston, william, n. j., attends convention, i., 96; appointed on grand committee, ii., 193; pierce's sketch of, 209, n.; delivers report on state debts and militia, 209; on committee on navigation acts, 225; submits report on slave importation and navigation acts, 240; on committee on sumptuary legislation, 366. m madison, james, va., attends convention, i., 2; moves question of representation in legislature, 36; pierce's sketch of, 36, n.; favors proportional representation, 36, 38, 253; favors election to house by popular vote, 41, 86; opposes district elections to senate, 44; opposes defining powers of national legislature, 47; opposes use of force against recalcitrant states, 47; moves consideration of powers of executive, 52; opposes removability of executive on motion of state legislatures, 63; favors qualified negative of executive on legislation, 71; favors inclusion of judiciary with executive in negative on legislation, 75, 91; opposes appointment of judges by legislature, 77, 131; favors ratification of constitution by popular vote, 80, ii., 36; favors creation of inferior judicial tribunals, i., 83; opposes elections to senate by state legislatures, 99; favors a small senate elected by the people, 96; favors negative by national legislature of state laws, 102, 106, 373; favors three years' term for representatives, 124; favors national compensation of members of national legislature, 125, 212; favors seven years' term for senators, 128; moves to define jurisdiction of judiciary, 130; thinks senate should have power to originate money bills, 133; opposes jersey plan, 167; thinks national government in danger from state governments, 202; opposes annual elections of representatives, 208; favors compensation of representatives by fixed standard, 211; favors ineligibility of representatives to other offices, 218; favors partial ineligibility of representatives to other offices, 221; moves debate on mode of voting in senate, 235; sets forth objects of senate, 238; opposes compensation of senators by state legislatures, 345; opposes equal state representation, 264, 276, 357, 363; would preserve state rights, 282; opposes compromise committee on representation in senate, 292, 296; thinks question of representation vital, 315; suggests representation by free population in house and by free and slaves in senate, 321; moves increase in representation of all states, 325; thinks basis of representation should be fixed, 335; favors census at least every fifteen years, 340; favors adjustment of taxation to representation, 348; favors independence of executive, 380; thinks tendency is to give executive too little power, 382; favors appointment of judges by executive and one-third of senate, 385; moves appointment of judges by executive and two-thirds of senate, 387; objects to power to increase judges' salaries, 388; favors continuance of old congress to prevent interregnum, 390; favors national guaranty against domestic violence, 391; favors election of executive by the people, ii., 6; favors varying ratio for electors to choose executive, 10; favors impeachability of executive, 12; seconds motion to include judiciary in revisionary power, 18, 22; moves appointment of judges by executive and senate, 26; is willing to allow a majority of senate to reject appointment of judges, 28; speaks on mode of election of executive, 49; thinks each voter may vote for two persons for executive, 54; thinks persons indebted to government should be excluded from legislature, 60; moves that property qualification be not confined to landed property, 62; opposes mutual negative of each branch of legislature over acts of the other, 92; suggests that time of meeting of legislature be not fixed in constitution, 92, 93; favors fixing time of meeting of legislature provisionally, 94; favors changing time of meeting of legislature from december to may, 95; favors power of suffrage by freeholders, 99; views on suffrage, 100, n.; favors requiring representatives to be inhabitants of their states, 107; opposes proposition that representatives be required to reside seven years in their states, 108; objects to fixed ratio of representatives to inhabitants, 111; moves representation of not more than 1 to 40,000 inhabitants, 136; opposed to originating money bills in house, 116; moves that vacancies in senate must happen by refusals, resignations, etc., 117; thinks provision as to money bills valueless to large states, 118; opposes fourteen years' citizenship as necessary for senators, 121; opposes leaving time and mode of electing representatives wholly to state legislatures, 126; writes to jefferson on progress of the convention, 126, n.; thinks property qualification for members of government should be fixed in constitution, 130, 131; moves that expulsion from legislature be by two-thirds vote, 135; moves legislature have power to compel attendance, 135; moves that senate shall publish its legislative journal, 137; insists upon central location for capital, 139; thinks legislature should not have power to change place of meeting, 138; writes to his father, 142, n.; thinks citizenship and inhabitancy alone necessary for representatives, 144; thinks government responsible for what states have done, 146; thinks senate may decrease money bills, 152; thinks constitution should regulate compensation of legislature, 167; moves that laws be revised by executive and judiciary, 172; thinks power to tax exports desirable, 176; opposes power to emit bills of credit, 181; thinks punishment of piracies, etc., ought not to be fixed by legislature, 184; moves that legislature define piracies, etc., 185; moves that rebellion to be suppressed be against government, 187; moves to give legislature power to declare war, 188; submits power over public lands, indians, seat of government, charters, copyrights, university, forts, 189; favors national control of militia, 197; moves power to create offices in legislature, 203; thinks treason should be broadly defined, 203, 204; thinks treason may be against nation and a state, 205; thinks treason should not be twice punishable, 207; thinks present representation temporary, 211; favors power to tax exports, 215; favors taxation of exports by two-thirds legislature, 217; on committee on navigation acts, 226; thinks new government should have power to fulfil engagements of old government, 229; explains provisions as to militia, 230; favors national control of militia, 232; proposes states appoint militia officers under rank of general, 233; thinks disunion the greatest danger, 234; moves to commit question of negative of state laws, 236; moves to include president in treaty-making power, 238; suggests inconvenience of legal ratification of treaties, 238; suggests varying participation of legislature in different treaties, 240; thinks larger states should have larger vote in election of executive, 244; moves extension of appointing power of executive, 246; opposes slave-trade extension, 250; opposes admitting property in men in constitution, 252; moves that treaties be supreme law, 252; thinks president of senate should not be in executive succession, 256; moves amendment to oath of executive, 256; favors fixed salaries for judges, 258; proposes salaries of judges be not changed for three years, 258; moves judiciary have jurisdiction over cases in which u. s. is a party, 259; thinks judicial power should not extend to all cases under constitution, 259; moves verbal change in judiciary clause, 260; thinks states should not have power to interfere in private contracts, 263; thinks retrospective laws are prohibited, 263; moves states be forbidden to pass embargoes, 264; moves to forbid states to lay imposts, 264, 265; objects to imposts by states, 266; favors committing clause on state acts, 267; thinks commercial regulations not injurious to south, 272; thinks western states entitled to an equality with others, 274; opposes guaranty of public lands, 281; thinks constitution may go into operation without a majority in favor, 284; moves ratification by seven states and thirty-three representatives, 285; thinks ratification conventions necessary, 286; thinks it inconvenient if vessels must enter and clear at their own ports, 291; on committee of august 31, 292; offers amendment strengthening interstate validity of state acts, 293; fears election of president will be thrown on senate, 300; doubts if legislature should judge of privileges of its members, 304; thinks legislature should not participate in electing president, 309; proposes that election of president may be by one-third of whole number of electors, 310; moves that electors not voting be not counted, 311; moves that two-thirds senate be present when voting for president, 318; shows president may be elected by two states, 319; moves that election of president by legislature when vice-president also dies be temporary, 323; seconds motion that no state vote for president in legislature by less than three representatives, 325; thinks some cure required to prevent minority in legislature electing president, 325; proposes treaties of peace be by majority of senate, 330; proposes two-thirds senate make treaties of peace without president, 330; favors executive council, 332; thinks treaties have been too easily made in past, 334; moves quorum of senate be two-thirds, 406; thinks impeachment of president should not be on vague grounds, 335; moves supreme court try president, 335; seconds motion to increase representation, 339; thinks clause relative to amendments should be reconsidered, 340, 341; favors three-quarter vote to override president's negative, 363; favors state export duties, 365; thinks supreme court can negative state laws, 365; moves verbal amendment to clause relative to negative of bills, 368; moves words "by lot" be struck out for classifying senators, 369; thinks president ought not to be suspended when impeached, 370; favors national charters where states are incompetent, 372; moves power to establish university, 374; favors limiting standing army, 374; moves public accounts be published from time to time, 376; writes to j. q. adams, 378, n.; favors national control of commercial regulations, 380; thinks senate may participate in pardons for treason, 382; thinks superior officers may make appointments, 383; thinks legislature may propose amendments, 385; opposes special provisos in constitution, 386. madison, rev. james, of william and mary, writes to james madison on prospects of convention, ii., 75, n. manufactures, encouragement of, by imposts, debate on. ii., 264, 265; regulation of, debated, 265. marque and reprisal, letters of, power to grant, proposed, iv., 366. martin, alexander, n. c., attends convention, i., 2; insists upon equal power of states, 188; favors elections of representatives regulated by state legislatures, 204; favors ineligibility of representatives to other offices, 218; pierce's sketch of, 218, n.; on compromise committee on representation, 292; moves increase in representation of north carolina, 325; opposes fixing national capital at same place with a state capital, ii., 66; seconds motion for commercial regulations, 269. martin, luther, md., attends convention, i., 107; opposes oath from state officers to national government, 123; pierce's sketch of, 189; opposes legislature of two branches, 195; wishes to preserve state governments, 248, 250; insists on state sovereignty, 268, 287; favors two confederacies if states cannot have equal vote in senate, 356; opposes national negative on state laws, 373; moves that national laws be binding on state judiciary, 374; favors election of executive by electors chosen by state legislatures, 378; moves to consider question of re-eligibility of executive, 383; favors appointment of judges by senate, 384; opposes creation of inferior judicial tribunals, 384; opposes power in national government to suppress rebellion in states, 391; moves ineligibility of executive to re-election, 8, 42; opposes inclusion of judiciary in revisionary power, 21; opposes voting in senate per capita, 38; favors disqualification from legislature of debtors to government, 64; moves eleven years' term for executive, 43; favors state compensation of senate, 169; asks definition of "duties" and "imposts," 176; opposes power to subdue rebellion in a state without its consent, 186; favors provision against large army in time of peace, 195; moves treason be punishable on confession, 208; proposes direct taxation by quotas from states, 212; moves that states be permitted to tax migration of slaves, 218; on committee on navigation acts, 225; favors state control of militia, 232; moves clause to prevent discrimination in ports of entry, 252; moves to restrict executive power of pardoning, 255; withdraws motion, 255; opposes requiring large states to consent to forming new states, 275; opposes admission of new states by two-thirds vote, 275; favors committing motion to require consent of states to dismemberment, 277; thinks new states should be formed without consent of old states, 279; moves that land claims be examined by supreme court, 282; moves guaranty of domestic tranquillity on state executive's application, 283; insists upon ratification by state legislatures, 289; thinks the people will not vote for constitution, 289. mason, george, va., attends convention, i., 2; objects to report of committee on rules, 6; pierce's sketch of, 6, n.; thinks government should operate on individuals, 34; favors seven years' term for executive, 54; favors election of executive by the people, 55; opposes subordinating executive to legislature, 63; opposes single executive, 72; favors election of representatives by the people, 86, 205; favors separation of purse from sword, 93; favors election of senators by state legislatures, 100; favors provision for amendments to constitution, 122; favors national compensation of representatives, 126; favors two branches of legislature, 192; favors biennial elections of representatives, 208; moves that representatives be at least twenty-five years of age, 213; favors ineligibility of representatives to other offices, 215, 222; opposes ineligibility of representatives to other offices, 218; favors representation in senate by states, 235; favors property qualification for senate, 246; on compromise committee on representation, 292; supports report of compromise committee on representation, 302; moves to refer question of voting in senate to committee, 308; thinks money bills should originate in house, 309, ii., 115, 118; favors an increase in representation, i., 326; favors representation based on population, 329; thinks slaves should have proportion in representation, 332; thinks legislature ought not to fix representation, 334; thinks constitution ought to fix representation, 338; thinks taxation should be according to representation, 344; opposed to direct taxation proportioned to number of representatives, 349; opposes election of executive by the people, 377; opposes election of executive to serve during good behavior, 381; opposes appointment of judges by executive, 384, ii., 28; favors institution of inferior judicial tribunals, i., 389; favors guaranty of republican government to the states, 391; favors impeachability of executive, ii., 11; favors inclusion of judiciary in revisionary power, 19, 23; thinks constitution should be ratified by the people, 31; opposes three senators from each state, 38; favors election by legislature of executive for not more than six years in twelve, 52; moves seven years' term and ineligibility for executive, 59; proposes property qualification for legislature, 59; moves to exclude from legislature debtors to united states, 59; moves that national capital be not at a state capital, 66; withdraws the motion, 67; doubts propriety of mutual negative of each branch of legislature on the other, 91, 92; thinks time of meeting of legislature should not be fixed by constitution, 94; thinks suffrage question should be left to the states, 97; favors free general suffrage, 98; thinks seven years' citizenship should be required of representatives, 107; moves that representatives be required to be inhabitants of their states for one year, 109; favors postponing question of voting in senate, 118; favors postponing question of originating money bills, 120; thinks aliens should not be in legislature, 121; thinks quorum in legislature should be a majority, 133; approves expulsion from legislature by two-thirds vote, 135; thinks yeas and nays should be required, 136; thinks publication of journal of legislature necessary, 138; thinks government not bound by state laws on naturalization, 149; thinks first money bills should originate in house, 149; moves to allow members of legislature to hold any office, 159; thinks representatives should be independent of state legislatures, 168; thinks revenue bills should originate in house, 170; thinks senate may alienate territory, 171; moves that no tax be laid on exports, 179; favors power to emit bills of credit, 181, 183; favors appointment of treasurer by legislature, 184; thinks punishment may be fixed in cases of piracy, etc., 184; opposes giving power of war to executive, 188; thinks general government should regulate militia, 190; thinks funds may be diverted in time of war, 191; appointed on grand committee, 193; favors partial national control of militia, 195, 196; favors power to make sumptuary laws, 202; thinks treason may be against a state, 205; thinks treason should be defined, 208; calls up amendment as to money bills, 211; thinks states should retain power over exports, 216; denounces slavery and slave trade, 219; asks how legislature can negative state laws, 231; objects to compelling settlement of old debts, 347; opposes naming slave-importing states, 250; thinks tax on importation of men necessary, 252; on committee of august 25, 254; moves amendment to executive's oath, 256; thinks judges' salaries should be fixed, 258; thinks states may interfere in private contracts, 263; thinks states may lay embargoes, 264; thinks states may wish to encourage industries by imposts, 265; thinks two-thirds vote necessary for commercial regulations, 271; thinks western people should be treated with equality, 274; thinks nine states may ratify constitution, 288; declares he will not sign constitution, 289; approves amendment relative to interstate validity of state acts, 293; thinks members of legislature should not hold other offices, 296; thinks president will usually be chosen by senate, 301; thinks election of president by electors objectionable, 308; thinks president may be elected by minority, 309; moves that senate choose president from three highest candidates, 311; thinks system of electors autocratic, 312; prefers eventual election of president by house of representatives, 318; approves increasing number for quorum to elect president, 319; thinks vice-president will encroach on senate's rights, 326; favors an executive council, 331; moves to extend reasons for impeaching president, 335; moves to postpone motion for second convention, 347; thinks two-thirds vote may override president's negative, 362; thinks bill of rights necessary, 364; moves states may levy export duties, 364; moves clause for sumptuary laws, 366; on committee on sumptuary legislation, 366; favors state tax on exports, 367; moves publication of all proceedings of house, 370; favors power to cut canals, 373; opposed to standing armies, 374; moves to strike out prohibition of _ex post facto_ laws, 375; moves verbal amendment to capitation tax clause, 375; moves annual publication of expenditures, 376; thinks states may lay tonnage dues, 380; thinks president should not have power to pardon for treason, 382; thinks legislature should have pardoning power for treason, 382; disapproves provision for amendments, 385; objects to navigation acts by majority, 387; announces he cannot sign constitution, 387; refuses to sign, 398. mcclurg, james, va., attends convention, i., 2; moves that term of executive be for good behavior, 379; insists upon necessity for independence of executive, 382; pierce's sketch of, ii., 16, n.; suggests ascertaining how executive is to act, 16; writes to madison, 75, n., 91, n., 236, n., 340. n. mchenry, james, md., attends convention, i., 5; pierce's sketch of, ii., 167, n.; appointed on grand committee, 193; thinks direct taxation should be by quotas from states, 213; thinks embargo power embraced in war power, 215; moves prohibition of _ex post facto_ laws or bills of attainder, 227; proposes plan for choosing ports of entry, 253; moves judges receive fixed salaries, 258; thinks maryland must ratify according to her law, 287; thinks vessels will take officers as security of entry dues, 291; moves president have power to convene either house of legislature, 338; moves states may lay tonnage dues, 380. mercer, john francis, md., attends convention, ii., 75; opposes election of representatives by the people, 105; opposes whole plan of constitution, 106; thinks the people ought to be guided in their voting, 107; suggests that candidates for representatives be nominated by state legislatures, 107; opposes requirement of seven years' residence of representatives in their states, 108, 109; thinks senate should have power to originate money bills, 115; thinks less than a majority should be quorum of legislature, 132; seconds motion to fix quorum at few, 134; thinks senate should have only legislative power, 137; thinks two houses will not agree on place of meeting, 140; thinks provisions as to citizenship should not apply to those now citizens, 145; thinks government bound by state laws on naturalization, 148; thinks aristocracies will arise, 160; fears good men will not serve in legislature, 165; thinks senate ought not to make treaties, 171; thinks judiciary should not be included in revisionary power, 172; opposes taxing exports, 182; declares himself friendly to paper money, 182; favors appointment of treasurer by executive, 184; favors defining of piracies, felonies, etc., 185; opposes power to subdue rebellion without request of state legislature, 186. mifflin, thomas, pa., attends convention, i., 5; seconds motion that acceptance of other office shall vacate seat in legislature, ii., 159; pierce's sketch of, 159, n. militia, power of regulating, debated, ii., 191, 195; report on, command of, debated, 255. _see_ legislature, national, power of. money bills, originating of. _see_ legislature, national, money bills, house of representatives, senate. monroe, james, to jefferson, on prospects of the convention, ii., 56. n. morris, gouverneur, pa., attends convention, i., 1; offers address from citizens of rhode island, 8; pierce's sketch of, 8, n.; objects to committee on minutes, 13; moves question of federal or national government, 32; explains difference between federal and national government, 34; favors compromise committee on question of representation, 287; favors election of senators for life, 287; opposes report of compromise committee on representation, 298; thinks representation should be according to wealth, 303, 319; thinks representation should not be definitely fixed, 304, 334; on committee on representation question, 307; favors originating money bills in both houses, 309, 310; opposes equal representation of small states, 316; submits report on representation in house, 318; favors referring question of representation to committee, 320; moves consideration of question of fixing representation, 320; favors property and population as basis of representation, 324; thinks southern states sufficiently represented, 324; objects to requiring legislature to take census, 328; fears preponderance of western states, 328; opposes inclusion of slaves in basis of representation, 332, 340, 350; moves that taxation be according to representation, 341, 342, 348; thinks legislature should adjust basis of representation, 343; moves reconsideration of question of representation in senate, 370; opposes taxation by quotas, 371; opposes forbidding national government to interfere with state police, 371; favors power in legislature where harmony would be disturbed by state legislation, 372; opposes negative of state laws by legislature, 372, 374; thinks judiciary will have power to set aside laws, 374; favors election of executive by the people, 375, 376; opposes ineligibility of executive, 379; favors election of executive during good behavior, 379; disclaims friendliness to monarchy, 382; favors appointment of judges by executive, 384; thinks impeachment trials should not be before the judges, 385; favors appointment of judges by executive with consent of senate, 387; favors power to increase judges' salaries, 387, 389; favors institution of inferior judicial tribunals, 389; opposes continuance of old congress, 390; opposes guaranteeing existing laws to the states, 390; favors a vigorous executive, ii., 1; favors re-eligibility of executive, 3, 58; favors short term for executive, 9; thinks executive ought not to be impeachable, 11; admits executive ought to be impeachable in some cases, 12, 15; moves that electors for executive be not officials, 15; thinks revisionary power requires more than the executive, 20; thinks judiciary and executive may exercise revisionary power jointly, 24; favors appointment of judges by executive, 27; favors ratification of constitution by the people, 35; moves that voting in senate be per capita, 37; moves ratification of constitution by a general convention, 37; moves that there be three senators from each state, 37; opposes election of executive by members of national legislature chosen by lot, 44; opposes election of executive by national legislature, 45; opposes apportionment of direct taxation by representation, 47; favors election of executive by the people, 53; thinks each voter for executive may vote for two persons, 54; opposes property qualification for members of legislature, 60; thinks debtors of government need not be excluded from legislature, 60, 65; seconds motion to strike out "landed" property as requirement in executive, 63; opposes prohibiting national capital at state capital, 66; moves to restrict mutual negative of each branch of legislature on the other to legislative acts, 91; thinks treaties are not laws, 92; moves to strike out provision for time of meeting of legislature, 93; moves to change time of meeting of legislature from december to may, 94; favors absolute negative in executive on legislature, 95; moves restriction of suffrage to freeholders, 96; thinks suffrage should be fixed by legislature, 96; thinks general suffrage will produce aristocracy, 98; favors seven years' citizenship for representatives, 127; opposes requirement that representatives be residents of their states, 108; moves that representation be by free population, 112; opposes slavery and the slave trade, 112; thinks senate should have right to originate money bills, 115, 152; agrees that vacancies in senate must be by refusals, resignations, etc., 117; favors equal vote in senate, 119; moves fourteen years' citizenship for senators, 120; opposes admission of aliens into government, 123; moves that state legislatures fix time and mode of electing representatives, 126; opposes leaving time and mode of electing representatives exclusively to state legislatures, 128; moves to strike out property qualification, 131; moves to fix quorum at few, 133; thinks any member may call for yeas and nays, 135; thinks majority may expel from legislature, 135; thinks citizenship requirements ought not to apply to those already citizens, 145, 147; thinks members of legislature may hold some other offices, 162, 166; thinks members of legislature may serve in army and navy, 166; favors national compensation of legislature, 167; thinks revenue bills need not be confined to house, 171; thinks some check on legislative acts necessary, 173; moves that executive power of negative extend to resolutions, 176; thinks exports may be taxed, 178, 179; opposes power to emit bills of credit, 181; thinks legislature should punish counterfeiting, 184; moves that legislature punish piracies, etc., 185; thinks legislature should designate piracies, etc., 186; thinks legislature should have power to subdue rebellions, 186; opposes inclusion of executive in power to subdue rebellions in states, 186; thinks power to subdue rebellions necessary, 187; submits propositions for committee of the whole, 200; opposes power to make sumptuary laws, 202; thinks treason should be defined, 203, 204; moves british statute for treason, 205; thinks treason should not be twice punishable, 207; thinks debts should be adjusted with taxation, 210; favors power to tax exports, 214; moves slave-trade question be committed, 224; thinks prohibition of _ex post facto_ laws unnecessary, 227; favors prohibiting bills of attainder, 227; moves new government discharge engagements of old government, 229; moves that senate shall not have power of appointment, 235; moves that power to enforce treaties be not specified, 285; moves clause giving power over militia, 235; thinks national appointment of state executives should be committed, 237; doubts if treaties should be referred to senate, 238; suggests that treaties will be negotiated in this country, 239; opposes election of executive by legislature, 244; moves election of executive by electors, 245; moves executive be required to make recommendations to legislature, 246; objects to state power to appoint federal officers, 247; thinks debts of old government should be paid by new government, 249; moves that slave-importing states be named, 250; withdraws motion, 251; thinks freemen may be taxed, 252; seconds motion to make treaties supreme law, 252; moves that executive have power to correspond with states, 254; moves chief justice succeed as executive, 255; objects to removability of judges upon legislature's application, 257; moves judicial power extend to cases in which u. s. is party, 259; asks what is appellate power of judiciary, 259; moves verbal change in judiciary clause, 259; opposes power to suspend habeas corpus except in emergency, 261; opposed to forbidding states to interfere in private contracts, 263; thinks prohibiting embargoes by states unnecessary, 264; thinks states should not tax exports, 266; favors commercial regulations, 270; moves interstate validity of acts of states, 268; opposes admission of western states on an equality, 275; does not wish power to pass to western states, 275; proposes method of admitting new states, 275; opposes admission of new states by two-thirds vote, 275; thinks states must consent to division, 277; thinks question of new states is one of jurisdiction rather than limits, 279; moves that legislature control public lands, 282; thinks supreme court has jurisdiction in land cases, 282; thinks legislatures may call convention to amend constitution, 283; approves motion prohibiting religious test for office, 283; thinks contiguous states must ratify, 284; thinks states may choose method of ratification, 286; moves congress be not required to approve constitution, 288; favors a second convention, 351; on committee of august 31, 292; moves amendment on the subject of interstate validity of state acts, 293; favors national bankruptcy laws, 294; thinks members of legislature may hold other offices, 295; fears election of president will devolve on senate, 301; defends system of electors, 301, 314; thinks election of president should be free from cabal, 302; prefers eventual election of president by senate to whole legislature, 303; thinks each house should be judge of privileges of its own members, 304; moves postponement of clause relative to revenue bills, 306; seconds motion to require state legislature's consent to national purchase of forts, etc., 306; does not think senate will elect president, 309; favors separate provision for re-election of president, 313, 318; thinks vice-president will not be in accord with president, 326; thinks president must concur in treaties of peace, 330; thinks executive council unnecessary, 331; opposes special provision for treaties of peace, 333; thinks whole legislature should participate in treaties of peace, 334; objects to two-thirds of senate being a quorum, 335; favors impeachment for maladministration, 335; thinks senate should try impeachments, 336, 337; on committee on style and arrangement, 338; favors three-quarters vote to override president's negative, 361; points out danger from unstable laws, 362; favors state power to collect export duties, 365; explains words "direct taxes" in report, 367; approves verbal amendment on negative of bills, 368; moves suspension from office of persons impeached, 370; thinks legislature may appoint treasurer, 371; moves offences against law of nations be definable, 372; thinks government can establish university, 374; opposes provision against standing army, 374; thinks publication of expenditures impossible, 376; thinks states may lay tonnage dues, 380; opposes power of legislature to pardon for treason, 382; moves executive and others have power of appointment, 383; moves amendments by general convention, 385; moves states have equal suffrage in senate, 386; announces he will sign constitution, 393. morris, robert, pa., attends convention, i., 1; pierce's sketch of, 2, n.; moves washington's election as president of convention, 3; thinks senate should be chosen by the people, 95; favors life term for senators, 236. n national government of three branches agreed to, i., 35. "national" in virginia plan, word struck out, i., 190. naturalized citizens, rights of debated, ii., 145. navigation acts, question of, committed, ii., 225; postponed, 253; agreed to, 273; considered, 291; debated, 380, 386. navy, provision for, debated, ii., 194. negative on legislative acts. _see_ executive, national, negative of; judiciary, national, supreme, negative of. negative on state laws. _see_ legislature, national, negative of. new hampshire, moved that governor of, be requested to send delegates, i., 272; representation of, 322, 324; delegates from, attend convention, ii., 29. new jersey plan. _see_ jersey plan. nightingale, jos., signs address from rhode island, i., 11, n. north carolina, representation of, i., 325, ii., 378. o oath to support national government from state officers, debated, i., 79, 122, 123, 137, ii., 30; to support constitution, affirmation permitted, 284. olney, jeremiah, signs address from rhode island, i., 11, n. p pardons and reprieves. _see_ executive, national, power of. patents and copyrights. _see_ legislature, national, power of. patterson plan. _see_ jersey plan. patterson, william, n. j., attends convention, i., 1; pierce's sketch of, 79, n.; moves to consider mode of voting in legislature, 109; favors equal vote by states in legislature, 111, 315; offers plan of government, 137; on committee on representation, 292; defends small states, 302; opposes inclusion of blacks in representation, 321; favors adjournment to consider representation in senate, 367; opposes ineligibility of executive, ii., 6. peace, power to declare, debated, ii., 188. pensioners, disqualification of, from legislature, proposed, ii., 64. phillips, jonas, letter of, ii., 322, n. pierce, william, ga., notes of convention, i., 1, n.; sketch of yates, 1, n.; sketch of robert morris, 2, n.; sketch of few, 2, n.; sketch of blair, 1, n.; sketch of bassett, 1, n.; sketch of washington, 3, n.; sketch of wilson, 3, n.; sketch of hamilton, 4, n.; sketch of wythe, 5, n.; sketch of king, 5, n.; sketch of mason, 6, n.; sketch of gouverneur morris, 8, n.; sketch of butler, 11, n.; sketch of spaight, 11, n.; sketch of charles pinckney, 13, n.; sketch of randolph, 13, n.; sketch of charles cotesworth pinckney, 33, n.; sketch of gerry, 34, n.; sketch of sherman, 34, n.; sketch of read, 35, n.; sketch of madison, 36, n.; attends convention, 39; sketch of rutledge, 46, n.; sketch of franklin, 49, n.; sketch of bedford, 54, n.; sketch of williamson, 57, n.; sketch of dickinson, 62, n.; sketch of davey, 65, n.; sketch of patterson, 79, n.; favors election of representatives by people and to senate by legislatures, 89; sketch of pierce, 89, n.; sketch of brearley, 109, n.; sketch of ellsworth, 120, n.; proposes three years' term for senators, 128; sketch of jenifer, 124, n.; sketch of lansing, 138, n.; sketch of johnson, 200, n.; sketch of strong, 207, n.; sketch of gorham, 210, n.; sketch of alexander martin, 218, n.; sketch of dayton, 245, n.; opposes equal state representation, 268; sketch of baldwin, 271, n.; sketch of broome, ii., 8, n.; sketch of mcclurg, 16, n.; sketch of gilman, 29, n.; sketch of houston, 38, n.; sketch of carroll, 39, n.; sketch of langdon, 64, n.; sketch of mchenry, 157, n.; sketch of mifflin, 159, n.; sketch of livingston, 209, n.; sketch of blount, 394, n.; sketch of ingersoll, 396. pinckney, charles, s. c., attends convention, i., 2; appointed on committee on rules, 4; moves a committee on minutes, 13; pierce's sketch of, 13, n.; submits plan of constitution, 19; letters of concerning draft, 19, n.; asks if state governments are to be abolished, 33; favors enumerating powers of national legislature, 45; favors vigorous executive, 56; favors seven years' term for national executive, 54; favors single executive, 66; favors appointment of judiciary by executive, 78; opposes provision for amendments of constitution, 79; favors ratification by nine states, 81; moves election of representatives by state legislatures, 84; opposes inclusion of judiciary in revisionary power, 93; moves consideration of negative on state laws, 94; favors election of senators by state legislatures, 100; favors negative by legislature on all laws, 101; moves classification of states to determine representation, 107; favors representation by free population, 120; proposes selection of judges by legislature, 131; favors election of representatives by the people, 224; opposes equal state representation in senate, 286; favors representation by population, 307; thinks originating money bills in house no concession, 310; favors representation of blacks equal with whites, 346; proposes proportional representation in senate, 356; favors negative by legislature of state laws, 374; favors election of executive by the people, 376; opposes impeachability of executive, ii., 11, 13; favors appointment of judges by senate, 26; moves that executive be elected by legislature for not more than six years in twelve, 52; moves exclusion from executive and judiciary of debtors of government, 61; opposes disqualification of debtors from legislature, 65; thinks national capital ought not to be at state capital, 67; moves reference to committee of whole of report of committee of detail, 91; thinks time of meeting of legislature need not be fixed in constitution, 93; moves increase in representation of south carolina, 110; thinks fisheries and western frontier more burdensome than slavery, 114; moves to strike out requirement as to money bills, 115; favors fourteen years' citizenship for senators, 121; thinks no strangers should be in legislature, 121; moves that time and mode of election of representatives be fixed by state legislatures, 126; insists on property qualification for officers of government, 128; opposes considering question of money bills, 141; thinks government not bound to respect state laws on naturalization, 147; opposes ineligibility of members of legislature to other offices, 158, 163; moves that acceptance of other office shall vacate seat in legislature, 159; favors postponement of clause relating to eligibility of members of legislature to other offices, 166; thinks judiciary should not be included in revisionary power, 172; favors appointment of treasurer by joint ballot, 184; moves legislature subdue rebellions without application to state legislatures, 186; thinks senate should have power to declare war, 187; thinks state debts may be assumed by government, 192; opposes executive council, 193; favors national control of militia, 197; submits propositions for committee of detail, 198; seconds morris's propositions for committee of detail, 200; moves power to create necessary offices, 203; declares constitution will fail if slave trade is prohibited, 218; defends slavery, 221; moves to commit question of navigation acts, 225; moves officers be forbidden to accept presents from foreign states, 234, 235; moves national power to negative state laws, 236; thinks state executives should be appointed by national government, 237; moves election of executive by majority of legislature, 244; thinks rights of habeas corpus should be assured, 261; proposes that fugitive slaves be surrendered, 267; moves to recommit question of interstate validity of state acts, 267; favors commercial regulations, 269; moves that no religious test be required for office, 283; moves that congress be not required to approve constitution, 288; moves ineligibility of members of legislature to other offices with emoluments, 294; thinks they should be eligible to other offices, 296; asks why mode of electing president is to be changed, 301; thinks electors objectionable, 301, 307; moves each house of legislature judge privileges of its own members, 304; agrees to postponement of clause relative to revenue bills, 306; seconds motion that two-thirds of senate be present when electing president, 318; thinks senate should not share in appointments, except of ambassadors, 328; opposes power of impeaching president, 336; moves an address to accompany constitution, 347; opposes three-quarter vote to override president's negative, 363; moves power to establish a university, 374; thinks legislature should not name treasurer, 371; opposes provision against standing armies, 374; moves guaranty of liberty of the press, 375; favors publication of accounts from time to time, 376; favors increase of north carolina representation, 379; moves preservation of jury trials in civil cases, 384; announces he will sign constitution, 388; urges unequivocal signing, 396. pinckney, charles cotesworth, s. c., attends convention, i., 1; pierce's sketch of, 23, n.; opposes election of representatives by the people, 90; thinks senate should have power to originate money bills, 134; favors election of representatives by state legislatures, 204, 206; opposes ineligibility of representatives to state offices, 217; favors four years' term for senators, 236, 238; favors no salary for senators, 244; thinks senate should be dependent on states, 247; favors compromise on representation, 287; thinks originating money bills in house no concession, 312; favors equality of representation for southern states, 323; favors greater representation for southern states, 324; moves increase of representation for north and south carolina, and georgia, 325; insists upon inclusion of blacks in basis of representation, 331; opposes tax on exports, 342; thinks slave property should be protected, 343; favors first census as basis of representation, 346; opposes adjournment on representation question, 367; insists constitution must provide against emancipation, ii., 39; moves exclusion from judiciary and executive of public debtors, 61; seconds motion to strike out provision for mutual negative of one branch of government over another, 92; moves that representation of south carolina be increased, 110; moves ten years' citizenship for senators, 125; asks whether there is to be no army, 135; favors national control of militia, 196, 197; declares constitution will fail if it interferes with slavery, 221; declares south carolina will not soon stop slave trade, 223; on committee on navigation acts, 225; favors effective control of militia, 232; seconds motion to reconsider question of discharge of debts, 241; favors extension of slave trade, 250; proposes plan for selecting ports of entry, 253; thinks judges' salaries may be raised, 258; favors compromise on commercial regulations, 269; praises new england men, 269; approves motion that no religious test be required for office, 283; opposes clause as to juries in civil cases, 384; dislikes form of signing, 396, n. pinckney plan, real date of, i., xvi.; letters concerning, i., 19, n; submitted, 20; facsimile of, 21; referred to committee of detail, ii., 48, 74. piracies and felonies, power to declare, debated, ii., 184. ports of entry, method of choosing, debate on, ii., 253. post-offices, power to establish. _see_ legislature, national, power of. prayers in convention proposed by franklin, i., 259, 260. presents, acceptance of, from foreign states, by officers, forbidden, ii., 235. president, the. _see_ executive, national. president of the convention, washington elected, i., 3. property qualification. _see_ executive, national, compensation of; judiciary, national, compensation of; legislature, national, property qualification for; senate. proportional representation. _see_ legislature, national, representation in. q quorum. _see_ legislature, national, quorum in. r randolph, edmund, va., attends convention, i., 1; offers virginia plan, 13; pierce's sketch of, 13, n.; explains design of senate, 43; opposes indefinite power of legislature, 47; opposes single executive, 51, 63; opposes election of executive by state executives, 109; favors provision for amendment of constitution, 122; favors oath of allegiance to national government from state officers, 122; favors seven years' term for senators, 128; moves extent of supreme court's jurisdiction, 130; opposes jersey plan, 150; favors two years' term for representatives, 207; favors national compensation for representatives, 210; favors rotation in personnel of senate, 236; moves that sermon be preached to convention, 261; favors committee of compromise on representation, 291; on committee of compromise on representation, 307; objects to submitting question of voting in senate to committee of small states, 308; opposes reduction of representation of new hampshire, 324; moves that census be required, 327, 331, 344; moves representation by free inhabitants and three-fifths slaves, 344-350; favors adjournment on representation in senate, 367, 368; opposes power to legislate where state legislation would interrupt harmony, 372; favors appointment of judges by senate, 386; favors guaranty of republican government to states, 391; favors ineligibility to re-election of executive, ii., 4; favors impeachability of executive, 14; favors appointment of judges by executive, 27; thinks constitution should be ratified by the people, 31; favors fixing time of meeting of legislature provisionally, 44; thinks it unimportant when legislature meets, 95; revives question of money bills originating, 116; thinks state executives may safely fill vacancies in senate, 117; moves to postpone question of voting in senate, 118, 119; favors postponement of question of originating money bills, 120; opposes fourteen years' residence for senators, 123; favors nine years' citizenship for senators, 125; moves legislature have power to compel attendance of members, 135; approves expulsion from legislature by two-thirds vote, 135; thinks yeas and nays may be ordered by any member of legislature, 136; moves senators may dissent from any measure, 136; thinks originating money bills ought to be reconsidered, 140; moves four years' citizenship for representatives, 142; moves bills to raise revenue shall originate in house without power of amendment in senate, 149; thinks provision as to money bills should stand, 155; favors disqualification of members of legislature from other offices, 166, 296; moves that power of negative extend to resolutions, 177; favors power to emit bills of credit, 182; doubts whether legislature may declare law of piracies, 185; moves that legislature define piracies, etc., 185; opposes suppression of rebellion without request of state, 187; favors extended definition of treason, 203; moves british statute on treason, 205; favors commitment of question of slave trade, 224; thinks power to fulfil engagements or old government unnecessary, 229; favors national control of militia, 232; moves postponement of question of treaty-making, 240; favors reconsideration of question of discharge of debts, 241; suggests states appoint some federal officers, 246; moves obligations of old government be binding on new, 249; opposed to removability of judges on application of legislature, 257; moves judges' salaries be fixed for three years, 258; on committee on interstate validity of state acts, 268; favors interstate validity of state acts, 268; announces objection to features of constitution, 273; moves that ratification from nine states be required, 284; favors second convention to consider amendments, 289; thinks declaration as to state acts defective, 294; asks why the mode of electing president is to be changed, 301; thinks eventual election of executive should be by whole legislature, 303; doubts whether each house should judge of the privileges of its members, 304; thinks mode of choosing president aristocratic, 310; moves that legislature name president when both president and vice-president die, 323; thinks vice-president should not be president of senate, 326; thinks state conventions may offer amendments to constitution, 343; states his objections to the constitution, 346; proposes second convention, 346; moves pardons in treason cases be considered, 347; moves use of word "service" for "servitude," 367; seconds verbal amendment to clause on negative of bills, 368; moves suspension of officers impeached, 370; favors power to grant charters, 373; seconds motion against standing armies, 374; moves to except treason from president's power to pardon, 382; thinks president and senate should not combine, 382; announces he cannot sign constitution, 387; proposes second federal convention, 388; thinks second convention feasible, 395; does not sign, 398. ratification of constitution, method of, debated, i., 80, ii., 32, 254, 342, 344; by conventions, proposed, i., 79; by people of states, 122, 135, 187; by assemblies chosen by the people, debated, ii, 38; resolutions concerning, offered, 368. read, george, del., attends convention, i., 2; moves debate on three branches of government, 35; pierce's sketch of, 35; moves to postpone question of representation, 37; favors national government, 89; moves senate be named by executive, 95; opposes guaranty of territory to the states, 121; favors forbidding senate from originating money bills, 133; thinks injustice was done small states in land cession, 237; supports small states on question of representation, 232; favors life term for senators, 236; moves nine years' term for senators, 238; thinks the united states ought to be one people, 241; favors abolishing states, 263; favors increase in representation, 326; thinks representation ought to be fixed by legislature, 334; thinks taxation and representation may be adjusted, 348; moves absolute negative by executive on legislature, ii., 95; opposes requirement that representatives live in the states they represent, 108; opposes provision as to money bills, 118; moves that national legislature have power over elections if states make no provision, 128; opposes power to emit bills of credit, 183; moves that treasurer be appointed by executive, 184; doubts national control of militia, 198; thinks requisitions were accommodated to poverty of states, 212; favors commitment of question of taxing exports, 224; moves president of senate have additional casting vote for executive, 244; on committee of august 25, 254; objects to same court having equity and law jurisdiction, 256; opposed to separate provision for re-election of president, 313; thinks small states should have vote for president in legislature, 325; moves prohibition of direct tax, 375. rebellion in states, power to subdue, debated, ii., 186. representation in legislature. _see_ legislature, national, representation in, house of representatives, senate. republican government, guaranty of, to states, debate on, i., 79, 121, 137, 390, ii., 282; amendment adopted, 384. rhode island, address from citizens of, i., 8, n.; moved representation of, be increased, ii., 378. rules, of convention, committee on, appointed, i., 5; adopted, 6; additional, adopted, 12. of legislature. _see_ legislature, national, rules of. russell, william, signs address from rhode island; i., 11, n. rutledge, john, s. c., attends convention, i., 2; seconds motion for washington's election as president, 3; wants enumeration of powers of legislature, 46; pierce's sketch of, 46, n.; favors single executive, 66; opposes appointment of judges by executive, 77; opposes inferior judicial tribunals, 82; moves classification of states to determine representation, 107; favors representation according to wealth, 115, 120, 364; favors two years' term for representatives, 124; thinks senators should receive no compensation, 129; favors election of representatives by state legislatures, 205; favors ineligibility of representatives to other offices, 218, 223; opposes sending for new hampshire delegates, 272; on committee on compromise on representation, 292, 307; moves fixing representation, 319; opposes increase in representation, 327; moves that representation be by wealth and population, 333; proposes to reconsider originating of money bills, 355; thinks powers of legislature loosely defined, 366; opposes adjournment to consider representation, 368; opposes guaranteeing republican government to states, 392; favors election of executive by state legislatures, ii., 8; opposes inclusion of judiciary in revisionary power, 25; on committee to report constitution according to resolutions, 58; submits report of committee, 75; moves annual meeting of legislature, 95; opposes confining suffrage to freeholders, 106; favors seven years' residence in their states of representatives, 108; favors three years' residence in their states of representatives, 110; insists on longer than seven years' citizenship for senators, 125; moves mode of election of representatives be left to state legislatures, 126; insists on property qualification for officers of government, 129, 132; moves publication of senate journals, 137; thinks provision as to citizenship should apply to those already citizens, 146; opposes provision as to money bills, 156; seconds motion to postpone provision as to money bills, 171; urges progress, 175; opposes tax on exports, 178; moves that funds for public creditors be not diverted, 191; moves that state debts be assumed by government, 196; urges expedition, 193; defends slavery, 218; declares south carolina and georgia will not accept constitution if it prohibits slave trade, 224; submits report on madison and pinckney propositions, 225; thinks prohibition of _ex post facto_ laws unnecessary, 228; reports constitution according to resolutions, 228; moves constitution be the supreme law, 235; opposes power of negative of state laws, 237; thinks judiciary will decide controversies between states, 241; moves election of executive by joint ballot of legislature, 242; opposed to removability of judges on legislature's application, 257; moves judiciary have power over treaties, 259; thinks rights of habeas corpus should be inviolable, 261; moves to prohibit bills of attainder and retrospective laws, 263; on committee on interstate validity of state acts, 268; favors commercial regulations, 272; thinks there is no danger of dismemberment of states, 278; thinks it unnecessary to guarantee public lands, 281; presents committee report, 292; opposes plan for executive, 308; moves senate choose president from thirteen candidates, 311; moves two-thirds of whole senate concur in treaties, 334; objects to general power against slavery, 341; opposes legislature appointing treasurer, 371; opposes address to people, 377; moves to limit president's emoluments, 381. s seat of government, not to be at same place with state capital, ii., 66; at central point proposed, 67; provisions for, 140. second branch of legislature. _see_ legislature, national, senate. senate. _see_ legislature, national, senate. sermon for members of convention agreed to, i., 261. sherman, roger, conn., attends convention, i., 32; favors conservative course toward states, 34; pierce's sketch of, 34, n.; opposes election of representatives by the people, 39; favors election of one senator from each state, 45; favors election of executive by state legislatures, 50, 54, 375; favors three years' term for executive, 54; thinks legislature should have power to remove executive, 63; favors an executive council, 68; opposes negative by executive, 71; opposes ratification of constitution by conventions, 80; opposes creation of inferior judiciary tribunals, 82; favors election of representatives by state legislatures, 85; favors elections to senate by state legislatures, 94, 99; favors limiting power of negative on state laws, 104; proposes proportional representation in house and by states in senate, 114; proposes each state have one vote in senate, 120; opposes oath to national government by state officers, 122; proposes one-year term for representatives, 124; proposes five years' term for senators, 128; opposes leaving time and mode or electing representatives to state legislatures, 129; proposes election of judges by national legislature, 131; thinks money bills may originate in senate, 133; opposes two branches of legislature, 196; favors election of representatives by state legislatures, 205; consents to two years' term for representatives, 208; favors compensation of representatives by states, 211; opposes ineligibility of representatives to state offices, 217, 220, 223; favors six years' term for senators, 237; favors six or four years' term for senators, 240; favors rights of small states, 258; proposes committee on representation, 287, 320; favors vote by states in senate, 313; moves to postpone question of representation, 318; opposes increase in representation, 325, 326; opposes periodical census, 329; thinks representation should be fixed by census, 333; thinks representation fairly apportioned, 339; favors leaving question of taxation to state legislatures, 349; thinks senators may vote per capita, 357; thinks government should have coercive power over states, 363; thinks government will act on states in requiring tax quotas, 363; moves that government should not interfere with internal policy of states, 371; opposes direct taxation by national government, 371; thinks state courts will consider state laws contravening national authority invalid, 372; opposes negative by legislature of state laws, 372; opposes ineligibility of executive to second term, 379; opposes tenure of executive for good behavior, 380; favors appointment of judges by senate, 382; favors appointment of judges by executive with consent of senate, 387; opposes creation of inferior judicial tribunals, 389; favors negative of each branch of legislature on the other, ii., 91; thinks time of meeting of legislature should be specified, 94; moves representatives be inhabitants of their states, 107; thinks representation should stand, 111; moves that representation not exceed 1 to 40,000, 112; thinks slaves should be included in representation, 114; thinks yeas and nays may not be required, 136; moves publication of journal of legislature, 138; thinks general government can make any regulations as to citizenship, 146; thinks those in power should be free from temptation, 163; favors payment of legislature partly by states and partly by nation, 168; thinks power of negative should not be extended, 174; thinks revision of acts by president unnecessary, 177; favors no tax on exports, 178, 180; opposes appointment of treasurer by joint ballot, 184; thinks executive should not have power to commence war, 188; thinks state debts may be assumed by government, 192; appointed on grand committee, 193; thinks states should partially control militia, 196, 197; thinks resistance to national laws treason, 207; thinks report on state debts meaningless, 210; favors limiting representation of large states, 210; moves settlement of debts on basis of taxation, 211; thinks provision as to slave trade may stand, 218, 224; thinks question of taxing exports settled, 224; moves that states have power to train militia, 230; withdraws motion, 230; proposes mixed control of militia, 231; thinks states should appoint militia officers, 233; thinks negative of state laws by general government unnecessary, 236; thinks judiciary will decide controversies between states, 241; opposes election of executive by joint ballot of legislature, 242; objects to executive appointing all officers, 246; objects to legislatures of states appointing federal officers, 247; moves express provision for paying debts, 249; opposed to taxing men as property, 251; thinks revenue the object of import tax on slaves, 252; on committee of august 25, 254; moves amendment to pardoning power, 254; moves militia be under executive when in active service, 255; favors removability of judges on application of legislature, 257; moves judicial power extend to land grants, 260; reports amendments on commercial regulations and judicial power, 260; moves to prohibit bills of credit or payments in anything but coin, 262; wishes to crush paper money, 262, 263; thinks states should have power to lay embargoes, 264; thinks state legislatures may deal with impost question, 265; moves that states may tax exports for national treasury, 265; opposes surrender of fugitive slaves and servants, 266; desires commercial regulations by majority vote, 270; declare all should have equal privileges, 275; thinks union cannot dismember a state, 276; moves admission of new states by consent of state legislatures, 278; thinks constitution may guarantee public lands, 281; thinks no religious test will be applied for office, 283; thinks ratification should be from ten states, 284, 287; thinks ratification should be by all states, 285; moves to postpone ratification question, 287; moves to take up report of committee of eleven, 290; moves to refer draft of constitution to committee, 292; on committee, 292; opposes national bankruptcy law, 294; favors ineligibility of members of legislature to other offices, 295; does not object to election of vice-president by majority, 300; thinks army in time of peace should be restricted, 305; willing to defer to those who think revenue bills vital, 306; thinks large states will have advantage in nominating candidates for president, 309; thinks president should not be chosen from three candidates, 311; thinks when legislature votes for president it should vote by states, 313; moves eventual election of president by house of representatives, 318; approves of vice-president being president of senate, 326; favors inclusion of senate in treaty-making, 327; thinks whole legislature should participate in treaties of peace, 333; moves that majority of whole senate vote for treaties, 334; thinks supreme court should not try president, 336; thinks representation large enough, 339; moves states be required to consent to amendments, 341; favors submitting constitution to congress, 344; favors two-thirds vote to override president's negative, 361; thinks state bills of rights sufficient, 364; thinks legislature should appoint treasurer, 371; objects to power to cut canals, 372; thinks provision for liberty of press unnecessary, 375; thinks accounts may be published from time to time, 376; opposes address to states, 378; favors additional representation for north carolina, 378; thinks states and nation may have concurrent commercial jurisdiction, 381; seconds motion to vest appointments in president and others, 383; thinks three-quarter states may oppress others by amendments, 385; thinks conventions may act on amendments, 386; moves that states be preserved, 386; moves to strike out clause concerning amendments, 386. signing constitution, mode proposed, ii., 391; takes place, 393. slavery and slave trade, debate on, ii., 218, 250; compromise on, brought in, 269; power to prohibit, objected to, 366. slaves, import tax on, agreed to, ii., 252; delivery up of fugitive, proposed, 267; agreed to, 274; verbal amendment made, 384. south carolina, motion that representation of, be increased, ii., 110. spaight, richard dobbs, n. c., attends convention, i., 2; moves rule for revision of questions, 11; pierce's sketch of, 11, n.; seconds motion for representation by free inhabitants, 37; favors election to senate by free population, 43; withdraws motion for elections to senate by state legislatures, 44; moves reconsideration of appointment of executive by electors, ii., 39; seconds motion to elect executive by national legislature, 40; fears capital will be located at new york, 139; favors commercial regulations by majority vote, 271; moves senate choose president from thirteen candidates, 311; moves seven years' term for executive, 316; moves six years' term, 316; moves electors meet at seat of government, 317; proposes president make appointments during recess of senate, 329; moves special provision respecting territorial rights, 332. state acts, validity of, debated, ii., 267, 293; certain, prohibited, 377. state debts, debate on assumption of, ii., 192. state laws, negative of. _see_ legislature, national, negative of. state police, non-interference in, by national government, debated, i., 371. state representation, equal in house, debated, i., 268; in senate, 273, 286; committee to arrange, debated, 287, 292; report of committee, 293. _see_ legislature, national, representation in. states, admission of new, provision for, agreed to, i., 78, 137, 390; debated, ii., 274, 275, 277, 278, 279, 280, 384. strong, caleb, mass., attends convention, i., 5; favors one-year term for representatives, 207; pierce's sketch of, 207, n.; favors committee on representation, 291; favors equal representation by states in senate, 359; opposes inclusion of judiciary in revisionary power, ii., 20; thinks executive will not be re-elected, 40; thinks question of voting in senate should be postponed, 118; favors $4 per day as payment for legislature, 170; moves revenue bills originate in house, 170. style and arrangement, committee on. _see_ committee on style and arrangement. sumptuary laws, debate on, ii., 202, 366; committee on, _see_ committee on sumptuary laws. supreme court. _see_ judiciary, national supreme. t taxation, by representation, debated, i., 342, 349, ii., 47; basis of, by free and slave population, debated, i., 343; direct on states in proportion to representation, debated, 350; direct by national government, opposed, 371; proposed that it be by quotas, ii., 207; according to congressional representation, debated, 208, 211; definition of direct, asked, 208; by population, proportion agreed to, 210; power of, on exports, debated, 217, 218, 376; on migration of slaves, debated, 218; on slaves, debated, 219, 241; capitation and direct, debated, 375. _see_ legislature, national, representation in. term of members of legislature. _see_ legislature, national, term of. territory, guaranty of, to each state, debated, i., 121. tonnage dues. _see_ navigation acts. treason, debate on, ii., 202. treasurer, appointment of. _see_ legislature, national, power of. treaties, power to make, debated, i., 242, 243, ii., 238, 327; force of, debated, 252; power to interpret, by judiciary, debated, 259; of peace, how to be made, 330, 332, 333; provision for, reconsidered, 333; proposed that they require two-thirds senate, 334, 335; proposed that they require majority, 335; notice of, to senators, proposed, 335. _see_ legislature, national, senate. u university, national. _see_ legislature, national, power of. v varnum, j. m., letter from, with address from rhode island, i., 9, n. vermont, admission of, to union, debated, ii., 276. veto power. _see_ executive, national, negative of. vice-president, duties of, defined, ii., 299, 300, 326. virginia plan, the, presented to convention, i., 13; debated in committee of the whole, 32; debated, 39; reported on from committee of the whole, 134, 184; vote on, 185. voting, restriction of, to freeholders, debated, ii., 96. w war, power to declare, debated, ii., 187. washington, george, va., attends convention, i., 1; elected president of convention, 3; thanks convention for election, 3; pierce's sketch of, 3, n.; rebukes member for losing his notes, 48, n.; john jay's letter to, ii., 48, n.; knox's letter to, 158, n.; urges increase in representation, iv., 392; asks instructions concerning journals, 397. williamson, hugh, n. c., attends convention, i., 2; objects to election of executive by districts, 57; pierce's sketch of, 57, n.; moves impeachability of executive, 65; favors limiting senate to twenty-five members, 95; opposes indefinite power of negative on state laws, 103; favors proportional representation, 114; favors states paying representatives, 210; moves that number in senate be fixed, 235; favors six years' term for senators, 236; thinks rights of small states not menaced, 253; favors committee on representation in senate, 291; opposes compromise proposed, 361; thinks senate better able to consider money bills than house, 309; thinks proposed representation unfair to southern states, 324; favors reducing representation of northern states, 324; amends motion fixing periodical census, 330; thinks new hampshire representation too large, 348; opposes election of executive by people, 378; opposes eligibility of executive to re-election, ii., 8, 41; opposes election of executive by electors, 8; favors six years' term for executive, 9; moves number of electors be based on representatives, 10; moves electors be paid out of national treasury, 17; suggests national officers take oath to support state governments, 30; favors ratification of constitution by conventions, 35; favors voting per capita in senate, 38; dislikes single executive, 41; suggests voting for three persons for executive, 54; favors forbidding national capital at state capital, 66; seconds motion to limit negative of each branch of legislature on the other, 91; moves representation in house based on taxation, 110; favors reconsidering question of money bills, 116; thinks provision for filling vacancies in senate necessary, 117; insists upon guarding qualifications of senators, 125, 131; thinks provision on money bills should be retained, 141; moves nine years' citizenship for representatives, 144; opposes eligibility of members of legislature to other offices, 163; moves postponement of question of money bills, 171; moves to make three-quarters of legislature necessary to overcome executive negative, 176; thinks exports should not be taxed, 179; thinks state lands ought to be given up, 193; appointed on grand committee, 193; favors restrictions on army, 195; moves quotas of states be determined, 211; opposes apportionment of taxation by representation, 212; thinks states should not have power to tax exports, 213; thinks slave trade should be left to states, 223; on committee on navigation acts, 225; thinks prohibition of _ex post facto_ laws unnecessary, 228; thinks discussion of negative of state laws unnecessary, 237; doubts if judiciary can impartially decide controversies between states, 241; opposes slavery, but wishes union, 251; on committee of august 25, 254; moves to postpone question of executive succession, 256; seconds motion to make it impossible for states to levy imposts, 265; moves clause of articles of confederation as to state acts, 267; favors commercial regulations by two-thirds vote, 270; thinks question of new states should be left to legislature, 275, 278; on committee of august 31, 292; thinks ineligibility of members of legislature should extend to offices created during their term, 295, 296; objects to president's dependence on senate in appointments, 302; moves to reconsider representation, 307; objects to senate electing president, 308, 310, 315; moves election of president by one-third of all electors, 310; moves electors voting be the only ones counted, 311; favors separate provision for re-electing president, 313; moves seven years' term for president, 316; moves six years' term for president, 316; thinks electors should meet at seat of government, 317; suggests eventual election of president by whole legislature, voting by states, 318; thinks vice-president unnecessary, 326; thinks treaties of peace important, 330, 332; thinks treaties may be made without majority of people, 333; opposes requirement that treaties be ratified by majority of whole senate, 334; proposes that notice of treaties to senators be required, 335; thinks senate will lean towards president, 336; moves increase in representation in house of representatives, 338; moves that old congress sanction constitution, 346; favors two-thirds vote to override president's negative, 361; fears too many laws, 362; moves provision for juries in civil suits, 363; moves increase of representation, 369; seconds motion against direct tax, 375; suggests signing letter only, 393. wilson, james, pa., attends convention, i., 1; nominates william temple franklin for secretary of convention, 3; pierce's sketch of, 3, n.; favors election of representatives by the people, 41, 205; favors election of senators by the people, 44, 95; favors a single executive, 49, 50, 67; favors election of executive by the people, 53, 55, ii., 6, 47; favors three years' term for executive, i., 54; moves election of executive by district electors, 56; opposes an executive council, 68; favors negative by executive on legislature, 69, 71; favors creation of inferior judiciary, 73, 82; favors inclusion of judiciary in power of negative, 75; opposes appointment of judges by legislature, 77; favors ratification by plurality of states, 81; favors election of representatives by the people, 84; favors preservation of state governments for local purposes, 90; favors inclusion of judiciary in revisionary power, 91, ii., 17, 25; favors election to senate by districts, i., 98; favors absolute negative in legislature, 104; favors proportional representation, 113, 115, 257; favors representation by free inhabitants, 119; thinks voting in senate should be on same plan as in house, 121; opposes jersey plan, 146; opposes hamilton plan, 185; insists that states are dependent on each other, 188; favors two branches of legislature, 198; thinks state governments may encroach on national government, 201; favors one-year term for representatives, 207; favors national compensation of representatives, 211; moves that compensation be fixed by legislature, 212; opposes age limit for representatives, 214; opposes ineligibility of representatives to other offices, 214, 220; opposes elections to senate by state legislatures, 233; favors six years' term for senators, 237; favors nine years' term for senators, 243; opposes eligibility of senators to state offices, 247; opposes sending for new hampshire delegates, 272; opposes representation by states in senate, 273; admits question of number of senators is embarrassing, 280; opposes committee on representation in senate, 291; moves question of voting in senate, 308; opposes originating money bills in house, 309, 312; opposes yielding equal vote in senate to small states, 314; thinks representation of western states should be based on property, 320; thinks wealth an impracticable rule of representation, 334; opposes inclusion of three-fifths of blacks as basis of representation, 339; favors guaranty of republican government to the states, 342; moves that representation be according to direct taxation, 344; favors representation based on free inhabitants and three-fifths of slaves, 344; favors adjusting taxation to representation, 349; thinks equal vote in senate favored by minority, 355; insists that numbers are correct basis for representation, 355; thinks small states would abandon plea of equality in taxes and troops, 356; thinks originating money bills in house of little consequence, 356; insists on proportional representation in senate, 362; favors non-interference of national government with state police, 371; opposes election of executive by the people, 375; opposes election of executive by legislature, 377; favors appointment of judges by executive, 384; favors continuance of old congress till new government starts, 390; favors guaranty to states of republican government and against violence, 392; favors impeachability of executive, ii., 11; thinks departments should act separately, 24; thinks oath of allegiance unnecessary, 30; opposes election of executive by legislature, 43; suggests election of executive by members of national legislature selected by lot, 44, 47; on committee to report constitution according to resolutions, 48; favors specifying general principles for executive, 56; opposes disqualification from legislature of persons having unsettled accounts, 64; thinks time of meeting of legislature should be fixed, 93; favors winter as time for meeting of legislature, 95; thinks suffrage in the states should not be prescribed by legislature, 96; favors requiring representatives to be inhabitants, 108; opposes requirement of seven years' inhabitancy for representatives, 108, 109; thinks question of representation by free inhabitants premature, 114; opposed to originating money bills in house, 115; reviews question of citizenship of representatives, 116; objects to vacancies in senate being filled by state executives, 116; thinks provision as to money bills of no value to large states, 118, 120; opposes fourteen years' residence as necessary for senators, 123; moves to reconsider requirement of seven years for representatives, 132; thinks number for quorum should not be small, 134; thinks publication of legislative journal necessary, 138; moves four years' citizenship for representatives, 142; insists representatives need not be natives, 145; thinks new government bound by pennsylvania's promises to foreigners, 148; moves seven years' citizenship for senators, 149; thinks people will disapprove members of legislature holding other offices, 164; thinks good men will refuse legislature if debarred from other offices, 165; seconds motion to have acts revised by executive and judiciary, 172; thinks legislature will swallow up powers of government, 175; favors making three-fourths of legislature necessary to overcome executive negative, 176; explains difference between "duties" and "imposts," 177; thinks exports may be taxed, 179; opposed to power to emit bills of credit, 182; thinks it unnecessary to define felonies, etc., 185; thinks law of felonies, etc., ought to be declared, 185; moves that treason be against united states, 205; thinks treason may be against a state, 206; thinks proof of treason may be difficult, 207; favors power to tax exports, 215; seconds motion to tax exports by two-thirds of legislature, 217; thinks slaves should be taxed, 222; favors commitment of question of navigation acts, 225; thinks prohibition of _ex post facto_ laws unnecessary, 228; thinks senate should not make appointments, 235; thinks negative of state laws unnecessary, 237; objects to senate's power to make treaties, 239; thinks judiciary may decide controversies between states, 242; seconds motion for election of executive by the people, 243; thinks larger states should have larger share in election of executive, 295; thinks senate should not have separate voice in election of executive, 246; thinks state legislatures will order federal offices filled by state appointment if permitted, 247; thinks pardon before conviction may be necessary, 255; opposes removability of judges on application of legislature, 257; explains appellate power of judiciary, 260; doubts if suspension of right of habeas corpus is ever necessary, 262; moves legislature be prohibited from paying debts in anything but coin, 262; thinks states should not interfere with contracts, 263; objects to treating fugitive slaves as criminals, 267; favors interstate validity of state acts, 267; on committee to consider subject, 268; favors commercial regulations by majority vote, 271; thinks majority may regulate formation of new states, 277; thinks new states may be formed without consent of old, 278; opposes motion to guarantee public lands, 281; proposes ratification by seven states, 284; prefers ratification by eight states to nine, 285; thinks constitution binding only on ratifying states, 285; moves that ratification be by majority of people and states, 287; thinks state power over other states' acts not unusual, 293; opposes ineligibility of members of legislature to other offices, 296; approves plan of electing executive, 302; thinks it unnecessary to give each house power over privileges of its members, 304; moves eventual election of president by whole legislature, 309; thinks eventual election of president by senate dangerous, 313; moves to include house of representatives in treaty-making power, 327; objects to senate's participation in appointments, 328; objects to participation of two-thirds senate on treaties, 329, 334; favors executive council, 332; favors ratification of treaties with majority of senate, 333; thinks less than two-thirds senate may ratify treaties of peace, 333; opposed to president convening either house of legislature, 338; moves amendments be with consent of two-thirds of states, 341; substitutes three-fourths, 341; opposes reconsideration of ratification clause, 343; thinks old congress need not sanction constitution, 345; moves to strike out "direct taxes," 367; thinks legislature should not define offences against law of nations, 372; seconds motion in favor of canals, 372, 373; favors national university, 374; thinks accounts should be published from time to time, 376; thinks executive may pardon for treason, 382; favors depositing convention journal with president, 397. wythe, george, va., attends convention, i., 2; appointed on committee on rules, 4; submits report of committee on rules, 5; pierce's sketch of, 5, n.; offers additional rules, 12. y yates, robert, n. y., attends convention, i., 1; pierce's sketch of, 1, n.; on committee on compromise on representation, 292; leaves convention, 298, n. yeas and nays. _see_ legislature, national. transcriber notes: passages in italics were indicated by _underscores_. passages in bold were indicated by =equal signs=. small caps were replaced with all caps. throughout the document, the oe ligature was replaced with "oe". throughout the document, a tilded m is represented by [~m]. this document was filled with errors and inconsistencies in spelling, punctuations, and hyphenation. for example, usually the word re-eligible is hyphenated, but sometimes it is not; sometimes; reinstated is hyphenated but sometimes it is not; and usually the comma is used as a thousand mark, but sometimes a period is used for that purpose. sometimes vice president was used and sometimes vice-president was used. also, the abbreviations were not uniform (e.g., mas. v. mass.), which were only corrected when it is was clear which abbreviation was considered correct at the time printed. another example is the abbreviation for resolution, which was sometimes resol:^n, sometimes resol^n, and sometimes resol.^n. sometimes "nem: con." was used, and sometimes "nem. con." was used. the only time errors were corrected was when it was very clear that an error was made, and it was clear how the error should be corrected, and those corrections are listed below. throughout the document there are instances where a comma is used where one expects a period, a period is used where one expects a comma, a colon is used where one expects a comma or period, neither is used when one is expected. this instances are left as-is, except for two exceptions: where a period is missing at the end of a sentence or missing at the end of an abbreviation, both of which happened so often that those corrections were made but were not listed below. throughout the document, there was no consistence in the formatting of the titles for each date, (e.g., friday aug^{st} 10. in convention). no attempt was made to correct such inconsistencies. capitalization was corrected throughout the document without comment. throughout the document, a single superscripted letter is represented by that single letter preceded by a caret, and more than one superscripted letters are represented by the letters enclosed by curly brackets. thus, the word "y^e" represents a word where the "y" is normal and the "e" is superscripted; and the word "2^{dnd}" represents a word where the "2" is normal and the "dnd" is superscripted. in both conventions, it is assumed that a dot appeared below the superscripted letters, since in the original text a dot was often (but not always) present under the superscripted letters. thus, "2^{dnd}" in the present text would represent a normal digit "2" followed directly by the superscripted letters "dnd" with a single dot below the set of three letters. on page 7, "difficulty an seemed" was replaced with "difficulty and seemed". on page 7, "hamshire" was replaced with "hampshire". on page 8, a period was added after "div^d.". on page 9, removed period between "6" and "years". on page 16, "forign" was replaced with "foreign". on page 17, in footnote 4, "mclurg" was replaced with "mcclurg". on page 26, a period was added after "2". on page 38, "[blank]" was inserted to mark a large blank space that appeared in the footnote. on page 46, there is a missing opening quotation mark in the last paragraph, but it is unclear where that mark should go. on page 47, the word "this" was capitalized in the sentence starting "this is committing too much". on page 50, "forign" was replaced with "foreign". on page 53, a period was added after "change of measures". on page 76, a comma was added after the word "virginia". on page 81, the comma after "weights and measures" was replaced with a semicolon. on page 112, a quotation mark was added after "40.000.". on page 135, "m^r kings" was replaced with "m^r king's". on page 137, "m^r carrols" was replaced with "m^r carrol's". on page 140, "in the shape it which" was replaced with "in the shape in which". on page 143, "it" was capitalized at the beginning of a sentence. on page 145, "hamiltons" was replaced with "hamilton's" on page 146, "will" was capitalized at the beginning of a sentence. on page 147, the period after "the violaters" was changed to a question mark. on page 166, "pinkneys" was replaced with "pinkney's". on page 167, "[blank]" was inserted to mark a large blank space within parenthesizes. on page 184, "reads" was replaced with "read's". on page 189, a colon was added after "the general legislature". on page 189, a quotation mark was added after "limits of the u. states." on page 207, "misdemesnors" was replaced with "misdemeanors". on page 211, "there" was replaced with "there". on page 212, "it" was replaced with "it". on page 217, a quotation mark was added after "exports". on page 218, a period was added after "2". on page 228, "reflextions" was replaced with "reflections". on page 228, "the" was replaced with "the". on page 230, a quotation mark was added after "training". on page 235, a quotation mark and a comma was added after "foreign state". on page 236, a period was added after "nem: contrad". on page 237, the quotation mark was deleted after "&c &c." on page 242, a quotation mark was added after "a second time." on page 248, "these" was replaced with "these". on page 301, "2 the" was replaced with "2. the", and "6. the" was replaced with "6. the". on page 305, "u. s" was replaced with "u. s.". on page 305, "biennally" was replaced with "biennially". on page 306, a quotation mark was added after "purchased for forts". on page 314, a comma was removed after "the senate". on page 319, a quotation mark was removed after "the states,". on page 324, in footnote 58, a period was added after "united states of america". on page 332, a quotation mark was added after "the states present". on page 399, the word "the" was shown by the printer to be inserted in the sentence. this insertion was made. on page 414, added period were removed after some names in the signatures. on page 440, in the index entry for mason, which begins "doubts propriety of mutual negative", "legiture" was replaced with "legislature". on page 457, in the index entry "knox's letter to, 158 ;" for "washington, george, va.", "n. was entered in the missing blank. throughout the document, "sharman" was replaced with "sherman". throughout the document, one delegate is sometimes named "dickinson" and is sometimes named "dickenson"; and another delegate is sometimes named "carroll" and is sometimes named "carrol". in the index, entries divided by page markers were joined into single entries where possible, and the formatting of the index was regularized (e.g., periods replaced with commas for uniformity of formatting). the federalist papers by alexander hamilton, john jay, and james madison federalist no. 1 general introduction for the independent journal. saturday, october 27, 1787 hamilton to the people of the state of new york: after an unequivocal experience of the inefficacy of the subsisting federal government, you are called upon to deliberate on a new constitution for the united states of america. the subject speaks its own importance; comprehending in its consequences nothing less than the existence of the union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. it has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. if there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind. this idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. but this is a thing more ardently to be wished than seriously to be expected. the plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth. among the most formidable of the obstacles which the new constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every state to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the state establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government. it is not, however, my design to dwell upon observations of this nature. i am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable--the honest errors of minds led astray by preconceived jealousies and fears. so numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. this circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. and a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. for in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. heresies in either can rarely be cured by persecution. and yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. a torrent of angry and malignant passions will be let loose. to judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. an enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. an over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. it will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. on the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. history will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants. in the course of the preceding observations, i have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. you will, no doubt, at the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new constitution. yes, my countrymen, i own to you that, after having given it an attentive consideration, i am clearly of opinion it is your interest to adopt it. i am convinced that this is the safest course for your liberty, your dignity, and your happiness. i affect not reserves which i do not feel. i will not amuse you with an appearance of deliberation when i have decided. i frankly acknowledge to you my convictions, and i will freely lay before you the reasons on which they are founded. the consciousness of good intentions disdains ambiguity. i shall not, however, multiply professions on this head. my motives must remain in the depository of my own breast. my arguments will be open to all, and may be judged of by all. they shall at least be offered in a spirit which will not disgrace the cause of truth. i propose, in a series of papers, to discuss the following interesting particulars: the utility of the union to your political prosperity the insufficiency of the present confederation to preserve that union the necessity of a government at least equally energetic with the one proposed, to the attainment of this object the conformity of the proposed constitution to the true principles of republican government its analogy to your own state constitution and lastly, the additional security which its adoption will afford to the preservation of that species of government, to liberty, and to property. in the progress of this discussion i shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention. it may perhaps be thought superfluous to offer arguments to prove the utility of the union, a point, no doubt, deeply engraved on the hearts of the great body of the people in every state, and one, which it may be imagined, has no adversaries. but the fact is, that we already hear it whispered in the private circles of those who oppose the new constitution, that the thirteen states are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.(1) this doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. for nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new constitution or a dismemberment of the union. it will therefore be of use to begin by examining the advantages of that union, the certain evils, and the probable dangers, to which every state will be exposed from its dissolution. this shall accordingly constitute the subject of my next address. publius 1. the same idea, tracing the arguments to their consequences, is held out in several of the late publications against the new constitution. federalist no. 2 concerning dangers from foreign force and influence for the independent journal. wednesday, october 31, 1787 jay to the people of the state of new york: when the people of america reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important that ever engaged their attention, the propriety of their taking a very comprehensive, as well as a very serious, view of it, will be evident. nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers. it is well worthy of consideration therefore, whether it would conduce more to the interest of the people of america that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government. it has until lately been a received and uncontradicted opinion that the prosperity of the people of america depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object. but politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the states into distinct confederacies or sovereignties. however extraordinary this new doctrine may appear, it nevertheless has its advocates; and certain characters who were much opposed to it formerly, are at present of the number. whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound policy. it has often given me pleasure to observe that independent america was not composed of detached and distant territories, but that one connected, fertile, wide-spreading country was the portion of our western sons of liberty. providence has in a particular manner blessed it with a variety of soils and productions, and watered it with innumerable streams, for the delight and accommodation of its inhabitants. a succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities. with equal pleasure i have as often taken notice that providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence. this country and this people seem to have been made for each other, and it appears as if it was the design of providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties. similar sentiments have hitherto prevailed among all orders and denominations of men among us. to all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection. as a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states. a strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. they formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and well-balanced government for a free people. it is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer. this intelligent people perceived and regretted these defects. still continuing no less attached to union than enamored of liberty, they observed the danger which immediately threatened the former and more remotely the latter; and being persuaded that ample security for both could only be found in a national government more wisely framed, they as with one voice, convened the late convention at philadelphia, to take that important subject under consideration. this convention composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and hearts of men, undertook the arduous task. in the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally, without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils. admit, for so is the fact, that this plan is only recommended, not imposed, yet let it be remembered that it is neither recommended to blind approbation, nor to blind reprobation; but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive. but this (as was remarked in the foregoing number of this paper) is more to be wished than expected, that it may be so considered and examined. experience on a former occasion teaches us not to be too sanguine in such hopes. it is not yet forgotten that well-grounded apprehensions of imminent danger induced the people of america to form the memorable congress of 1774. that body recommended certain measures to their constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the press began to teem with pamphlets and weekly papers against those very measures. not only many of the officers of government, who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences, or the undue influence of former attachments, or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their efforts to persuade the people to reject the advice of that patriotic congress. many, indeed, were deceived and deluded, but the great majority of the people reasoned and decided judiciously; and happy they are in reflecting that they did so. they considered that the congress was composed of many wise and experienced men. that, being convened from different parts of the country, they brought with them and communicated to each other a variety of useful information. that, in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head. that they were individually interested in the public liberty and prosperity, and therefore that it was not less their inclination than their duty to recommend only such measures as, after the most mature deliberation, they really thought prudent and advisable. these and similar considerations then induced the people to rely greatly on the judgment and integrity of the congress; and they took their advice, notwithstanding the various arts and endeavors used to deter them from it. but if the people at large had reason to confide in the men of that congress, few of whom had been fully tried or generally known, still greater reason have they now to respect the judgment and advice of the convention, for it is well known that some of the most distinguished members of that congress, who have been since tried and justly approved for patriotism and abilities, and who have grown old in acquiring political information, were also members of this convention, and carried into it their accumulated knowledge and experience. it is worthy of remark that not only the first, but every succeeding congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of america depended on its union. to preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. with what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the union? or why is it suggested that three or four confederacies would be better than one? i am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the union rests on great and weighty reasons, which i shall endeavor to develop and explain in some ensuing papers. they who promote the idea of substituting a number of distinct confederacies in the room of the plan of the convention, seem clearly to foresee that the rejection of it would put the continuance of the union in the utmost jeopardy. that certainly would be the case, and i sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the union arrives, america will have reason to exclaim, in the words of the poet: "farewell! a long farewell to all my greatness." publius federalist no. 3 the same subject continued (concerning dangers from foreign force and influence) for the independent journal. saturday, november 3, 1787 jay to the people of the state of new york: it is not a new observation that the people of any country (if, like the americans, intelligent and wellinformed) seldom adopt and steadily persevere for many years in an erroneous opinion respecting their interests. that consideration naturally tends to create great respect for the high opinion which the people of america have so long and uniformly entertained of the importance of their continuing firmly united under one federal government, vested with sufficient powers for all general and national purposes. the more attentively i consider and investigate the reasons which appear to have given birth to this opinion, the more i become convinced that they are cogent and conclusive. among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be the first. the safety of the people doubtless has relation to a great variety of circumstances and considerations, and consequently affords great latitude to those who wish to define it precisely and comprehensively. at present i mean only to consider it as it respects security for the preservation of peace and tranquillity, as well as against dangers from foreign arms and influence, as from dangers of the like kind arising from domestic causes. as the former of these comes first in order, it is proper it should be the first discussed. let us therefore proceed to examine whether the people are not right in their opinion that a cordial union, under an efficient national government, affords them the best security that can be devised against hostilities from abroad. the number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether real or pretended, which provoke or invite them. if this remark be just, it becomes useful to inquire whether so many just causes of war are likely to be given by united america as by disunited america; for if it should turn out that united america will probably give the fewest, then it will follow that in this respect the union tends most to preserve the people in a state of peace with other nations. the just causes of war, for the most part, arise either from violation of treaties or from direct violence. america has already formed treaties with no less than six foreign nations, and all of them, except prussia, are maritime, and therefore able to annoy and injure us. she has also extensive commerce with portugal, spain, and britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to attend to. it is of high importance to the peace of america that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate states or by three or four distinct confederacies. because when once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it; for, although town or country, or other contracted influence, may place men in state assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,--especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the states. hence, it will result that the administration, the political counsels, and the judicial decisions of the national government will be more wise, systematical, and judicious than those of individual states, and consequently more satisfactory with respect to other nations, as well as more safe with respect to us. because, under the national government, treaties and articles of treaties, as well as the laws of nations, will always be expounded in one sense and executed in the same manner,--whereas, adjudications on the same points and questions, in thirteen states, or in three or four confederacies, will not always accord or be consistent; and that, as well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws and interests which may affect and influence them. the wisdom of the convention, in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government, cannot be too much commended. because the prospect of present loss or advantage may often tempt the governing party in one or two states to swerve from good faith and justice; but those temptations, not reaching the other states, and consequently having little or no influence on the national government, the temptation will be fruitless, and good faith and justice be preserved. the case of the treaty of peace with britain adds great weight to this reasoning. because, even if the governing party in a state should be disposed to resist such temptations, yet as such temptations may, and commonly do, result from circumstances peculiar to the state, and may affect a great number of the inhabitants, the governing party may not always be able, if willing, to prevent the injustice meditated, or to punish the aggressors. but the national government, not being affected by those local circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others. so far, therefore, as either designed or accidental violations of treaties and the laws of nations afford just causes of war, they are less to be apprehended under one general government than under several lesser ones, and in that respect the former most favors the safety of the people. as to those just causes of war which proceed from direct and unlawful violence, it appears equally clear to me that one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter. because such violences are more frequently caused by the passions and interests of a part than of the whole; of one or two states than of the union. not a single indian war has yet been occasioned by aggressions of the present federal government, feeble as it is; but there are several instances of indian hostilities having been provoked by the improper conduct of individual states, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants. the neighborhood of spanish and british territories, bordering on some states and not on others, naturally confines the causes of quarrel more immediately to the borderers. the bordering states, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations; and nothing can so effectually obviate that danger as a national government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested. but not only fewer just causes of war will be given by the national government, but it will also be more in their power to accommodate and settle them amicably. they will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act advisedly than the offending state. the pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. the national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them. besides, it is well known that acknowledgments, explanations, and compensations are often accepted as satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a state or confederacy of little consideration or power. in the year 1685, the state of genoa having offended louis xiv., endeavored to appease him. he demanded that they should send their doge, or chief magistrate, accompanied by four of their senators, to france, to ask his pardon and receive his terms. they were obliged to submit to it for the sake of peace. would he on any occasion either have demanded or have received the like humiliation from spain, or britain, or any other powerful nation? publius federalist no. 4 the same subject continued (concerning dangers from foreign force and influence) for the independent journal. wednesday, november 7, 1787 jay to the people of the state of new york: my last paper assigned several reasons why the safety of the people would be best secured by union against the danger it may be exposed to by just causes of war given to other nations; and those reasons show that such causes would not only be more rarely given, but would also be more easily accommodated, by a national government than either by the state governments or the proposed little confederacies. but the safety of the people of america against dangers from foreign force depends not only on their forbearing to give just causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to invite hostility or insult; for it need not be observed that there are pretended as well as just causes of war. it is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. these and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people. but, independent of these inducements to war, which are more prevalent in absolute monarchies, but which well deserve our attention, there are others which affect nations as often as kings; and some of them will on examination be found to grow out of our relative situation and circumstances. with france and with britain we are rivals in the fisheries, and can supply their markets cheaper than they can themselves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish. with them and with most other european nations we are rivals in navigation and the carrying trade; and we shall deceive ourselves if we suppose that any of them will rejoice to see it flourish; for, as our carrying trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more their policy, to restrain than to promote it. in the trade to china and india, we interfere with more than one nation, inasmuch as it enables us to partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with commodities which we used to purchase from them. the extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this continent, because the cheapness and excellence of our productions, added to the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a greater share in the advantages which those territories afford, than consists with the wishes or policy of their respective sovereigns. spain thinks it convenient to shut the mississippi against us on the one side, and britain excludes us from the saint lawrence on the other; nor will either of them permit the other waters which are between them and us to become the means of mutual intercourse and traffic. from these and such like considerations, which might, if consistent with prudence, be more amplified and detailed, it is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets of other nations, and that we are not to expect that they should regard our advancement in union, in power and consequence by land and by sea, with an eye of indifference and composure. the people of america are aware that inducements to war may arise out of these circumstances, as well as from others not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. wisely, therefore, do they consider union and a good national government as necessary to put and keep them in such a situation as, instead of inviting war, will tend to repress and discourage it. that situation consists in the best possible state of defense, and necessarily depends on the government, the arms, and the resources of the country. as the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one good government is not, relative to the object in question, more competent than any other given number whatever. one government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the union they may be found. it can move on uniform principles of policy. it can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. in the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. it can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than state governments or separate confederacies can possibly do, for want of concert and unity of system. it can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the chief magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies. what would the militia of britain be if the english militia obeyed the government of england, if the scotch militia obeyed the government of scotland, and if the welsh militia obeyed the government of wales? suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of great britain would? we have heard much of the fleets of britain, and the time may come, if we are wise, when the fleets of america may engage attention. but if one national government, had not so regulated the navigation of britain as to make it a nursery for seamen--if one national government had not called forth all the national means and materials for forming fleets, their prowess and their thunder would never have been celebrated. let england have its navigation and fleet--let scotland have its navigation and fleet--let wales have its navigation and fleet--let ireland have its navigation and fleet--let those four of the constituent parts of the british empire be be under four independent governments, and it is easy to perceive how soon they would each dwindle into comparative insignificance. apply these facts to our own case. leave america divided into thirteen or, if you please, into three or four independent governments--what armies could they raise and pay--what fleets could they ever hope to have? if one was attacked, would the others fly to its succor, and spend their blood and money in its defense? would there be no danger of their being flattered into neutrality by its specious promises, or seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see diminished? although such conduct would not be wise, it would, nevertheless, be natural. the history of the states of greece, and of other countries, abounds with such instances, and it is not improbable that what has so often happened would, under similar circumstances, happen again. but admit that they might be willing to help the invaded state or confederacy. how, and when, and in what proportion shall aids of men and money be afforded? who shall command the allied armies, and from which of them shall he receive his orders? who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people. but whatever may be our situation, whether firmly united under one national government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will act toward us accordingly. if they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. if, on the other hand, they find us either destitute of an effectual government (each state doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably discordant republics or confederacies, one inclining to britain, another to france, and a third to spain, and perhaps played off against each other by the three, what a poor, pitiful figure will america make in their eyes! how liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves. publius federalist no. 5 the same subject continued (concerning dangers from foreign force and influence) for the independent journal. saturday, november 10, 1787 jay to the people of the state of new york: queen anne, in her letter of the 1st july, 1706, to the scotch parliament, makes some observations on the importance of the union then forming between england and scotland, which merit our attention. i shall present the public with one or two extracts from it: "an entire and perfect union will be the solid foundation of lasting peace: it will secure your religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. it must increase your strength, riches, and trade; and by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be enabled to resist all its enemies." "we most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only effectual way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will doubtless, on this occasion, use their utmost endeavors to prevent or delay this union." it was remarked in the preceding paper, that weakness and divisions at home would invite dangers from abroad; and that nothing would tend more to secure us from them than union, strength, and good government within ourselves. this subject is copious and cannot easily be exhausted. the history of great britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. we may profit by their experience without paying the price which it cost them. although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other. should the people of america divide themselves into three or four nations, would not the same thing happen? would not similar jealousies arise, and be in like manner cherished? instead of their being "joined in affection" and free from all apprehension of different "interests," envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all america, would be the only objects of their policy and pursuits. hence, like most other bordering nations, they would always be either involved in disputes and war, or live in the constant apprehension of them. the most sanguine advocates for three or four confederacies cannot reasonably suppose that they would long remain exactly on an equal footing in point of strength, even if it was possible to form them so at first; but, admitting that to be practicable, yet what human contrivance can secure the continuance of such equality? independent of those local circumstances which tend to beget and increase power in one part and to impede its progress in another, we must advert to the effects of that superior policy and good management which would probably distinguish the government of one above the rest, and by which their relative equality in strength and consideration would be destroyed. for it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years. whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. much time would not be necessary to enable her to discern these unfriendly dispositions. she would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied. the north is generally the region of strength, and many local circumstances render it probable that the most northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. no sooner would this become evident than the northern hive would excite the same ideas and sensations in the more southern parts of america which it formerly did in the southern parts of europe. nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors. they who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers; that they would neither love nor trust one another, but on the contrary would be a prey to discord, jealousy, and mutual injuries; in short, that they would place us exactly in the situations in which some nations doubtless wish to see us, viz., formidable only to each other. from these considerations it appears that those gentlemen are greatly mistaken who suppose that alliances offensive and defensive might be formed between these confederacies, and would produce that combination and union of wills of arms and of resources, which would be necessary to put and keep them in a formidable state of defense against foreign enemies. when did the independent states, into which britain and spain were formerly divided, combine in such alliance, or unite their forces against a foreign enemy? the proposed confederacies will be distinct nations. each of them would have its commerce with foreigners to regulate by distinct treaties; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different. different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations. hence it might and probably would happen that the foreign nation with whom the southern confederacy might be at war would be the one with whom the northern confederacy would be the most desirous of preserving peace and friendship. an alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith. nay, it is far more probable that in america, as in europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides. considering our distance from europe, it would be more natural for these confederacies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. and here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. how many conquests did the romans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect. let candid men judge, then, whether the division of america into any given number of independent sovereignties would tend to secure us against the hostilities and improper interference of foreign nations. publius federalist no. 6 concerning dangers from dissensions between the states for the independent journal. wednesday, november 14, 1787 hamilton to the people of the state of new york: the three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. i shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind--those which will in all probability flow from dissensions between the states themselves, and from domestic factions and convulsions. these have been already in some instances slightly anticipated; but they deserve a more particular and more full investigation. a man must be far gone in utopian speculations who can seriously doubt that, if these states should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. to presume a want of motives for such contests as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious. to look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages. the causes of hostility among nations are innumerable. there are some which have a general and almost constant operation upon the collective bodies of society. of this description are the love of power or the desire of pre-eminence and dominion--the jealousy of power, or the desire of equality and safety. there are others which have a more circumscribed though an equally operative influence within their spheres. such are the rivalships and competitions of commerce between commercial nations. and there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification. the celebrated pericles, in compliance with the resentment of a prostitute,(1) at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the sammians. the same man, stimulated by private pique against the megarensians,(2) another nation of greece, or to avoid a prosecution with which he was threatened as an accomplice of a supposed theft of the statuary phidias,(3) or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity,(4) or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the grecian annals by the name of the peloponnesian war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the athenian commonwealth. the ambitious cardinal, who was prime minister to henry viii., permitting his vanity to aspire to the triple crown,(5) entertained hopes of succeeding in the acquisition of that splendid prize by the influence of the emperor charles v. to secure the favor and interest of this enterprising and powerful monarch, he precipitated england into a war with france, contrary to the plainest dictates of policy, and at the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels, as of europe in general. for if there ever was a sovereign who bid fair to realize the project of universal monarchy, it was the emperor charles v., of whose intrigues wolsey was at once the instrument and the dupe. the influence which the bigotry of one female,(6) the petulance of another,(7) and the cabals of a third,(8) had in the contemporary policy, ferments, and pacifications, of a considerable part of europe, are topics that have been too often descanted upon not to be generally known. to multiply examples of the agency of personal considerations in the production of great national events, either foreign or domestic, according to their direction, would be an unnecessary waste of time. those who have but a superficial acquaintance with the sources from which they are to be drawn, will themselves recollect a variety of instances; and those who have a tolerable knowledge of human nature will not stand in need of such lights to form their opinion either of the reality or extent of that agency. perhaps, however, a reference, tending to illustrate the general principle, may with propriety be made to a case which has lately happened among ourselves. if shays had not been a desperate debtor, it is much to be doubted whether massachusetts would have been plunged into a civil war. but notwithstanding the concurring testimony of experience, in this particular, there are still to be found visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the states, though dismembered and alienated from each other. the genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. they will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord. is it not (we may ask these projectors in politics) the true interest of all nations to cultivate the same benevolent and philosophic spirit? if this be their true interest, have they in fact pursued it? has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice? have republics in practice been less addicted to war than monarchies? are not the former administered by men as well as the latter? are there not aversions, predilections, rivalships, and desires of unjust acquisitions, that affect nations as well as kings? are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? has commerce hitherto done anything more than change the objects of war? is not the love of wealth as domineering and enterprising a passion as that of power or glory? have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other? let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries. sparta, athens, rome, and carthage were all republics; two of them, athens and carthage, of the commercial kind. yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies of the same times. sparta was little better than a wellregulated camp; and rome was never sated of carnage and conquest. carthage, though a commercial republic, was the aggressor in the very war that ended in her destruction. hannibal had carried her arms into the heart of italy and to the gates of rome, before scipio, in turn, gave him an overthrow in the territories of carthage, and made a conquest of the commonwealth. venice, in later times, figured more than once in wars of ambition, till, becoming an object to the other italian states, pope julius ii. found means to accomplish that formidable league,(9) which gave a deadly blow to the power and pride of this haughty republic. the provinces of holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous part in the wars of europe. they had furious contests with england for the dominion of the sea, and were among the most persevering and most implacable of the opponents of louis xiv. in the government of britain the representatives of the people compose one branch of the national legislature. commerce has been for ages the predominant pursuit of that country. few nations, nevertheless, have been more frequently engaged in war; and the wars in which that kingdom has been engaged have, in numerous instances, proceeded from the people. there have been, if i may so express it, almost as many popular as royal wars. the cries of the nation and the importunities of their representatives have, upon various occasions, dragged their monarchs into war, or continued them in it, contrary to their inclinations, and sometimes contrary to the real interests of the state. in that memorable struggle for superiority between the rival houses of austria and bourbon, which so long kept europe in a flame, it is well known that the antipathies of the english against the french, seconding the ambition, or rather the avarice, of a favorite leader,(10) protracted the war beyond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court. the wars of these two last-mentioned nations have in a great measure grown out of commercial considerations,--the desire of supplanting and the fear of being supplanted, either in particular branches of traffic or in the general advantages of trade and navigation, and sometimes even the more culpable desire of sharing in the commerce of other nations without their consent. the last war but between britain and spain sprang from the attempts of the british merchants to prosecute an illicit trade with the spanish main. these unjustifiable practices on their part produced severity on the part of the spaniards toward the subjects of great britain which were not more justifiable, because they exceeded the bounds of a just retaliation and were chargeable with inhumanity and cruelty. many of the english who were taken on the spanish coast were sent to dig in the mines of potosi; and by the usual progress of a spirit of resentment, the innocent were, after a while, confounded with the guilty in indiscriminate punishment. the complaints of the merchants kindled a violent flame throughout the nation, which soon after broke out in the house of commons, and was communicated from that body to the ministry. letters of reprisal were granted, and a war ensued, which in its consequences overthrew all the alliances that but twenty years before had been formed with sanguine expectations of the most beneficial fruits. from this summary of what has taken place in other countries, whose situations have borne the nearest resemblance to our own, what reason can we have to confide in those reveries which would seduce us into an expectation of peace and cordiality between the members of the present confederacy, in a state of separation? have we not already seen enough of the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses and evils incident to society in every shape? is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue? let the point of extreme depression to which our national dignity and credit have sunk, let the inconveniences felt everywhere from a lax and ill administration of government, let the revolt of a part of the state of north carolina, the late menacing disturbances in pennsylvania, and the actual insurrections and rebellions in massachusetts, declare--! so far is the general sense of mankind from corresponding with the tenets of those who endeavor to lull asleep our apprehensions of discord and hostility between the states, in the event of disunion, that it has from long observation of the progress of society become a sort of axiom in politics, that vicinity or nearness of situation, constitutes nations natural enemies. an intelligent writer expresses himself on this subject to this effect: "neighboring nations (says he) are naturally enemies of each other unless their common weakness forces them to league in a confederate republic, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors."(11) this passage, at the same time, points out the evil and suggests the remedy. publius 1. aspasia, vide "plutarch's life of pericles." 2. ibid. 3. ibid. 4. ibid. phidias was supposed to have stolen some public gold, with the connivance of pericles, for the embellishment of the statue of minerva. 5. worn by the popes. 6. madame de maintenon. 7. duchess of marlborough. 8. madame de pompadour. 9. the league of cambray, comprehending the emperor, the king of france, the king of aragon, and most of the italian princes and states. 10. the duke of marlborough. 11. vide "principes des negociations" par l'abbã© de mably. federalist no. 7 the same subject continued (concerning dangers from dissensions between the states) for the independent journal. thursday, november 15, 1787 hamilton to the people of the state of new york: it is sometimes asked, with an air of seeming triumph, what inducements could the states have, if disunited, to make war upon each other? it would be a full answer to this question to say--precisely the same inducements which have, at different times, deluged in blood all the nations in the world. but, unfortunately for us, the question admits of a more particular answer. there are causes of differences within our immediate contemplation, of the tendency of which, even under the restraints of a federal constitution, we have had sufficient experience to enable us to form a judgment of what might be expected if those restraints were removed. territorial disputes have at all times been found one of the most fertile sources of hostility among nations. perhaps the greatest proportion of wars that have desolated the earth have sprung from this origin. this cause would exist among us in full force. we have a vast tract of unsettled territory within the boundaries of the united states. there still are discordant and undecided claims between several of them, and the dissolution of the union would lay a foundation for similar claims between them all. it is well known that they have heretofore had serious and animated discussion concerning the rights to the lands which were ungranted at the time of the revolution, and which usually went under the name of crown lands. the states within the limits of whose colonial governments they were comprised have claimed them as their property, the others have contended that the rights of the crown in this article devolved upon the union; especially as to all that part of the western territory which, either by actual possession, or through the submission of the indian proprietors, was subjected to the jurisdiction of the king of great britain, till it was relinquished in the treaty of peace. this, it has been said, was at all events an acquisition to the confederacy by compact with a foreign power. it has been the prudent policy of congress to appease this controversy, by prevailing upon the states to make cessions to the united states for the benefit of the whole. this has been so far accomplished as, under a continuation of the union, to afford a decided prospect of an amicable termination of the dispute. a dismemberment of the confederacy, however, would revive this dispute, and would create others on the same subject. at present, a large part of the vacant western territory is, by cession at least, if not by any anterior right, the common property of the union. if that were at an end, the states which made the cession, on a principle of federal compromise, would be apt when the motive of the grant had ceased, to reclaim the lands as a reversion. the other states would no doubt insist on a proportion, by right of representation. their argument would be, that a grant, once made, could not be revoked; and that the justice of participating in territory acquired or secured by the joint efforts of the confederacy, remained undiminished. if, contrary to probability, it should be admitted by all the states, that each had a right to a share of this common stock, there would still be a difficulty to be surmounted, as to a proper rule of apportionment. different principles would be set up by different states for this purpose; and as they would affect the opposite interests of the parties, they might not easily be susceptible of a pacific adjustment. in the wide field of western territory, therefore, we perceive an ample theatre for hostile pretensions, without any umpire or common judge to interpose between the contending parties. to reason from the past to the future, we shall have good ground to apprehend, that the sword would sometimes be appealed to as the arbiter of their differences. the circumstances of the dispute between connecticut and pennsylvania, respecting the land at wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences. the articles of confederation obliged the parties to submit the matter to the decision of a federal court. the submission was made, and the court decided in favor of pennsylvania. but connecticut gave strong indications of dissatisfaction with that determination; nor did she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained. nothing here said is intended to convey the slightest censure on the conduct of that state. she no doubt sincerely believed herself to have been injured by the decision; and states, like individuals, acquiesce with great reluctance in determinations to their disadvantage. those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this state and the district of vermont, can vouch the opposition we experienced, as well from states not interested as from those which were interested in the claim; and can attest the danger to which the peace of the confederacy might have been exposed, had this state attempted to assert its rights by force. two motives preponderated in that opposition: one, a jealousy entertained of our future power; and the other, the interest of certain individuals of influence in the neighboring states, who had obtained grants of lands under the actual government of that district. even the states which brought forward claims, in contradiction to ours, seemed more solicitous to dismember this state, than to establish their own pretensions. these were new hampshire, massachusetts, and connecticut. new jersey and rhode island, upon all occasions, discovered a warm zeal for the independence of vermont; and maryland, till alarmed by the appearance of a connection between canada and that state, entered deeply into the same views. these being small states, saw with an unfriendly eye the perspective of our growing greatness. in a review of these transactions we may trace some of the causes which would be likely to embroil the states with each other, if it should be their unpropitious destiny to become disunited. the competitions of commerce would be another fruitful source of contention. the states less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. each state, or separate confederacy, would pursue a system of commercial policy peculiar to itself. this would occasion distinctions, preferences, and exclusions, which would beget discontent. the habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance. we should be ready to denominate injuries those things which were in reality the justifiable acts of independent sovereignties consulting a distinct interest. the spirit of enterprise, which characterizes the commercial part of america, has left no occasion of displaying itself unimproved. it is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular states might endeavor to secure exclusive benefits to their own citizens. the infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and wars. the opportunities which some states would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary states. the relative situation of new york, connecticut, and new jersey would afford an example of this kind. new york, from the necessities of revenue, must lay duties on her importations. a great part of these duties must be paid by the inhabitants of the two other states in the capacity of consumers of what we import. new york would neither be willing nor able to forego this advantage. her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets. would connecticut and new jersey long submit to be taxed by new york for her exclusive benefit? should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? should we be able to preserve it against the incumbent weight of connecticut on the one side, and the co-operating pressure of new jersey on the other? these are questions that temerity alone will answer in the affirmative. the public debt of the union would be a further cause of collision between the separate states or confederacies. the apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill-humor and animosity. how would it be possible to agree upon a rule of apportionment satisfactory to all? there is scarcely any that can be proposed which is entirely free from real objections. these, as usual, would be exaggerated by the adverse interest of the parties. there are even dissimilar views among the states as to the general principle of discharging the public debt. some of them, either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at any rate. these would be inclined to magnify the difficulties of a distribution. others of them, a numerous body of whose citizens are creditors to the public beyond proportion of the state in the total amount of the national debt, would be strenuous for some equitable and effective provision. the procrastinations of the former would excite the resentments of the latter. the settlement of a rule would, in the meantime, be postponed by real differences of opinion and affected delays. the citizens of the states interested would clamour; foreign powers would urge for the satisfaction of their just demands, and the peace of the states would be hazarded to the double contingency of external invasion and internal contention. suppose the difficulties of agreeing upon a rule surmounted, and the apportionment made. still there is great room to suppose that the rule agreed upon would, upon experiment, be found to bear harder upon some states than upon others. those which were sufferers by it would naturally seek for a mitigation of the burden. the others would as naturally be disinclined to a revision, which was likely to end in an increase of their own incumbrances. their refusal would be too plausible a pretext to the complaining states to withhold their contributions, not to be embraced with avidity; and the non-compliance of these states with their engagements would be a ground of bitter discussion and altercation. if even the rule adopted should in practice justify the equality of its principle, still delinquencies in payments on the part of some of the states would result from a diversity of other causes--the real deficiency of resources; the mismanagement of their finances; accidental disorders in the management of the government; and, in addition to the rest, the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them, and interfere with the supply of immediate wants. delinquencies, from whatever causes, would be productive of complaints, recriminations, and quarrels. there is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. for it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money. laws in violation of private contracts, as they amount to aggressions on the rights of those states whose citizens are injured by them, may be considered as another probable source of hostility. we are not authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the individual states hereafter, if unrestrained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes. we have observed the disposition to retaliation excited in connecticut in consequence of the enormities perpetrated by the legislature of rhode island; and we reasonably infer that, in similar cases, under other circumstances, a war, not of parchment, but of the sword, would chastise such atrocious breaches of moral obligation and social justice. the probability of incompatible alliances between the different states or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. from the view they have exhibited of this part of the subject, this conclusion is to be drawn, that america, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of european politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all. divide et impera(1) must be the motto of every nation that either hates or fears us.(2) publius 1. divide and command. 2. in order that the whole subject of these papers may as soon as possible be laid before the public, it is proposed to publish them four times a week--on tuesday in the new york packet and on thursday in the daily advertiser. federalist no. 8 the consequences of hostilities between the states from the new york packet. tuesday, november 20, 1787. hamilton to the people of the state of new york: assuming it therefore as an established truth that the several states, in case of disunion, or such combinations of them as might happen to be formed out of the wreck of the general confederacy, would be subject to those vicissitudes of peace and war, of friendship and enmity, with each other, which have fallen to the lot of all neighboring nations not united under one government, let us enter into a concise detail of some of the consequences that would attend such a situation. war between the states, in the first period of their separate existence, would be accompanied with much greater distresses than it commonly is in those countries where regular military establishments have long obtained. the disciplined armies always kept on foot on the continent of europe, though they bear a malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advantage of rendering sudden conquests impracticable, and of preventing that rapid desolation which used to mark the progress of war prior to their introduction. the art of fortification has contributed to the same ends. the nations of europe are encircled with chains of fortified places, which mutually obstruct invasion. campaigns are wasted in reducing two or three frontier garrisons, to gain admittance into an enemy's country. similar impediments occur at every step, to exhaust the strength and delay the progress of an invader. formerly, an invading army would penetrate into the heart of a neighboring country almost as soon as intelligence of its approach could be received; but now a comparatively small force of disciplined troops, acting on the defensive, with the aid of posts, is able to impede, and finally to frustrate, the enterprises of one much more considerable. the history of war, in that quarter of the globe, is no longer a history of nations subdued and empires overturned, but of towns taken and retaken; of battles that decide nothing; of retreats more beneficial than victories; of much effort and little acquisition. in this country the scene would be altogether reversed. the jealousy of military establishments would postpone them as long as possible. the want of fortifications, leaving the frontiers of one state open to another, would facilitate inroads. the populous states would, with little difficulty, overrun their less populous neighbors. conquests would be as easy to be made as difficult to be retained. war, therefore, would be desultory and predatory. plunder and devastation ever march in the train of irregulars. the calamities of individuals would make the principal figure in the events which would characterize our military exploits. this picture is not too highly wrought; though, i confess, it would not long remain a just one. safety from external danger is the most powerful director of national conduct. even the ardent love of liberty will, after a time, give way to its dictates. the violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. to be more safe, they at length become willing to run the risk of being less free. the institutions chiefly alluded to are standing armies and the correspondent appendages of military establishments. standing armies, it is said, are not provided against in the new constitution; and it is therefore inferred that they may exist under it.(1) their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. but standing armies, it may be replied, must inevitably result from a dissolution of the confederacy. frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. the weaker states or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. they would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. they would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. it is of the nature of war to increase the executive at the expense of the legislative authority. the expedients which have been mentioned would soon give the states or confederacies that made use of them a superiority over their neighbors. small states, or states of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. neither the pride nor the safety of the more important states or confederacies would permit them long to submit to this mortifying and adventitious superiority. they would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre-eminence. thus, we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the old world. this, at least, would be the natural course of things; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard. these are not vague inferences drawn from supposed or speculative defects in a constitution, the whole power of which is lodged in the hands of a people, or their representatives and delegates, but they are solid conclusions, drawn from the natural and necessary progress of human affairs. it may, perhaps, be asked, by way of objection to this, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of greece? different answers, equally satisfactory, may be given to this question. the industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those republics. the means of revenue, which have been so greatly multiplied by the increase of gold and silver and of the arts of industry, and the science of finance, which is the offspring of modern times, concurring with the habits of nations, have produced an entire revolution in the system of war, and have rendered disciplined armies, distinct from the body of the citizens, the inseparable companions of frequent hostility. there is a wide difference, also, between military establishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. the rulers of the former can have no good pretext, if they are even so inclined, to keep on foot armies so numerous as must of necessity be maintained in the latter. these armies being, in the first case, rarely, if at all, called into activity for interior defense, the people are in no danger of being broken to military subordination. the laws are not accustomed to relaxations, in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. the smallness of the army renders the natural strength of the community an overmatch for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. the army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the people. in a country in the predicament last described, the contrary of all this happens. the perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. the continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. the military state becomes elevated above the civil. the inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. the transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power. the kingdom of great britain falls within the first description. an insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. a sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. no motive of national policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its domestic establishment. there has been, for a long time past, little room for the operation of the other causes, which have been enumerated as the consequences of internal war. this peculiar felicity of situation has, in a great degree, contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption. if, on the contrary, britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home coextensive with those of the other great powers of europe, she, like them, would in all probability be, at this day, a victim to the absolute power of a single man. it is possible, though not easy, that the people of that island may be enslaved from other causes; but it cannot be by the prowess of an army so inconsiderable as that which has been usually kept up within the kingdom. if we are wise enough to preserve the union we may for ages enjoy an advantage similar to that of an insulated situation. europe is at a great distance from us. her colonies in our vicinity will be likely to continue too much disproportioned in strength to be able to give us any dangerous annoyance. extensive military establishments cannot, in this position, be necessary to our security. but if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of europe--our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other. this is an idea not superficial or futile, but solid and weighty. it deserves the most serious and mature consideration of every prudent and honest man of whatever party. if such men will make a firm and solemn pause, and meditate dispassionately on the importance of this interesting idea; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a constitution, the rejection of which would in all probability put a final period to the union. the airy phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place to the more substantial forms of dangers, real, certain, and formidable. publius 1. this objection will be fully examined in its proper place, and it will be shown that the only natural precaution which could have been taken on this subject has been taken; and a much better one than is to be found in any constitution that has been heretofore framed in america, most of which contain no guard at all on this subject. federalist no. 9 the union as a safeguard against domestic faction and insurrection for the independent journal. wednesday, november 21, 1787 hamilton to the people of the state of new york: a firm union will be of the utmost moment to the peace and liberty of the states, as a barrier against domestic faction and insurrection. it is impossible to read the history of the petty republics of greece and italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. if they exhibit occasional calms, these only serve as short-lived contrast to the furious storms that are to succeed. if now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. if momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated. from the disorders that disfigure the annals of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty. they have decried all free government as inconsistent with the order of society, and have indulged themselves in malicious exultation over its friends and partisans. happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. and, i trust, america will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments of their errors. but it is not to be denied that the portraits they have sketched of republican government were too just copies of the originals from which they were taken. if it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of government as indefensible. the science of politics, however, like most other sciences, has received great improvement. the efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. the regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. they are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided. to this catalogue of circumstances that tend to the amelioration of popular systems of civil government, i shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new constitution; i mean the enlargement of the orbit within which such systems are to revolve, either in respect to the dimensions of a single state or to the consolidation of several smaller states into one great confederacy. the latter is that which immediately concerns the object under consideration. it will, however, be of use to examine the principle in its application to a single state, which shall be attended to in another place. the utility of a confederacy, as well to suppress faction and to guard the internal tranquillity of states, as to increase their external force and security, is in reality not a new idea. it has been practiced upon in different countries and ages, and has received the sanction of the most approved writers on the subject of politics. the opponents of the plan proposed have, with great assiduity, cited and circulated the observations of montesquieu on the necessity of a contracted territory for a republican government. but they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence. when montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these states. neither virginia, massachusetts, pennsylvania, new york, north carolina, nor georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. if we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt. some of the writers who have come forward on the other side of the question seem to have been aware of the dilemma; and have even been bold enough to hint at the division of the larger states as a desirable thing. such an infatuated policy, such a desperate expedient, might, by the multiplication of petty offices, answer the views of men who possess not qualifications to extend their influence beyond the narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of america. referring the examination of the principle itself to another place, as has been already mentioned, it will be sufficient to remark here that, in the sense of the author who has been most emphatically quoted upon the occasion, it would only dictate a reduction of the size of the more considerable members of the union, but would not militate against their being all comprehended in one confederate government. and this is the true question, in the discussion of which we are at present interested. so far are the suggestions of montesquieu from standing in opposition to a general union of the states, that he explicitly treats of a confederate republic as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism. "it is very probable," (says he(1)) "that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. i mean a confederate republic." "this form of government is a convention by which several smaller states agree to become members of a larger one, which they intend to form. it is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body." "a republic of this kind, able to withstand an external force, may support itself without any internal corruptions. the form of this society prevents all manner of inconveniences." "if a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. were he to have too great influence over one, this would alarm the rest. were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation." "should a popular insurrection happen in one of the confederate states the others are able to quell it. should abuses creep into one part, they are reformed by those that remain sound. the state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty." "as this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies." i have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. they have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the union to repress domestic faction and insurrection. a distinction, more subtle than accurate, has been raised between a confederacy and a consolidation of the states. the essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. it is contended that the national council ought to have no concern with any object of internal administration. an exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. these positions are, in the main, arbitrary; they are supported neither by principle nor precedent. it has indeed happened, that governments of this kind have generally operated in the manner which the distinction taken notice of, supposes to be inherent in their nature; but there have been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go, that there is no absolute rule on the subject. and it will be clearly shown in the course of this investigation that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government. the definition of a confederate republic seems simply to be "an assemblage of societies," or an association of two or more states into one state. the extent, modifications, and objects of the federal authority are mere matters of discretion. so long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. the proposed constitution, so far from implying an abolition of the state governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the senate, and leaves in their possession certain exclusive and very important portions of sovereign power. this fully corresponds, in every rational import of the terms, with the idea of a federal government. in the lycian confederacy, which consisted of twenty-three cities or republics, the largest were entitled to three votes in the common council, those of the middle class to two, and the smallest to one. the common council had the appointment of all the judges and magistrates of the respective cities. this was certainly the most, delicate species of interference in their internal administration; for if there be any thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own officers. yet montesquieu, speaking of this association, says: "were i to give a model of an excellent confederate republic, it would be that of lycia." thus we perceive that the distinctions insisted upon were not within the contemplation of this enlightened civilian; and we shall be led to conclude, that they are the novel refinements of an erroneous theory. publius 1. "spirit of laws," vol. i., book ix., chap. i. federalist no. 10 the same subject continued (the union as a safeguard against domestic faction and insurrection) from the daily advertiser. thursday, november 22, 1787. madison to the people of the state of new york: among the numerous advantages promised by a well constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. the friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. he will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. the instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. the valuable improvements made by the american constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. however anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. it will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. these must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations. by a faction, i understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. there are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. there are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. it could never be more truly said than of the first remedy, that it was worse than the disease. liberty is to faction what air is to fire, an aliment without which it instantly expires. but it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. the second expedient is as impracticable as the first would be unwise. as long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. as long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. the diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. the protection of these faculties is the first object of government. from the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties. the latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. a zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. so strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. but the most common and durable source of factions has been the various and unequal distribution of property. those who hold and those who are without property have ever formed distinct interests in society. those who are creditors, and those who are debtors, fall under a like discrimination. a landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. the regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government. no man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. with equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? and what are the different classes of legislators but advocates and parties to the causes which they determine? is a law proposed concerning private debts? it is a question to which the creditors are parties on one side and the debtors on the other. justice ought to hold the balance between them. yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. the apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. every shilling with which they overburden the inferior number, is a shilling saved to their own pockets. it is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. enlightened statesmen will not always be at the helm. nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole. the inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects. if a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. it may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the constitution. when a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. to secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind. by what means is this object attainable? evidently by one of two only. either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. if the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. they are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful. from this view of the subject it may be concluded that a pure democracy, by which i mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. a common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. a republic, by which i mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the union. the two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. the effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. on the other hand, the effect may be inverted. men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. the question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations: in the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice. in the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters. it must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. by enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. the federal constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the state legislatures. the other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. the smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary. hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the union over the states composing it. does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? it will not be denied that the representation of the union will be most likely to possess these requisite endowments. does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? in an equal degree does the increased variety of parties comprised within the union, increase this security. does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? here, again, the extent of the union gives it the most palpable advantage. the influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states. a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire state. in the extent and proper structure of the union, therefore, we behold a republican remedy for the diseases most incident to republican government. and according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of federalists. publius federalist no. 11 the utility of the union in respect to commercial relations and a navy for the independent journal. saturday, november 24, 1787 hamilton to the people of the state of new york: the importance of the union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject. this applies as well to our intercourse with foreign countries as with each other. there are appearances to authorize a supposition that the adventurous spirit, which distinguishes the commercial character of america, has already excited uneasy sensations in several of the maritime powers of europe. they seem to be apprehensive of our too great interference in that carrying trade, which is the support of their navigation and the foundation of their naval strength. those of them which have colonies in america look forward to what this country is capable of becoming, with painful solicitude. they foresee the dangers that may threaten their american dominions from the neighborhood of states, which have all the dispositions, and would possess all the means, requisite to the creation of a powerful marine. impressions of this kind will naturally indicate the policy of fostering divisions among us, and of depriving us, as far as possible, of an active commerce in our own bottoms. this would answer the threefold purpose of preventing our interference in their navigation, of monopolizing the profits of our trade, and of clipping the wings by which we might soar to a dangerous greatness. did not prudence forbid the detail, it would not be difficult to trace, by facts, the workings of this policy to the cabinets of ministers. if we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. by prohibitory regulations, extending, at the same time, throughout the states, we may oblige foreign countries to bid against each other, for the privileges of our markets. this assertion will not appear chimerical to those who are able to appreciate the importance of the markets of three millions of people--increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local circumstances to remain so--to any manufacturing nation; and the immense difference there would be to the trade and navigation of such a nation, between a direct communication in its own ships, and an indirect conveyance of its products and returns, to and from america, in the ships of another country. suppose, for instance, we had a government in america, capable of excluding great britain (with whom we have at present no treaty of commerce) from all our ports; what would be the probable operation of this step upon her politics? would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom? when these questions have been asked, upon other occasions, they have received a plausible, but not a solid or satisfactory answer. it has been said that prohibitions on our part would produce no change in the system of britain, because she could prosecute her trade with us through the medium of the dutch, who would be her immediate customers and paymasters for those articles which were wanted for the supply of our markets. but would not her navigation be materially injured by the loss of the important advantage of being her own carrier in that trade? would not the principal part of its profits be intercepted by the dutch, as a compensation for their agency and risk? would not the mere circumstance of freight occasion a considerable deduction? would not so circuitous an intercourse facilitate the competitions of other nations, by enhancing the price of british commodities in our markets, and by transferring to other hands the management of this interesting branch of the british commerce? a mature consideration of the objects suggested by these questions will justify a belief that the real disadvantages to britain from such a state of things, conspiring with the pre-possessions of a great part of the nation in favor of the american trade, and with the importunities of the west india islands, would produce a relaxation in her present system, and would let us into the enjoyment of privileges in the markets of those islands elsewhere, from which our trade would derive the most substantial benefits. such a point gained from the british government, and which could not be expected without an equivalent in exemptions and immunities in our markets, would be likely to have a correspondent effect on the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade. a further resource for influencing the conduct of european nations toward us, in this respect, would arise from the establishment of a federal navy. there can be no doubt that the continuance of the union under an efficient government would put it in our power, at a period not very distant, to create a navy which, if it could not vie with those of the great maritime powers, would at least be of respectable weight if thrown into the scale of either of two contending parties. this would be more peculiarly the case in relation to operations in the west indies. a few ships of the line, sent opportunely to the reinforcement of either side, would often be sufficient to decide the fate of a campaign, on the event of which interests of the greatest magnitude were suspended. our position is, in this respect, a most commanding one. and if to this consideration we add that of the usefulness of supplies from this country, in the prosecution of military operations in the west indies, it will readily be perceived that a situation so favorable would enable us to bargain with great advantage for commercial privileges. a price would be set not only upon our friendship, but upon our neutrality. by a steady adherence to the union we may hope, erelong, to become the arbiter of europe in america, and to be able to incline the balance of european competitions in this part of the world as our interest may dictate. but in the reverse of this eligible situation, we shall discover that the rivalships of the parts would make them checks upon each other, and would frustrate all the tempting advantages which nature has kindly placed within our reach. in a state so insignificant our commerce would be a prey to the wanton intermeddlings of all nations at war with each other; who, having nothing to fear from us, would with little scruple or remorse, supply their wants by depredations on our property as often as it fell in their way. the rights of neutrality will only be respected when they are defended by an adequate power. a nation, despicable by its weakness, forfeits even the privilege of being neutral. under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of european jealousy to restrain our growth. this situation would even take away the motive to such combinations, by inducing an impracticability of success. an active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. we might defy the little arts of the little politicians to control or vary the irresistible and unchangeable course of nature. but in a state of disunion, these combinations might exist and might operate with success. it would be in the power of the maritime nations, availing themselves of our universal impotence, to prescribe the conditions of our political existence; and as they have a common interest in being our carriers, and still more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation in such a manner as would in effect destroy it, and confine us to a passive commerce. we should then be compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors. that unequaled spirit of enterprise, which signalizes the genius of the american merchants and navigators, and which is in itself an inexhaustible mine of national wealth, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world. there are rights of great moment to the trade of america which are rights of the union--i allude to the fisheries, to the navigation of the western lakes, and to that of the mississippi. the dissolution of the confederacy would give room for delicate questions concerning the future existence of these rights; which the interest of more powerful partners would hardly fail to solve to our disadvantage. the disposition of spain with regard to the mississippi needs no comment. france and britain are concerned with us in the fisheries, and view them as of the utmost moment to their navigation. they, of course, would hardly remain long indifferent to that decided mastery, of which experience has shown us to be possessed in this valuable branch of traffic, and by which we are able to undersell those nations in their own markets. what more natural than that they should be disposed to exclude from the lists such dangerous competitors? this branch of trade ought not to be considered as a partial benefit. all the navigating states may, in different degrees, advantageously participate in it, and under circumstances of a greater extension of mercantile capital, would not be unlikely to do it. as a nursery of seamen, it now is, or when time shall have more nearly assimilated the principles of navigation in the several states, will become, a universal resource. to the establishment of a navy, it must be indispensable. to this great national object, a navy, union will contribute in various ways. every institution will grow and flourish in proportion to the quantity and extent of the means concentred towards its formation and support. a navy of the united states, as it would embrace the resources of all, is an object far less remote than a navy of any single state or partial confederacy, which would only embrace the resources of a single part. it happens, indeed, that different portions of confederated america possess each some peculiar advantage for this essential establishment. the more southern states furnish in greater abundance certain kinds of naval stores--tar, pitch, and turpentine. their wood for the construction of ships is also of a more solid and lasting texture. the difference in the duration of the ships of which the navy might be composed, if chiefly constructed of southern wood, would be of signal importance, either in the view of naval strength or of national economy. some of the southern and of the middle states yield a greater plenty of iron, and of better quality. seamen must chiefly be drawn from the northern hive. the necessity of naval protection to external or maritime commerce does not require a particular elucidation, no more than the conduciveness of that species of commerce to the prosperity of a navy. an unrestrained intercourse between the states themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. the veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. commercial enterprise will have much greater scope, from the diversity in the productions of different states. when the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. the variety, not less than the value, of products for exportation contributes to the activity of foreign commerce. it can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value; arising from the competitions of trade and from the fluctuations of markets. particular articles may be in great demand at certain periods, and unsalable at others; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. the speculative trader will at once perceive the force of these observations, and will acknowledge that the aggregate balance of the commerce of the united states would bid fair to be much more favorable than that of the thirteen states without union or with partial unions. it may perhaps be replied to this, that whether the states are united or disunited, there would still be an intimate intercourse between them which would answer the same ends; this intercourse would be fettered, interrupted, and narrowed by a multiplicity of causes, which in the course of these papers have been amply detailed. a unity of commercial, as well as political, interests, can only result from a unity of government. there are other points of view in which this subject might be placed, of a striking and animating kind. but they would lead us too far into the regions of futurity, and would involve topics not proper for a newspaper discussion. i shall briefly observe, that our situation invites and our interests prompt us to aim at an ascendant in the system of american affairs. the world may politically, as well as geographically, be divided into four parts, each having a distinct set of interests. unhappily for the other three, europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. africa, asia, and america, have successively felt her domination. the superiority she has long maintained has tempted her to plume herself as the mistress of the world, and to consider the rest of mankind as created for her benefit. men admired as profound philosophers have, in direct terms, attributed to her inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in america--that even dogs cease to bark after having breathed awhile in our atmosphere.(1) facts have too long supported these arrogant pretensions of the europeans. it belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. union will enable us to do it. disunion will will add another victim to his triumphs. let americans disdain to be the instruments of european greatness! let the thirteen states, bound together in a strict and indissoluble union, concur in erecting one great american system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world! publius "recherches philosophiques sur les americains." federalist no. 12 the utility of the union in respect to revenue from the new york packet. tuesday, november 27, 1787. hamilton to the people of the state of new york: the effects of union upon the commercial prosperity of the states have been sufficiently delineated. its tendency to promote the interests of revenue will be the subject of our present inquiry. the prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares. by multiplying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate the channels of industry, and to make them flow with greater activity and copiousness. the assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,--all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils. the often-agitated question between agriculture and commerce has, from indubitable experience, received a decision which has silenced the rivalship that once subsisted between them, and has proved, to the satisfaction of their friends, that their interests are intimately blended and interwoven. it has been found in various countries that, in proportion as commerce has flourished, land has risen in value. and how could it have happened otherwise? could that which procures a freer vent for the products of the earth, which furnishes new incitements to the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state--could that, in fine, which is the faithful handmaid of labor and industry, in every shape, fail to augment that article, which is the prolific parent of far the greatest part of the objects upon which they are exerted? it is astonishing that so simple a truth should ever have had an adversary; and it is one, among a multitude of proofs, how apt a spirit of ill-informed jealousy, or of too great abstraction and refinement, is to lead men astray from the plainest truths of reason and conviction. the ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates. commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury. the hereditary dominions of the emperor of germany contain a great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. in some parts of this territory are to be found the best gold and silver mines in europe. and yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues. he has several times been compelled to owe obligations to the pecuniary succors of other nations for the preservation of his essential interests, and is unable, upon the strength of his own resources, to sustain a long or continued war. but it is not in this aspect of the subject alone that union will be seen to conduce to the purpose of revenue. there are other points of view, in which its influence will appear more immediate and decisive. it is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation. tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the states have remained empty. the popular system of administration inherent in the nature of popular government, coinciding with the real scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them. no person acquainted with what happens in other countries will be surprised at this circumstance. in so opulent a nation as that of britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in america, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. duties on imported articles form a large branch of this latter description. in america, it is evident that we must a long time depend for the means of revenue chiefly on such duties. in most parts of it, excises must be confined within a narrow compass. the genius of the people will ill brook the inquisitive and peremptory spirit of excise laws. the pockets of the farmers, on the other hand, will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands; and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the imperceptible agency of taxes on consumption. if these remarks have any foundation, that state of things which will best enable us to improve and extend so valuable a resource must be best adapted to our political welfare. and it cannot admit of a serious doubt, that this state of things must rest on the basis of a general union. as far as this would be conducive to the interests of commerce, so far it must tend to the extension of the revenue to be drawn from that source. as far as it would contribute to rendering regulations for the collection of the duties more simple and efficacious, so far it must serve to answer the purposes of making the same rate of duties more productive, and of putting it into the power of the government to increase the rate without prejudice to trade. the relative situation of these states; the number of rivers with which they are intersected, and of bays that wash their shores; the facility of communication in every direction; the affinity of language and manners; the familiar habits of intercourse;--all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other. the separate states or confederacies would be necessitated by mutual jealousy to avoid the temptations to that kind of trade by the lowness of their duties. the temper of our governments, for a long time to come, would not permit those rigorous precautions by which the european nations guard the avenues into their respective countries, as well by land as by water; and which, even there, are found insufficient obstacles to the adventurous stratagems of avarice. in france, there is an army of patrols (as they are called) constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. mr. neckar computes the number of these patrols at upwards of twenty thousand. this shows the immense difficulty in preventing that species of traffic, where there is an inland communication, and places in a strong light the disadvantages with which the collection of duties in this country would be encumbered, if by disunion the states should be placed in a situation, with respect to each other, resembling that of france with respect to her neighbors. the arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a free country. if, on the contrary, there be but one government pervading all the states, there will be, as to the principal part of our commerce, but one side to guard--the atlantic coast. vessels arriving directly from foreign countries, laden with valuable cargoes, would rarely choose to hazard themselves to the complicated and critical perils which would attend attempts to unlade prior to their coming into port. they would have to dread both the dangers of the coast, and of detection, as well after as before their arrival at the places of their final destination. an ordinary degree of vigilance would be competent to the prevention of any material infractions upon the rights of the revenue. a few armed vessels, judiciously stationed at the entrances of our ports, might at a small expense be made useful sentinels of the laws. and the government having the same interest to provide against violations everywhere, the co-operation of its measures in each state would have a powerful tendency to render them effectual. here also we should preserve by union, an advantage which nature holds out to us, and which would be relinquished by separation. the united states lie at a great distance from europe, and at a considerable distance from all other places with which they would have extensive connections of foreign trade. the passage from them to us, in a few hours, or in a single night, as between the coasts of france and britain, and of other neighboring nations, would be impracticable. this is a prodigious security against a direct contraband with foreign countries; but a circuitous contraband to one state, through the medium of another, would be both easy and safe. the difference between a direct importation from abroad, and an indirect importation through the channel of a neighboring state, in small parcels, according to time and opportunity, with the additional facilities of inland communication, must be palpable to every man of discernment. it is therefore evident, that one national government would be able, at much less expense, to extend the duties on imports, beyond comparison, further than would be practicable to the states separately, or to any partial confederacies. hitherto, i believe, it may safely be asserted, that these duties have not upon an average exceeded in any state three per cent. in france they are estimated to be about fifteen per cent., and in britain they exceed this proportion.(1) there seems to be nothing to hinder their being increased in this country to at least treble their present amount. the single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. upon a ratio to the importation into this state, the whole quantity imported into the united states may be estimated at four millions of gallons; which, at a shilling per gallon, would produce two hundred thousand pounds. that article would well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. there is, perhaps, nothing so much a subject of national extravagance as these spirits. what will be the consequence, if we are not able to avail ourselves of the resource in question in its full extent? a nation cannot long exist without revenues. destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. this is an extremity to which no government will of choice accede. revenue, therefore, must be had at all events. in this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. it has been already intimated that excises, in their true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation; nor, indeed, in the states where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. personal estate (as has been before remarked), from the difficulty in tracing it, cannot be subjected to large contributions, by any other means than by taxes on consumption. in populous cities, it may be enough the subject of conjecture, to occasion the oppression of individuals, without much aggregate benefit to the state; but beyond these circles, it must, in a great measure, escape the eye and the hand of the tax-gatherer. as the necessities of the state, nevertheless, must be satisfied in some mode or other, the defect of other resources must throw the principal weight of public burdens on the possessors of land. and as, on the other hand, the wants of the government can never obtain an adequate supply, unless all the sources of revenue are open to its demands, the finances of the community, under such embarrassments, cannot be put into a situation consistent with its respectability or its security. thus we shall not even have the consolations of a full treasury, to atone for the oppression of that valuable class of the citizens who are employed in the cultivation of the soil. but public and private distress will keep pace with each other in gloomy concert; and unite in deploring the infatuation of those counsels which led to disunion. publius 1. if my memory be right they amount to twenty per cent. federalist no. 13 advantage of the union in respect to economy in government for the independent journal. wednesday, november 28, 1787 hamilton to the people of the state of new york: as connected with the subject of revenue, we may with propriety consider that of economy. the money saved from one object may be usefully applied to another, and there will be so much the less to be drawn from the pockets of the people. if the states are united under one government, there will be but one national civil list to support; if they are divided into several confederacies, there will be as many different national civil lists to be provided for--and each of them, as to the principal departments, coextensive with that which would be necessary for a government of the whole. the entire separation of the states into thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many advocates. the ideas of men who speculate upon the dismemberment of the empire seem generally turned toward three confederacies--one consisting of the four northern, another of the four middle, and a third of the five southern states. there is little probability that there would be a greater number. according to this distribution, each confederacy would comprise an extent of territory larger than that of the kingdom of great britain. no well-informed man will suppose that the affairs of such a confederacy can be properly regulated by a government less comprehensive in its organs or institutions than that which has been proposed by the convention. when the dimensions of a state attain to a certain magnitude, it requires the same energy of government and the same forms of administration which are requisite in one of much greater extent. this idea admits not of precise demonstration, because there is no rule by which we can measure the momentum of civil power necessary to the government of any given number of individuals; but when we consider that the island of britain, nearly commensurate with each of the supposed confederacies, contains about eight millions of people, and when we reflect upon the degree of authority required to direct the passions of so large a society to the public good, we shall see no reason to doubt that the like portion of power would be sufficient to perform the same task in a society far more numerous. civil power, properly organized and exerted, is capable of diffusing its force to a very great extent; and can, in a manner, reproduce itself in every part of a great empire by a judicious arrangement of subordinate institutions. the supposition that each confederacy into which the states would be likely to be divided would require a government not less comprehensive than the one proposed, will be strengthened by another supposition, more probable than that which presents us with three confederacies as the alternative to a general union. if we attend carefully to geographical and commercial considerations, in conjunction with the habits and prejudices of the different states, we shall be led to conclude that in case of disunion they will most naturally league themselves under two governments. the four eastern states, from all the causes that form the links of national sympathy and connection, may with certainty be expected to unite. new york, situated as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that confederacy. there are other obvious reasons that would facilitate her accession to it. new jersey is too small a state to think of being a frontier, in opposition to this still more powerful combination; nor do there appear to be any obstacles to her admission into it. even pennsylvania would have strong inducements to join the northern league. an active foreign commerce, on the basis of her own navigation, is her true policy, and coincides with the opinions and dispositions of her citizens. the more southern states, from various circumstances, may not think themselves much interested in the encouragement of navigation. they may prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities. pennsylvania may not choose to confound her interests in a connection so adverse to her policy. as she must at all events be a frontier, she may deem it most consistent with her safety to have her exposed side turned towards the weaker power of the southern, rather than towards the stronger power of the northern, confederacy. this would give her the fairest chance to avoid being the flanders of america. whatever may be the determination of pennsylvania, if the northern confederacy includes new jersey, there is no likelihood of more than one confederacy to the south of that state. nothing can be more evident than that the thirteen states will be able to support a national government better than one half, or one third, or any number less than the whole. this reflection must have great weight in obviating that objection to the proposed plan, which is founded on the principle of expense; an objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on mistaken ground. if, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who must necessarily be employed to guard the inland communication between the different confederacies against illicit trade, and who in time will infallibly spring up out of the necessities of revenue; and if we also take into view the military establishments which it has been shown would unavoidably result from the jealousies and conflicts of the several nations into which the states would be divided, we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of every part. publius federalist no. 14 objections to the proposed constitution from extent of territory answered from the new york packet. friday, november 30, 1787. madison to the people of the state of new york: we have seen the necessity of the union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the old world, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. all that remains, within this branch of our inquiries, is to take notice of an objection that may be drawn from the great extent of country which the union embraces. a few observations on this subject will be the more proper, as it is perceived that the adversaries of the new constitution are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find. the error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. i remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. the true distinction between these forms was also adverted to on a former occasion. it is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. a democracy, consequently, will be confined to a small spot. a republic may be extended over a large region. to this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient greece and modern italy. under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory. such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. if europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentred, and its force directed to any object which the public good requires, america can claim the merit of making the discovery the basis of unmixed and extensive republics. it is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration. as the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the centre which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs. can it be said that the limits of the united states exceed this distance? it will not be said by those who recollect that the atlantic coast is the longest side of the union, that during the term of thirteen years, the representatives of the states have been almost continually assembled, and that the members from the most distant states are not chargeable with greater intermissions of attendance than those from the states in the neighborhood of congress. that we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the union. the limits, as fixed by the treaty of peace, are: on the east the atlantic, on the south the latitude of thirty-one degrees, on the west the mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. the southern shore of lake erie lies below that latitude. computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three-fourths. the mean distance from the atlantic to the mississippi does not probably exceed seven hundred and fifty miles. on a comparison of this extent with that of several countries in europe, the practicability of rendering our system commensurate to it appears to be demonstrable. it is not a great deal larger than germany, where a diet representing the whole empire is continually assembled; or than poland before the late dismemberment, where another national diet was the depositary of the supreme power. passing by france and spain, we find that in great britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the union. favorable as this view of the subject may be, some observations remain which will place it in a light still more satisfactory. in the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. the subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. were it proposed by the plan of the convention to abolish the governments of the particular states, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction. a second observation to be made is that the immediate object of the federal constitution is to secure the union of the thirteen primitive states, which we know to be practicable; and to add to them such other states as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable. the arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left to those whom further discoveries and experience will render more equal to the task. let it be remarked, in the third place, that the intercourse throughout the union will be facilitated by new improvements. roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the whole extent of the thirteen states. the communication between the western and atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete. a fourth and still more important consideration is, that as almost every state will, on one side or other, be a frontier, and will thus find, in regard to its safety, an inducement to make some sacrifices for the sake of the general protection; so the states which lie at the greatest distance from the heart of the union, and which, of course, may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its strength and resources. it may be inconvenient for georgia, or the states forming our western or northeastern borders, to send their representatives to the seat of government; but they would find it more so to struggle alone against an invading enemy, or even to support alone the whole expense of those precautions which may be dictated by the neighborhood of continual danger. if they should derive less benefit, therefore, from the union in some respects than the less distant states, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout. i submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect; and that you will never suffer difficulties, however formidable in appearance, or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you. hearken not to the unnatural voice which tells you that the people of america, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellow citizens of one great, respectable, and flourishing empire. hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. no, my countrymen, shut your ears against this unhallowed language. shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of american citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their union, and excite horror at the idea of their becoming aliens, rivals, enemies. and if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces, in order to preserve our liberties and promote our happiness. but why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? is it not the glory of the people of america, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? to this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the american theatre, in favor of private rights and public happiness. had no important step been taken by the leaders of the revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the united states might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. happily for america, happily, we trust, for the whole human race, they pursued a new and more noble course. they accomplished a revolution which has no parallel in the annals of human society. they reared the fabrics of governments which have no model on the face of the globe. they formed the design of a great confederacy, which it is incumbent on their successors to improve and perpetuate. if their works betray imperfections, we wonder at the fewness of them. if they erred most in the structure of the union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide. publius federalist no. 15 the insufficiency of the present confederation to preserve the union for the independent journal. saturday, december 1, 1787 hamilton to the people of the state of new york. in the course of the preceding papers, i have endeavored, my fellow citizens, to place before you, in a clear and convincing light, the importance of union to your political safety and happiness. i have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of america together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation. in the sequel of the inquiry through which i propose to accompany you, the truths intended to be inculcated will receive further confirmation from facts and arguments hitherto unnoticed. if the road over which you will still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous which can engage the attention of a free people, that the field through which you have to travel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset the way. it will be my aim to remove the obstacles from your progress in as compendious a manner as it can be done, without sacrificing utility to despatch. in pursuance of the plan which i have laid down for the discussion of the subject, the point next in order to be examined is the "insufficiency of the present confederation to the preservation of the union." it may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new constitution. it must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. the facts that support this opinion are no longer objects of speculation. they have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the union. we may indeed with propriety be said to have reached almost the last stage of national humiliation. there is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience. are there engagements to the performance of which we are held by every tie respectable among men? these are the subjects of constant and unblushing violation. do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence? these remain without any proper or satisfactory provision for their discharge. have we valuable territories and important posts in the possession of a foreign power which, by express stipulations, ought long since to have been surrendered? these are still retained, to the prejudice of our interests, not less than of our rights. are we in a condition to resent or to repel the aggression? we have neither troops, nor treasury, nor government.(1) are we even in a condition to remonstrate with dignity? the just imputations on our own faith, in respect to the same treaty, ought first to be removed. are we entitled by nature and compact to a free participation in the navigation of the mississippi? spain excludes us from it. is public credit an indispensable resource in time of public danger? we seem to have abandoned its cause as desperate and irretrievable. is commerce of importance to national wealth? ours is at the lowest point of declension. is respectability in the eyes of foreign powers a safeguard against foreign encroachments? the imbecility of our government even forbids them to treat with us. our ambassadors abroad are the mere pageants of mimic sovereignty. is a violent and unnatural decrease in the value of land a symptom of national distress? the price of improved land in most parts of the country is much lower than can be accounted for by the quantity of waste land at market, and can only be fully explained by that want of private and public confidence, which are so alarmingly prevalent among all ranks, and which have a direct tendency to depreciate property of every kind. is private credit the friend and patron of industry? that most useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. to shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes? this is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed constitution; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity. it is true, as has been before observed that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. while they admit that the government of the united states is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. they seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of state authority; at sovereignty in the union, and complete independence in the members. they still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. this renders a full display of the principal defects of the confederation necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric. the great and radical vice in the construction of the existing confederation is in the principle of legislation for states or governments, in their corporate or collective capacities, and as contradistinguished from the individuals of which they consist. though this principle does not run through all the powers delegated to the union, yet it pervades and governs those on which the efficacy of the rest depends. except as to the rule of appointment, the united states has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of america. the consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the union, yet in practice they are mere recommendations which the states observe or disregard at their option. it is a singular instance of the capriciousness of the human mind, that after all the admonitions we have had from experience on this head, there should still be found men who object to the new constitution, for deviating from a principle which has been found the bane of the old, and which is in itself evidently incompatible with the idea of government; a principle, in short, which, if it is to be executed at all, must substitute the violent and sanguinary agency of the sword to the mild influence of the magistracy. there is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion; and depending for its execution on the good faith of the parties. compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and non-observance, as the interests or passions of the contracting powers dictate. in the early part of the present century there was an epidemical rage in europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. with a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion. if the particular states in this country are disposed to stand in a similar relation to each other, and to drop the project of a general discretionary superintendence, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at least, consistent and practicable abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us. but if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the union to the persons of the citizens,--the only proper objects of government. government implies the power of making laws. it is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. if there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. this penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the coercion of the magistracy, or by the coercion of arms. the first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or states. it is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. in an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it. there was a time when we were told that breaches, by the states, of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the union. this language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. it at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. why has government been instituted at all? because the passions of men will not conform to the dictates of reason and justice, without constraint. has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? the contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. a spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity. in addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. from this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre. this tendency is not difficult to be accounted for. it has its origin in the love of power. power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. this simple proposition will teach us how little reason there is to expect, that the persons intrusted with the administration of the affairs of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. the reverse of this results from the constitution of human nature. if, therefore, the measures of the confederacy cannot be executed without the intervention of the particular administrations, there will be little prospect of their being executed at all. the rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. they will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption. all this will be done; and in a spirit of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead the decision. the same process must be repeated in every member of which the body is constituted; and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part. those who have been conversant in the proceedings of popular assemblies; who have seen how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a number of such assemblies, deliberating at a distance from each other, at different times, and under different impressions, long to co-operate in the same views and pursuits. in our case, the concurrence of thirteen distinct sovereign wills is requisite, under the confederation, to the complete execution of every important measure that proceeds from the union. it has happened as was to have been foreseen. the measures of the union have not been executed; the delinquencies of the states have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand. congress at this time scarcely possess the means of keeping up the forms of administration, till the states can have time to agree upon a more substantial substitute for the present shadow of a federal government. things did not come to this desperate extremity at once. the causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the union. the greater deficiencies of some states furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent states. why should we do more in proportion than those who are embarked with us in the same political voyage? why should we consent to bear more than our proper share of the common burden? these were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not, without hesitation, combat. each state, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins. publius 1. "i mean for the union." federalist no. 16 the same subject continued (the insufficiency of the present confederation to preserve the union) from the new york packet. tuesday, december 4, 1787. hamilton to the people of the state of new york: the tendency of the principle of legislation for states, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. the confirmations of this fact will be worthy of a distinct and particular examination. i shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the lycian and achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers. this exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: it has been seen that delinquencies in the members of the union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war. it remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. if there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. it would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. independent of this motive of sympathy, if a large and influential state should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those states which were not chargeable with any violation or omission of duty. this would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent states. if associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a confederacy, from the firm union of which they had so much to fear. when the sword is once drawn, the passions of men observe no bounds of moderation. the suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the states against which the arms of the union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. the first war of this kind would probably terminate in a dissolution of the union. this may be considered as the violent death of the confederacy. its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. it is not probable, considering the genius of this country, that the complying states would often be inclined to support the authority of the union by engaging in a war against the non-complying states. they would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. and the guilt of all would thus become the security of all. our past experience has exhibited the operation of this spirit in its full light. there would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. in the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. the pretense of the latter would always be at hand. and the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. it is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of partiality, and of oppression, in the majority that happened to prevail in the national council. it seems to require no pains to prove that the states ought not to prefer a national constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. and yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. the resources of the union would not be equal to the maintenance of an army considerable enough to confine the larger states within the limits of their duty; nor would the means ever be furnished of forming such an army in the first instance. whoever considers the populousness and strength of several of these states singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. a project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity. even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign states, supported by military coercion, has never been found effectual. it has rarely been attempted to be employed, but against the weaker members; and in most instances attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half. the result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed constitution. it must carry its agency to the persons of the citizens. it must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. the majesty of the national authority must be manifested through the medium of the courts of justice. the government of the union, like that of each state, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. it must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular states. to this reasoning it may perhaps be objected, that if any state should be disaffected to the authority of the union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached. the plausibility of this objection will vanish the moment we advert to the essential difference between a mere non-compliance and a direct and active resistance. if the interposition of the state legislatures be necessary to give effect to a measure of the union, they have only not to act, or to act evasively, and the measure is defeated. this neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the constitution. the state leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage. but if the execution of the laws of the national government should not require the intervention of the state legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. no omissions nor evasions would answer the end. they would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. an experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. the success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. if the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. if the people were not tainted with the spirit of their state representatives, they, as the natural guardians of the constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority. if opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the state governments. the magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. as to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional illhumors that do not infect the great body of the community the general government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single member. and as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. when they happen, they commonly amount to revolutions and dismemberments of empire. no form of government can always either avoid or control them. it is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities. publius federalist no. 17 the same subject continued (the insufficiency of the present confederation to preserve the union) for the independent journal. wednesday, december 5, 1787 hamilton to the people of the state of new york: an objection, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of america. it may be said that it would tend to render the government of the union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the states for local purposes. allowing the utmost latitude to the love of power which any reasonable man can require, i confess i am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the states of the authorities of that description. the regulation of the mere domestic police of a state appears to me to hold out slender allurements to ambition. commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. the administration of private justice between the citizens of the same state, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. it is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government. but let it be admitted, for argument's sake, that mere wantonness and lust of domination would be sufficient to beget that disposition; still it may be safely affirmed, that the sense of the constituent body of the national representatives, or, in other words, the people of the several states, would control the indulgence of so extravagant an appetite. it will always be far more easy for the state governments to encroach upon the national authorities than for the national government to encroach upon the state authorities. the proof of this proposition turns upon the greater degree of influence which the state governments if they administer their affairs with uprightness and prudence, will generally possess over the people; a circumstance which at the same time teaches us that there is an inherent and intrinsic weakness in all federal constitutions; and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty. the superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the state administrations would be directed. it is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each state would be apt to feel a stronger bias towards their local governments than towards the government of the union; unless the force of that principle should be destroyed by a much better administration of the latter. this strong propensity of the human heart would find powerful auxiliaries in the objects of state regulation. the variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford. there is one transcendant advantage belonging to the province of the state governments, which alone suffices to place the matter in a clear and satisfactory light,--i mean the ordinary administration of criminal and civil justice. this, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. it is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government. this great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the union. the operations of the national government, on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment. the reasoning on this head has been abundantly exemplified by the experience of all federal constitutions with which we are acquainted, and of all others which have borne the least analogy to them. though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association. there was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of inferior vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience, to the persons of whom they held it. each principal vassal was a kind of sovereign, within his particular demesnes. the consequences of this situation were a continual opposition to authority of the sovereign, and frequent wars between the great barons or chief feudatories themselves. the power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords. this period of european affairs is emphatically styled by historians, the times of feudal anarchy. when the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority. but in general, the power of the barons triumphed over that of the prince; and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or states. in those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. the barons, or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy. had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority. this is not an assertion founded merely in speculation or conjecture. among other illustrations of its truth which might be cited, scotland will furnish a cogent example. the spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of kindred, rendered the aristocracy a constant overmatch for the power of the monarch, till the incorporation with england subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom. the separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government. it will be well if they are not able to counteract its legitimate and necessary authority. the points of similitude consist in the rivalship of power, applicable to both, and in the concentration of large portions of the strength of the community into particular depositories, in one case at the disposal of individuals, in the other case at the disposal of political bodies. a concise review of the events that have attended confederate governments will further illustrate this important doctrine; an inattention to which has been the great source of our political mistakes, and has given our jealousy a direction to the wrong side. this review shall form the subject of some ensuing papers. publius federalist no. 18 the same subject continued (the insufficiency of the present confederation to preserve the union) for the new york packet. friday, december 7, 1787 madison, with hamilton to the people of the state of new york: among the confederacies of antiquity, the most considerable was that of the grecian republics, associated under the amphictyonic council. from the best accounts transmitted of this celebrated institution, it bore a very instructive analogy to the present confederation of the american states. the members retained the character of independent and sovereign states, and had equal votes in the federal council. this council had a general authority to propose and resolve whatever it judged necessary for the common welfare of greece; to declare and carry on war; to decide, in the last resort, all controversies between the members; to fine the aggressing party; to employ the whole force of the confederacy against the disobedient; to admit new members. the amphictyons were the guardians of religion, and of the immense riches belonging to the temple of delphos, where they had the right of jurisdiction in controversies between the inhabitants and those who came to consult the oracle. as a further provision for the efficacy of the federal powers, they took an oath mutually to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple. in theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes. in several material instances, they exceed the powers enumerated in the articles of confederation. the amphictyons had in their hands the superstition of the times, one of the principal engines by which government was then maintained; they had a declared authority to use coercion against refractory cities, and were bound by oath to exert this authority on the necessary occasions. very different, nevertheless, was the experiment from the theory. the powers, like those of the present congress, were administered by deputies appointed wholly by the cities in their political capacities; and exercised over them in the same capacities. hence the weakness, the disorders, and finally the destruction of the confederacy. the more powerful members, instead of being kept in awe and subordination, tyrannized successively over all the rest. athens, as we learn from demosthenes, was the arbiter of greece seventy-three years. the lacedaemonians next governed it twenty-nine years; at a subsequent period, after the battle of leuctra, the thebans had their turn of domination. it happened but too often, according to plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker; and that judgment went in favor of the most powerful party. even in the midst of defensive and dangerous wars with persia and macedon, the members never acted in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. the intervals of foreign war were filled up by domestic vicissitudes convulsions, and carnage. after the conclusion of the war with xerxes, it appears that the lacedaemonians required that a number of the cities should be turned out of the confederacy for the unfaithful part they had acted. the athenians, finding that the lacedaemonians would lose fewer partisans by such a measure than themselves, and would become masters of the public deliberations, vigorously opposed and defeated the attempt. this piece of history proves at once the inefficiency of the union, the ambition and jealousy of its most powerful members, and the dependent and degraded condition of the rest. the smaller members, though entitled by the theory of their system to revolve in equal pride and majesty around the common center, had become, in fact, satellites of the orbs of primary magnitude. had the greeks, says the abbe milot, been as wise as they were courageous, they would have been admonished by experience of the necessity of a closer union, and would have availed themselves of the peace which followed their success against the persian arms, to establish such a reformation. instead of this obvious policy, athens and sparta, inflated with the victories and the glory they had acquired, became first rivals and then enemies; and did each other infinitely more mischief than they had suffered from xerxes. their mutual jealousies, fears, hatreds, and injuries ended in the celebrated peloponnesian war; which itself ended in the ruin and slavery of the athenians who had begun it. as a weak government, when not at war, is ever agitated by internal dissentions, so these never fail to bring on fresh calamities from abroad. the phocians having ploughed up some consecrated ground belonging to the temple of apollo, the amphictyonic council, according to the superstition of the age, imposed a fine on the sacrilegious offenders. the phocians, being abetted by athens and sparta, refused to submit to the decree. the thebans, with others of the cities, undertook to maintain the authority of the amphictyons, and to avenge the violated god. the latter, being the weaker party, invited the assistance of philip of macedon, who had secretly fostered the contest. philip gladly seized the opportunity of executing the designs he had long planned against the liberties of greece. by his intrigues and bribes he won over to his interests the popular leaders of several cities; by their influence and votes, gained admission into the amphictyonic council; and by his arts and his arms, made himself master of the confederacy. such were the consequences of the fallacious principle on which this interesting establishment was founded. had greece, says a judicious observer on her fate, been united by a stricter confederation, and persevered in her union, she would never have worn the chains of macedon; and might have proved a barrier to the vast projects of rome. the achaean league, as it is called, was another society of grecian republics, which supplies us with valuable instruction. the union here was far more intimate, and its organization much wiser, than in the preceding instance. it will accordingly appear, that though not exempt from a similar catastrophe, it by no means equally deserved it. the cities composing this league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality. the senate, in which they were represented, had the sole and exclusive right of peace and war; of sending and receiving ambassadors; of entering into treaties and alliances; of appointing a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and consent of ten of the senators, not only administered the government in the recess of the senate, but had a great share in its deliberations, when assembled. according to the primitive constitution, there were two praetors associated in the administration; but on trial a single one was preferred. it appears that the cities had all the same laws and customs, the same weights and measures, and the same money. but how far this effect proceeded from the authority of the federal council is left in uncertainty. it is said only that the cities were in a manner compelled to receive the same laws and usages. when lacedaemon was brought into the league by philopoemen, it was attended with an abolition of the institutions and laws of lycurgus, and an adoption of those of the achaeans. the amphictyonic confederacy, of which she had been a member, left her in the full exercise of her government and her legislation. this circumstance alone proves a very material difference in the genius of the two systems. it is much to be regretted that such imperfect monuments remain of this curious political fabric. could its interior structure and regular operation be ascertained, it is probable that more light would be thrown by it on the science of federal government, than by any of the like experiments with which we are acquainted. one important fact seems to be witnessed by all the historians who take notice of achaean affairs. it is, that as well after the renovation of the league by aratus, as before its dissolution by the arts of macedon, there was infinitely more of moderation and justice in the administration of its government, and less of violence and sedition in the people, than were to be found in any of the cities exercising singly all the prerogatives of sovereignty. the abbe mably, in his observations on greece, says that the popular government, which was so tempestuous elsewhere, caused no disorders in the members of the achaean republic, because it was there tempered by the general authority and laws of the confederacy. we are not to conclude too hastily, however, that faction did not, in a certain degree, agitate the particular cities; much less that a due subordination and harmony reigned in the general system. the contrary is sufficiently displayed in the vicissitudes and fate of the republic. whilst the amphictyonic confederacy remained, that of the achaeans, which comprehended the less important cities only, made little figure on the theatre of greece. when the former became a victim to macedon, the latter was spared by the policy of philip and alexander. under the successors of these princes, however, a different policy prevailed. the arts of division were practiced among the achaeans. each city was seduced into a separate interest; the union was dissolved. some of the cities fell under the tyranny of macedonian garrisons; others under that of usurpers springing out of their own confusions. shame and oppression erelong awaken their love of liberty. a few cities reunited. their example was followed by others, as opportunities were found of cutting off their tyrants. the league soon embraced almost the whole peloponnesus. macedon saw its progress; but was hindered by internal dissensions from stopping it. all greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy in sparta and athens, of the rising glory of the achaeans, threw a fatal damp on the enterprise. the dread of the macedonian power induced the league to court the alliance of the kings of egypt and syria, who, as successors of alexander, were rivals of the king of macedon. this policy was defeated by cleomenes, king of sparta, who was led by his ambition to make an unprovoked attack on his neighbors, the achaeans, and who, as an enemy to macedon, had interest enough with the egyptian and syrian princes to effect a breach of their engagements with the league. the achaeans were now reduced to the dilemma of submitting to cleomenes, or of supplicating the aid of macedon, its former oppressor. the latter expedient was adopted. the contests of the greeks always afforded a pleasing opportunity to that powerful neighbor of intermeddling in their affairs. a macedonian army quickly appeared. cleomenes was vanquished. the achaeans soon experienced, as often happens, that a victorious and powerful ally is but another name for a master. all that their most abject compliances could obtain from him was a toleration of the exercise of their laws. philip, who was now on the throne of macedon, soon provoked by his tyrannies, fresh combinations among the greeks. the achaeans, though weakened by internal dissensions and by the revolt of messene, one of its members, being joined by the aetolians and athenians, erected the standard of opposition. finding themselves, though thus supported, unequal to the undertaking, they once more had recourse to the dangerous expedient of introducing the succor of foreign arms. the romans, to whom the invitation was made, eagerly embraced it. philip was conquered; macedon subdued. a new crisis ensued to the league. dissensions broke out among it members. these the romans fostered. callicrates and other popular leaders became mercenary instruments for inveigling their countrymen. the more effectually to nourish discord and disorder the romans had, to the astonishment of those who confided in their sincerity, already proclaimed universal liberty(1) throughout greece. with the same insidious views, they now seduced the members from the league, by representing to their pride the violation it committed on their sovereignty. by these arts this union, the last hope of greece, the last hope of ancient liberty, was torn into pieces; and such imbecility and distraction introduced, that the arms of rome found little difficulty in completing the ruin which their arts had commenced. the achaeans were cut to pieces, and achaia loaded with chains, under which it is groaning at this hour. i have thought it not superfluous to give the outlines of this important portion of history; both because it teaches more than one lesson, and because, as a supplement to the outlines of the achaean constitution, it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to tyranny in the head. publius 1. this was but another name more specious for the independence of the members on the federal head. federalist no. 19 the same subject continued (the insufficiency of the present confederation to preserve the union) for the independent journal. saturday, december 8, 1787 madison, with hamilton to the people of the state of new york: the examples of ancient confederacies, cited in my last paper, have not exhausted the source of experimental instruction on this subject. there are existing institutions, founded on a similar principle, which merit particular consideration. the first which presents itself is the germanic body. in the early ages of christianity, germany was occupied by seven distinct nations, who had no common chief. the franks, one of the number, having conquered the gauls, established the kingdom which has taken its name from them. in the ninth century charlemagne, its warlike monarch, carried his victorious arms in every direction; and germany became a part of his vast dominions. on the dismemberment, which took place under his sons, this part was erected into a separate and independent empire. charlemagne and his immediate descendants possessed the reality, as well as the ensigns and dignity of imperial power. but the principal vassals, whose fiefs had become hereditary, and who composed the national diets which charlemagne had not abolished, gradually threw off the yoke and advanced to sovereign jurisdiction and independence. the force of imperial sovereignty was insufficient to restrain such powerful dependants; or to preserve the unity and tranquillity of the empire. the most furious private wars, accompanied with every species of calamity, were carried on between the different princes and states. the imperial authority, unable to maintain the public order, declined by degrees till it was almost extinct in the anarchy, which agitated the long interval between the death of the last emperor of the suabian, and the accession of the first emperor of the austrian lines. in the eleventh century the emperors enjoyed full sovereignty: in the fifteenth they had little more than the symbols and decorations of power. out of this feudal system, which has itself many of the important features of a confederacy, has grown the federal system which constitutes the germanic empire. its powers are vested in a diet representing the component members of the confederacy; in the emperor, who is the executive magistrate, with a negative on the decrees of the diet; and in the imperial chamber and the aulic council, two judiciary tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members. the diet possesses the general power of legislating for the empire; of making war and peace; contracting alliances; assessing quotas of troops and money; constructing fortresses; regulating coin; admitting new members; and subjecting disobedient members to the ban of the empire, by which the party is degraded from his sovereign rights and his possessions forfeited. the members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. and the ban is denounced against such as shall violate any of these restrictions. the members of the diet, as such, are subject in all cases to be judged by the emperor and diet, and in their private capacities by the aulic council and imperial chamber. the prerogatives of the emperor are numerous. the most important of them are: his exclusive right to make propositions to the diet; to negative its resolutions; to name ambassadors; to confer dignities and titles; to fill vacant electorates; to found universities; to grant privileges not injurious to the states of the empire; to receive and apply the public revenues; and generally to watch over the public safety. in certain cases, the electors form a council to him. in quality of emperor, he possesses no territory within the empire, nor receives any revenue for his support. but his revenue and dominions, in other qualities, constitute him one of the most powerful princes in europe. from such a parade of constitutional powers, in the representatives and head of this confederacy, the natural supposition would be, that it must form an exception to the general character which belongs to its kindred systems. nothing would be further from the reality. the fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels. the history of germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the licentiousness of the strong, and the oppression of the weak; of foreign intrusions, and foreign intrigues; of requisitions of men and money disregarded, or partially complied with; of attempts to enforce them, altogether abortive, or attended with slaughter and desolation, involving the innocent with the guilty; of general imbecility, confusion, and misery. in the sixteenth century, the emperor, with one part of the empire on his side, was seen engaged against the other princes and states. in one of the conflicts, the emperor himself was put to flight, and very near being made prisoner by the elector of saxony. the late king of prussia was more than once pitted against his imperial sovereign; and commonly proved an overmatch for him. controversies and wars among the members themselves have been so common, that the german annals are crowded with the bloody pages which describe them. previous to the peace of westphalia, germany was desolated by a war of thirty years, in which the emperor, with one half of the empire, was on one side, and sweden, with the other half, on the opposite side. peace was at length negotiated, and dictated by foreign powers; and the articles of it, to which foreign powers are parties, made a fundamental part of the germanic constitution. if the nation happens, on any emergency, to be more united by the necessity of self-defense, its situation is still deplorable. military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies, that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters. the small body of national troops, which has been judged necessary in time of peace, is defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury. the impossibility of maintaining order and dispensing justice among these sovereign subjects, produced the experiment of dividing the empire into nine or ten circles or districts; of giving them an interior organization, and of charging them with the military execution of the laws against delinquent and contumacious members. this experiment has only served to demonstrate more fully the radical vice of the constitution. each circle is the miniature picture of the deformities of this political monster. they either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. sometimes whole circles are defaulters; and then they increase the mischief which they were instituted to remedy. we may form some judgment of this scheme of military coercion from a sample given by thuanus. in donawerth, a free and imperial city of the circle of suabia, the abbe de st. croix enjoyed certain immunities which had been reserved to him. in the exercise of these, on some public occasions, outrages were committed on him by the people of the city. the consequence was that the city was put under the ban of the empire, and the duke of bavaria, though director of another circle, obtained an appointment to enforce it. he soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion, as he had secretly intended from the beginning, to revive an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory,(1) he took possession of it in his own name, disarmed, and punished the inhabitants, and reannexed the city to his domains. it may be asked, perhaps, what has so long kept this disjointed machine from falling entirely to pieces? the answer is obvious: the weakness of most of the members, who are unwilling to expose themselves to the mercy of foreign powers; the weakness of most of the principal members, compared with the formidable powers all around them; the vast weight and influence which the emperor derives from his separate and hereditary dominions; and the interest he feels in preserving a system with which his family pride is connected, and which constitutes him the first prince in europe;--these causes support a feeble and precarious union; whilst the repellant quality, incident to the nature of sovereignty, and which time continually strengthens, prevents any reform whatever, founded on a proper consolidation. nor is it to be imagined, if this obstacle could be surmounted, that the neighboring powers would suffer a revolution to take place which would give to the empire the force and preeminence to which it is entitled. foreign nations have long considered themselves as interested in the changes made by events in this constitution; and have, on various occasions, betrayed their policy of perpetuating its anarchy and weakness. if more direct examples were wanting, poland, as a government over local sovereigns, might not improperly be taken notice of. nor could any proof more striking be given of the calamities flowing from such institutions. equally unfit for self-government and self-defense, it has long been at the mercy of its powerful neighbors; who have lately had the mercy to disburden it of one third of its people and territories. the connection among the swiss cantons scarcely amounts to a confederacy; though it is sometimes cited as an instance of the stability of such institutions. they have no common treasury; no common troops even in war; no common coin; no common judicatory; nor any other common mark of sovereignty. they are kept together by the peculiarity of their topographical position; by their individual weakness and insignificancy; by the fear of powerful neighbors, to one of which they were formerly subject; by the few sources of contention among a people of such simple and homogeneous manners; by their joint interest in their dependent possessions; by the mutual aid they stand in need of, for suppressing insurrections and rebellions, an aid expressly stipulated and often required and afforded; and by the necessity of some regular and permanent provision for accommodating disputes among the cantons. the provision is, that the parties at variance shall each choose four judges out of the neutral cantons, who, in case of disagreement, choose an umpire. this tribunal, under an oath of impartiality, pronounces definitive sentence, which all the cantons are bound to enforce. the competency of this regulation may be estimated by a clause in their treaty of 1683, with victor amadeus of savoy; in which he obliges himself to interpose as mediator in disputes between the cantons, and to employ force, if necessary, against the contumacious party. so far as the peculiarity of their case will admit of comparison with that of the united states, it serves to confirm the principle intended to be established. whatever efficacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed. the controversies on the subject of religion, which in three instances have kindled violent and bloody contests, may be said, in fact, to have severed the league. the protestant and catholic cantons have since had their separate diets, where all the most important concerns are adjusted, and which have left the general diet little other business than to take care of the common bailages. that separation had another consequence, which merits attention. it produced opposite alliances with foreign powers: of berne, at the head of the protestant association, with the united provinces; and of luzerne, at the head of the catholic association, with france. publius 1. pfeffel, "nouvel abrã©g. chronol. de l'hist., etc., d'allemagne," says the pretext was to indemnify himself for the expense of the expedition. federalist no. 20 the same subject continued (the insufficiency of the present confederation to preserve the union) from the new york packet. tuesday, december 11, 1787. madison, with hamilton to the people of the state of new york: the united netherlands are a confederacy of republics, or rather of aristocracies of a very remarkable texture, yet confirming all the lessons derived from those which we have already reviewed. the union is composed of seven coequal and sovereign states, and each state or province is a composition of equal and independent cities. in all important cases, not only the provinces but the cities must be unanimous. the sovereignty of the union is represented by the states-general, consisting usually of about fifty deputies appointed by the provinces. they hold their seats, some for life, some for six, three, and one years; from two provinces they continue in appointment during pleasure. the states-general have authority to enter into treaties and alliances; to make war and peace; to raise armies and equip fleets; to ascertain quotas and demand contributions. in all these cases, however, unanimity and the sanction of their constituents are requisite. they have authority to appoint and receive ambassadors; to execute treaties and alliances already formed; to provide for the collection of duties on imports and exports; to regulate the mint, with a saving to the provincial rights; to govern as sovereigns the dependent territories. the provinces are restrained, unless with the general consent, from entering into foreign treaties; from establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects. a council of state, a chamber of accounts, with five colleges of admiralty, aid and fortify the federal administration. the executive magistrate of the union is the stadtholder, who is now an hereditary prince. his principal weight and influence in the republic are derived from this independent title; from his great patrimonial estates; from his family connections with some of the chief potentates of europe; and, more than all, perhaps, from his being stadtholder in the several provinces, as well as for the union; in which provincial quality he has the appointment of town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and has throughout the power of pardon. as stadtholder of the union, he has, however, considerable prerogatives. in his political capacity he has authority to settle disputes between the provinces, when other methods fail; to assist at the deliberations of the states-general, and at their particular conferences; to give audiences to foreign ambassadors, and to keep agents for his particular affairs at foreign courts. in his military capacity he commands the federal troops, provides for garrisons, and in general regulates military affairs; disposes of all appointments, from colonels to ensigns, and of the governments and posts of fortified towns. in his marine capacity he is admiral-general, and superintends and directs every thing relative to naval forces and other naval affairs; presides in the admiralties in person or by proxy; appoints lieutenant-admirals and other officers; and establishes councils of war, whose sentences are not executed till he approves them. his revenue, exclusive of his private income, amounts to three hundred thousand florins. the standing army which he commands consists of about forty thousand men. such is the nature of the celebrated belgic confederacy, as delineated on parchment. what are the characters which practice has stamped upon it? imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war. it was long ago remarked by grotius, that nothing but the hatred of his countrymen to the house of austria kept them from being ruined by the vices of their constitution. the union of utrecht, says another respectable writer, reposes an authority in the states-general, seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory. the same instrument, says another, obliges each province to levy certain contributions; but this article never could, and probably never will, be executed; because the inland provinces, who have little commerce, cannot pay an equal quota. in matters of contribution, it is the practice to waive the articles of the constitution. the danger of delay obliges the consenting provinces to furnish their quotas, without waiting for the others; and then to obtain reimbursement from the others, by deputations, which are frequent, or otherwise, as they can. the great wealth and influence of the province of holland enable her to effect both these purposes. it has more than once happened, that the deficiencies had to be ultimately collected at the point of the bayonet; a thing practicable, though dreadful, in a confederacy where one of the members exceeds in force all the rest, and where several of them are too small to meditate resistance; but utterly impracticable in one composed of members, several of which are equal to each other in strength and resources, and equal singly to a vigorous and persevering defense. foreign ministers, says sir william temple, who was himself a foreign minister, elude matters taken ad referendum, by tampering with the provinces and cities. in 1726, the treaty of hanover was delayed by these means a whole year. instances of a like nature are numerous and notorious. in critical emergencies, the states-general are often compelled to overleap their constitutional bounds. in 1688, they concluded a treaty of themselves at the risk of their heads. the treaty of westphalia, in 1648, by which their independence was formerly and finally recognized, was concluded without the consent of zealand. even as recently as the last treaty of peace with great britain, the constitutional principle of unanimity was departed from. a weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities. notwithstanding the calamities produced by the stadtholdership, it has been supposed that without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. "under such a government," says the abbe mably, "the union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. this spring is the stadtholder." it is remarked by sir william temple, "that in the intermissions of the stadtholdership, holland, by her riches and her authority, which drew the others into a sort of dependence, supplied the place." these are not the only circumstances which have controlled the tendency to anarchy and dissolution. the surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always at their mercy. the true patriots have long bewailed the fatal tendency of these vices, and have made no less than four regular experiments by extraordinary assemblies, convened for the special purpose, to apply a remedy. as many times has their laudable zeal found it impossible to unite the public councils in reforming the known, the acknowledged, the fatal evils of the existing constitution. let us pause, my fellow-citizens, for one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to heaven, for the propitious concord which has distinguished the consultations for our political happiness. a design was also conceived of establishing a general tax to be administered by the federal authority. this also had its adversaries and failed. this unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their destiny. all nations have their eyes fixed on the awful spectacle. the first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: the next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own. i make no apology for having dwelt so long on the contemplation of these federal precedents. experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. the important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting violence in place of law, or the destructive coercion of the sword in place of the mild and salutary coercion of the magistracy. publius federalist no. 21 other defects of the present confederation for the independent journal. wednesday, december 12, 1787 hamilton to the people of the state of new york: having in the three last numbers taken a summary review of the principal circumstances and events which have depicted the genius and fate of other confederate governments, i shall now proceed in the enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves. to form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease. the next most palpable defect of the subsisting confederation, is the total want of a sanction to its laws. the united states, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode. there is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the states, it must be by inference and construction, in the face of that part of the second article, by which it is declared, "that each state shall retain every power, jurisdiction, and right, not expressly delegated to the united states in congress assembled." there is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. if we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the united states afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. it will appear, from the specimens which have been cited, that the american confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world. the want of a mutual guaranty of the state governments is another capital imperfection in the federal plan. there is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations. the want of a guaranty, though it might in its consequences endanger the union, does not so immediately attack its existence as the want of a constitutional sanction to its laws. without a guaranty the assistance to be derived from the union in repelling those domestic dangers which may sometimes threaten the existence of the state constitutions, must be renounced. usurpation may rear its crest in each state, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. a successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the union to the friends and supporters of the government. the tempestuous situation from which massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a caesar or by a cromwell? who can predict what effect a despotism, established in massachusetts, would have upon the liberties of new hampshire or rhode island, of connecticut or new york? the inordinate pride of state importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an officious interference in the domestic concerns of the members. a scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. it could be no impediment to reforms of the state constitution by a majority of the people in a legal and peaceable mode. this right would remain undiminished. the guaranty could only operate against changes to be effected by violence. towards the preventions of calamities of this kind, too many checks cannot be provided. the peace of society and the stability of government depend absolutely on the efficacy of the precautions adopted on this head. where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the state. the natural cure for an ill-administration, in a popular or representative constitution, is a change of men. a guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and outrages of faction and sedition in the community. the principle of regulating the contributions of the states to the common treasury by quotas is another fundamental error in the confederation. its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. i speak of it now solely with a view to equality among the states. those who have been accustomed to contemplate the circumstances which produce and constitute national wealth, must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained. neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of state contributions, has any pretension to being a just representative. if we compare the wealth of the united netherlands with that of russia or germany, or even of france, and if we at the same time compare the total value of the lands and the aggregate population of that contracted district with the total value of the lands and the aggregate population of the immense regions of either of the three last-mentioned countries, we shall at once discover that there is no comparison between the proportion of either of these two objects and that of the relative wealth of those nations. if the like parallel were to be run between several of the american states, it would furnish a like result. let virginia be contrasted with north carolina, pennsylvania with connecticut, or maryland with new jersey, and we shall be convinced that the respective abilities of those states, in relation to revenue, bear little or no analogy to their comparative stock in lands or to their comparative population. the position may be equally illustrated by a similar process between the counties of the same state. no man who is acquainted with the state of new york will doubt that the active wealth of king's county bears a much greater proportion to that of montgomery than it would appear to be if we should take either the total value of the lands or the total number of the people as a criterion! the wealth of nations depends upon an infinite variety of causes. situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry, these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the relative opulence and riches of different countries. the consequence clearly is that there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. the attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression. this inequality would of itself be sufficient in america to work the eventual destruction of the union, if any mode of enforcing a compliance with its requisitions could be devised. the suffering states would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some states, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. this, however, is an evil inseparable from the principle of quotas and requisitions. there is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them. the amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. the rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions. if inequalities should arise in some states from duties on particular objects, these will, in all probability, be counterbalanced by proportional inequalities in other states, from the duties on other objects. in the course of time and things, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. or, if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised. it is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. they prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. when applied to this object, the saying is as just as it is witty, that, "in political arithmetic, two and two do not always make four." if duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. this forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them. impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. either the value of land, or the number of the people, may serve as a standard. the state of agriculture and the populousness of a country have been considered as nearly connected with each other. and, as a rule, for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. in every country it is a herculean task to obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. the expense of an accurate valuation is, in all situations, a formidable objection. in a branch of taxation where no limits to the discretion of the government are to be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be attended with fewer inconveniences than to leave that discretion altogether at large. publius federalist no. 22 the same subject continued (other defects of the present confederation) from the new york packet. friday, december 14, 1787. hamilton to the people of the state of new york: in addition to the defects already enumerated in the existing federal system, there are others of not less importance, which concur in rendering it altogether unfit for the administration of the affairs of the union. the want of a power to regulate commerce is by all parties allowed to be of the number. the utility of such a power has been anticipated under the first head of our inquiries; and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place. it is indeed evident, on the most superficial view, that there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. the want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the states. no nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the united states, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest. it is not, therefore, to be wondered at that mr. jenkinson, in ushering into the house of commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of great britain, and that it would be prudent to persist in the plan until it should appear whether the american government was likely or not to acquire greater consistency.(1) several states have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the state, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist. the interfering and unneighborly regulations of some states, contrary to the true spirit of the union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the confederacy. "the commerce of the german empire(2) is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which germany is so happily watered are rendered almost useless." though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of state regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens. the power of raising armies, by the most obvious construction of the articles of the confederation, is merely a power of making requisitions upon the states for quotas of men. this practice in the course of the late war, was found replete with obstructions to a vigorous and to an economical system of defense. it gave birth to a competition between the states which created a kind of auction for men. in order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size. the hope of a still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment, and disinclined them from engaging for any considerable periods. hence, slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army. hence, also, those oppressive expedients for raising men which were upon several occasions practiced, and which nothing but the enthusiasm of liberty would have induced the people to endure. this method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden. the states near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions. the immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation. the states which did not pay their proportions of money might at least be charged with their deficiencies; but no account could be formed of the deficiencies in the supplies of men. we shall not, however, see much reason to regret the want of this hope, when we consider how little prospect there is, that the most delinquent states will ever be able to make compensation for their pecuniary failures. the system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of imbecility in the union, and of inequality and injustice among the members. the right of equal suffrage among the states is another exceptionable part of the confederation. every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to rhode island an equal weight in the scale of power with massachusetts, or connecticut, or new york; and to delaware an equal voice in the national deliberations with pennsylvania, or virginia, or north carolina. its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. sophistry may reply, that sovereigns are equal, and that a majority of the votes of the states will be a majority of confederated america. but this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. it may happen that this majority of states is a small minority of the people of america;(3) and two thirds of the people of america could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. the larger states would after a while revolt from the idea of receiving the law from the smaller. to acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. it is neither rational to expect the first, nor just to require the last. the smaller states, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration. it may be objected to this, that not seven but nine states, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine states would always comprehend a majority of the union. but this does not obviate the impropriety of an equal vote between states of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine states which contain less than a majority of the people;(4) and it is constitutionally possible that these nine may give the vote. besides, there are matters of considerable moment determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven states, would extend its operation to interests of the first magnitude. in addition to this, it is to be observed that there is a probability of an increase in the number of states, and no provision for a proportional augmentation of the ratio of votes. but this is not all: what at first sight may seem a remedy, is, in reality, a poison. to give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. congress, from the nonattendance of a few states, have been frequently in the situation of a polish diet, where a single vote has been sufficient to put a stop to all their movements. a sixtieth part of the union, which is about the proportion of delaware and rhode island, has several times been able to oppose an entire bar to its operations. this is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. the necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. but its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. in those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. the public business must, in some way or other, go forward. if a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. and yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. it is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. its situation must always savor of weakness, sometimes border upon anarchy. it is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. the mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. when the concurrence of a large number is required by the constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods. suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the war, with views that might justify us in making separate terms. in such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice. in the first case, he would have to corrupt a smaller number; in the last, a greater number. upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our exertions. and, in a commercial view, we may be subjected to similar inconveniences. a nation, with which we might have a treaty of commerce, could with much greater facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves. evils of this description ought not to be regarded as imaginary. one of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. an hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. the world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind. in republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments. how much this contributed to the ruin of the ancient commonwealths has been already delineated. it is well known that the deputies of the united provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. the earl of chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major's commission for one of those deputies. and in sweden the parties were alternately bought by france and england in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled. a circumstance which crowns the defects of the confederation remains yet to be mentioned, the want of a judiciary power. laws are a dead letter without courts to expound and define their true meaning and operation. the treaties of the united states, to have any force at all, must be considered as part of the law of the land. their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. to produce uniformity in these determinations, they ought to be submitted, in the last resort, to one supreme tribunal. and this tribunal ought to be instituted under the same authority which forms the treaties themselves. these ingredients are both indispensable. if there is in each state a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. there are endless diversities in the opinions of men. we often see not only different courts but the judges of the came court differing from each other. to avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. this is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. in this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. as often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. the treaties of the united states, under the present constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. the faith, the reputation, the peace of the whole union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. is it possible that foreign nations can either respect or confide in such a government? is it possible that the people of america will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation? in this review of the confederation, i have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. it must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters. the organization of congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the union. a single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed constitution admit, ought to reside in the united states. if that plan should not be adopted, and if the necessity of the union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force an energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. thus, we should create in reality that very tyranny which the adversaries of the new constitution either are, or affect to be, solicitous to avert. it has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the people. resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. owing its ratification to the law of a state, it has been contended that the same authority might repeal the law by which it was ratified. however gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. the possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. the fabric of american empire ought to rest on the solid basis of the consent of the people. the streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority. publius 1. this, as nearly as i can recollect, was the sense of his speech on introducing the last bill. 2. encyclopedia, article "empire." 3. new hampshire, rhode island, new jersey, delaware, georgia, south carolina, and maryland are a majority of the whole number of the states, but they do not contain one third of the people. 4. add new york and connecticut to the foregoing seven, and they will be less than a majority. federalist no. 23 the necessity of a government as energetic as the one proposed to the preservation of the union from the new york packet. tuesday, december 18, 1787. hamilton to the people of the state of new york: the necessity of a constitution, at least equally energetic with the one proposed, to the preservation of the union, is the point at the examination of which we are now arrived. this inquiry will naturally divide itself into three branches--the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. its distribution and organization will more properly claim our attention under the succeeding head. the principal purposes to be answered by union are these--the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the states; the superintendence of our intercourse, political and commercial, with foreign countries. the authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. these powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. the circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. this power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. this is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. it rests upon axioms as simple as they are universal; the means ought to be proportioned to the end; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained. whether there ought to be a federal government intrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. and unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the formation, direction, or support of the national forces. defective as the present confederation has been proved to be, this principle appears to have been fully recognized by the framers of it; though they have not made proper or adequate provision for its exercise. congress have an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their operations. as their requisitions are made constitutionally binding upon the states, who are in fact under the most solemn obligations to furnish the supplies required of them, the intention evidently was that the united states should command whatever resources were by them judged requisite to the "common defense and general welfare." it was presumed that a sense of their true interests, and a regard to the dictates of good faith, would be found sufficient pledges for the punctual performance of the duty of the members to the federal head. the experiment has, however, demonstrated that this expectation was ill-founded and illusory; and the observations, made under the last head, will, i imagine, have sufficed to convince the impartial and discerning, that there is an absolute necessity for an entire change in the first principles of the system; that if we are in earnest about giving the union energy and duration, we must abandon the vain project of legislating upon the states in their collective capacities; we must extend the laws of the federal government to the individual citizens of america; we must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust. the result from all this is that the union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments. if the circumstances of our country are such as to demand a compound instead of a simple, a confederate instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate the objects, as far as it can be done, which shall appertain to the different provinces or departments of power; allowing to each the most ample authority for fulfilling the objects committed to its charge. shall the union be constituted the guardian of the common safety? are fleets and armies and revenues necessary to this purpose? the government of the union must be empowered to pass all laws, and to make all regulations which have relation to them. the same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend. is the administration of justice between the citizens of the same state the proper department of the local governments? these must possess all the authorities which are connected with this object, and with every other that may be allotted to their particular cognizance and direction. not to confer in each case a degree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success. who is likely to make suitable provisions for the public defense, as that body to which the guardianship of the public safety is confided; which, as the centre of information, will best understand the extent and urgency of the dangers that threaten; as the representative of the whole, will feel itself most deeply interested in the preservation of every part; which, from the responsibility implied in the duty assigned to it, will be most sensibly impressed with the necessity of proper exertions; and which, by the extension of its authority throughout the states, can alone establish uniformity and concert in the plans and measures by which the common safety is to be secured? is there not a manifest inconsistency in devolving upon the federal government the care of the general defense, and leaving in the state governments the effective powers by which it is to be provided for? is not a want of co-operation the infallible consequence of such a system? and will not weakness, disorder, an undue distribution of the burdens and calamities of war, an unnecessary and intolerable increase of expense, be its natural and inevitable concomitants? have we not had unequivocal experience of its effects in the course of the revolution which we have just accomplished? every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management. it will indeed deserve the most vigilant and careful attention of the people, to see that it be modeled in such a manner as to admit of its being safely vested with the requisite powers. if any plan which has been, or may be, offered to our consideration, should not, upon a dispassionate inspection, be found to answer this description, it ought to be rejected. a government, the constitution of which renders it unfit to be trusted with all the powers which a free people ought to delegate to any government, would be an unsafe and improper depositary of the national interests. wherever these can with propriety be confided, the coincident powers may safely accompany them. this is the true result of all just reasoning upon the subject. and the adversaries of the plan promulgated by the convention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. they ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers. the powers are not too extensive for the objects of federal administration, or, in other words, for the management of our national interests; nor can any satisfactory argument be framed to show that they are chargeable with such an excess. if it be true, as has been insinuated by some of the writers on the other side, that the difficulty arises from the nature of the thing, and that the extent of the country will not permit us to form a government in which such ample powers can safely be reposed, it would prove that we ought to contract our views, and resort to the expedient of separate confederacies, which will move within more practicable spheres. for the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensable to their proper and efficient management. let us not attempt to reconcile contradictions, but firmly embrace a rational alternative. i trust, however, that the impracticability of one general system cannot be shown. i am greatly mistaken, if any thing of weight has yet been advanced of this tendency; and i flatter myself, that the observations which have been made in the course of these papers have served to place the reverse of that position in as clear a light as any matter still in the womb of time and experience can be susceptible of. this, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government; for any other can certainly never preserve the union of so large an empire. if we embrace the tenets of those who oppose the adoption of the proposed constitution, as the standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the impracticability of a national system pervading entire limits of the present confederacy. publius federalist no. 24 the powers necessary to the common defense further considered for the independent journal. wednesday, december 19, 1787 hamilton to the people of the state of new york: to the powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, i have met with but one specific objection, which, if i understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, i shall now endeavor to show, rests on weak and unsubstantial foundations. it has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to the practice of other free nations, and to the general sense of america, as expressed in most of the existing constitutions. the proprietary of this remark will appear, the moment it is recollected that the objection under consideration turns upon a supposed necessity of restraining the legislative authority of the nation, in the article of military establishments; a principle unheard of, except in one or two of our state constitutions, and rejected in all the rest. a stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the executive the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature. if he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the legislature, not in the executive; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity. disappointed in his first surmise, the person i have supposed would be apt to pursue his conjectures a little further. he would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. it must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor. if, under this impression, he proceeded to pass in review the several state constitutions, how great would be his disappointment to find that two only of them(1) contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the legislature to authorize their existence. still, however he would be persuaded that there must be some plausible foundation for the cry raised on this head. he would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. it would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the states. here, at length, he would expect to meet with a solution of the enigma. no doubt, he would observe to himself, the existing confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions. if he should now apply himself to a careful and critical survey of the articles of confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the state legislatures in this particular, had not imposed a single restraint on that of the united states. if he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! how else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of america as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? if, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings. but however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. from a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed. though a wide ocean separates the united states from europe, yet there are various considerations that warn us against an excess of confidence or security. on one side of us, and stretching far into our rear, are growing settlements subject to the dominion of britain. on the other side, and extending to meet the british settlements, are colonies and establishments subject to the dominion of spain. this situation and the vicinity of the west india islands, belonging to these two powers create between them, in respect to their american possessions and in relation to us, a common interest. the savage tribes on our western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. the improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. britain and spain are among the principal maritime powers of europe. a future concert of views between these nations ought not to be regarded as improbable. the increasing remoteness of consanguinity is every day diminishing the force of the family compact between france and spain. and politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. these circumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger. previous to the revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our western frontier. no person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the indians. these garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. the first is impracticable; and if practicable, would be pernicious. the militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. and if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. it would be as burdensome and injurious to the public as ruinous to private citizens. the latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature. in proportion to our increase in strength, it is probable, nay, it may be said certain, that britain and spain would augment their military establishments in our neighborhood. if we should not be willing to be exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our western settlements might be annoyed. there are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. it may be added that some of those posts will be keys to the trade with the indian nations. can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? to act this part would be to desert all the usual maxims of prudence and policy. if we mean to be a commercial people, or even to be secure on our atlantic side, we must endeavor, as soon as possible, to have a navy. to this purpose there must be dock-yards and arsenals; and for the defense of these, fortifications, and probably garrisons. when a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself. publius 1 this statement of the matter is taken from the printed collection of state constitutions. pennsylvania and north carolina are the two which contain the interdiction in these words: "as standing armies in time of peace are dangerous to liberty, they ought not to be kept up." this is, in truth, rather a caution than a prohibition. new hampshire, massachusetts, delaware, and maryland have, in each of their bills of rights, a clause to this effect: "standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature"; which is a formal admission of the authority of the legislature. new york has no bills of rights, and her constitution says not a word about the matter. no bills of rights appear annexed to the constitutions of the other states, except the foregoing, and their constitutions are equally silent. i am told, however that one or two states have bills of rights which do not appear in this collection; but that those also recognize the right of the legislative authority in this respect. federalist no. 25 the same subject continued (the powers necessary to the common defense further considered) from the new york packet. friday, december 21, 1787. hamilton to the people of the state of new york: it may perhaps be urged that the objects enumerated in the preceding number ought to be provided for by the state governments, under the direction of the union. but this would be, in reality, an inversion of the primary principle of our political association, as it would in practice transfer the care of the common defense from the federal head to the individual members: a project oppressive to some states, dangerous to all, and baneful to the confederacy. the territories of britain, spain, and of the indian nations in our neighborhood do not border on particular states, but encircle the union from maine to georgia. the danger, though in different degrees, is therefore common. and the means of guarding against it ought, in like manner, to be the objects of common councils and of a common treasury. it happens that some states, from local situation, are more directly exposed. new york is of this class. upon the plan of separate provisions, new york would have to sustain the whole weight of the establishments requisite to her immediate safety, and to the mediate or ultimate protection of her neighbors. this would neither be equitable as it respected new york nor safe as it respected the other states. various inconveniences would attend such a system. the states, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a considerable time to come, to bear the burden of competent provisions. the security of all would thus be subjected to the parsimony, improvidence, or inability of a part. if the resources of such part becoming more abundant and extensive, its provisions should be proportionally enlarged, the other states would quickly take the alarm at seeing the whole military force of the union in the hands of two or three of its members, and those probably amongst the most powerful. they would each choose to have some counterpoise, and pretenses could easily be contrived. in this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authority. reasons have been already given to induce a supposition that the state governments will too naturally be prone to a rivalship with that of the union, the foundation of which will be the love of power; and that in any contest between the federal head and one of its members the people will be most apt to unite with their local government. if, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the union. on the other hand, the liberty of the people would be less safe in this state of things than in that which left the national forces in the hands of the national government. as far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. for it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion. the framers of the existing confederation, fully aware of the danger to the union from the separate possession of military forces by the states, have, in express terms, prohibited them from having either ships or troops, unless with the consent of congress. the truth is, that the existence of a federal government and military establishments under state authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions. there are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. the design of the objection, which has been mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it is designed the prohibition should extend; whether to raising armies as well as to keeping them up in a season of tranquillity or not. if it be confined to the latter it will have no precise signification, and it will be ineffectual for the purpose intended. when armies are once raised what shall be denominated "keeping them up," contrary to the sense of the constitution? what time shall be requisite to ascertain the violation? shall it be a week, a month, a year? or shall we say they may be continued as long as the danger which occasioned their being raised continues? this would be to admit that they might be kept up in time of peace, against threatening or impending danger, which would be at once to deviate from the literal meaning of the prohibition, and to introduce an extensive latitude of construction. who shall judge of the continuance of the danger? this must undoubtedly be submitted to the national government, and the matter would then be brought to this issue, that the national government, to provide against apprehended danger, might in the first instance raise troops, and might afterwards keep them on foot as long as they supposed the peace or safety of the community was in any degree of jeopardy. it is easy to perceive that a discretion so latitudinary as this would afford ample room for eluding the force of the provision. the supposed utility of a provision of this kind can only be founded on the supposed probability, or at least possibility, of a combination between the executive and the legislative, in some scheme of usurpation. should this at any time happen, how easy would it be to fabricate pretenses of approaching danger! indian hostilities, instigated by spain or britain, would always be at hand. provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions. if we can reasonably presume such a combination to have been formed, and that the enterprise is warranted by a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext, may be applied to the execution of the project. if, to obviate this consequence, it should be resolved to extend the prohibition to the raising of armies in time of peace, the united states would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its constitution to prepare for defense, before it was actually invaded. as the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our territories must be waited for, as the legal warrant to the government to begin its levies of men for the protection of the state. we must receive the blow, before we could even prepare to return it. all that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. we must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation. here i expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. this doctrine, in substance, had like to have lost us our independence. it cost millions to the united states that might have been saved. the facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. the steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. considerations of economy, not less than of stability and vigor, confirm this position. the american militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. war, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice. all violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself. pennsylvania, at this instant, affords an example of the truth of this remark. the bill of rights of that state declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace. the conduct of massachusetts affords a lesson on the same subject, though on different ground. that state (without waiting for the sanction of congress, as the articles of the confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. the particular constitution of massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. it also teaches us, in its application to the united states, how little the rights of a feeble government are likely to be respected, even by its own constituents. and it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity. it was a fundamental maxim of the lacedaemonian commonwealth, that the post of admiral should not be conferred twice on the same person. the peloponnesian confederates, having suffered a severe defeat at sea from the athenians, demanded lysander, who had before served with success in that capacity, to command the combined fleets. the lacedaemonians, to gratify their allies, and yet preserve the semblance of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing lysander with the real power of admiral, under the nominal title of vice-admiral. this instance is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples; which is, that nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society. wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable. publius federalist no. 26 the idea of restraining the legislative authority in regard to the common defense considered. for the independent journal. saturday, december 22, 1788 hamilton to the people of the state of new york: it was a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between power and privilege, and combines the energy of government with the security of private rights. a failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better. the idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. we have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, pennsylvania and north carolina are the only two states by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority. the opponents of the proposed constitution combat, in this respect, the general decision of america; and instead of being taught by experience the propriety of correcting any extremes into which we may have heretofore run, they appear disposed to conduct us into others still more dangerous, and more extravagant. as if the tone of government had been found too high, or too rigid, the doctrines they teach are calculated to induce us to depress or to relax it, by expedients which, upon other occasions, have been condemned or forborne. it may be affirmed without the imputation of invective, that if the principles they inculcate, on various points, could so far obtain as to become the popular creed, they would utterly unfit the people of this country for any species of government whatever. but a danger of this kind is not to be apprehended. the citizens of america have too much discernment to be argued into anarchy. and i am much mistaken, if experience has not wrought a deep and solemn conviction in the public mind, that greater energy of government is essential to the welfare and prosperity of the community. it may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the exclusion of military establishments in time of peace. though in speculative minds it may arise from a contemplation of the nature and tendency of such institutions, fortified by the events that have happened in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which we derive from the nation from whom the inhabitants of these states have in general sprung. in england, for a long time after the norman conquest, the authority of the monarch was almost unlimited. inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. but it was not till the revolution in 1688, which elevated the prince of orange to the throne of great britain, that english liberty was completely triumphant. as incident to the undefined power of making war, an acknowledged prerogative of the crown, charles ii. had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. and this number james ii. increased to 30,000; who were paid out of his civil list. at the revolution, to abolish the exercise of so dangerous an authority, it became an article of the bill of rights then framed, that "the raising or keeping a standing army within the kingdom in time of peace, unless with the consent of parliament, was against law." in that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. the patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. they were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community. from the same source, the people of america may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace. the circumstances of a revolution quickened the public sensibility on every point connected with the security of popular rights, and in some instances raise the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic. the attempts of two of the states to restrict the authority of the legislature in the article of military establishments, are of the number of these instances. the principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies. even in some of the states, where this error was not adopted, we find unnecessary declarations that standing armies ought not to be kept up, in time of peace, without the consent of the legislature. i call them unnecessary, because the reason which had introduced a similar provision into the english bill of rights is not applicable to any of the state constitutions. the power of raising armies at all, under those constitutions, can by no construction be deemed to reside anywhere else, than in the legislatures themselves; and it was superfluous, if not absurd, to declare that a matter should not be done without the consent of a body, which alone had the power of doing it. accordingly, in some of these constitutions, and among others, in that of this state of new york, which has been justly celebrated, both in europe and america, as one of the best of the forms of government established in this country, there is a total silence upon the subject. it is remarkable, that even in the two states which seem to have meditated an interdiction of military establishments in time of peace, the mode of expression made use of is rather cautionary than prohibitory. it is not said, that standing armies shall not be kept up, but that they ought not to be kept up, in time of peace. this ambiguity of terms appears to have been the result of a conflict between jealousy and conviction; between the desire of excluding such establishments at all events, and the persuasion that an absolute exclusion would be unwise and unsafe. can it be doubted that such a provision, whenever the situation of public affairs was understood to require a departure from it, would be interpreted by the legislature into a mere admonition, and would be made to yield to the necessities or supposed necessities of the state? let the fact already mentioned, with respect to pennsylvania, decide. what then (it may be asked) is the use of such a provision, if it cease to operate the moment there is an inclination to disregard it? let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new constitution, for restraining the appropriations of money for military purposes to the period of two years. the former, by aiming at too much, is calculated to effect nothing; the latter, by steering clear of an imprudent extreme, and by being perfectly compatible with a proper provision for the exigencies of the nation, will have a salutary and powerful operation. the legislature of the united states will be obliged, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. they are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. as the spirit of party, in different degrees, must be expected to infect all political bodies, there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. the provision for the support of a military force will always be a favorable topic for declamation. as often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. independent of parties in the national legislature itself, as often as the period of discussion arrived, the state legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the voice, but, if necessary, the arm of their discontent. schemes to subvert the liberties of a great community require time to mature them for execution. an army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. is it probable that such a combination would exist at all? is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? is it presumable, that every man, the instant he took his seat in the national senate or house of representatives, would commence a traitor to his constituents and to his country? can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? if such presumptions can fairly be made, there ought at once to be an end of all delegated authority. the people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many states as there are counties, in order that they may be able to manage their own concerns in person. if such suppositions could even be reasonably made, still the concealment of the design, for any duration, would be impracticable. it would be announced, by the very circumstance of augmenting the army to so great an extent in time of profound peace. what colorable reason could be assigned, in a country so situated, for such vast augmentations of the military force? it is impossible that the people could be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery. it has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. but the question again recurs, upon what pretense could he be put in possession of a force of that magnitude in time of peace? if we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is levelled against the power of keeping up troops in time of peace. few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamities for which there is neither preventative nor cure. it cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defense. but it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the latter situation. it is not easy to conceive a possibility that dangers so formidable can assail the whole union, as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. but in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable. publius federalist no. 27 the same subject continued (the idea of restraining the legislative authority in regard to the common defense considered) from the new york packet. tuesday, december 25, 1787. hamilton to the people of the state of new york: it has been urged, in different shapes, that a constitution of the kind proposed by the convention cannot operate without the aid of a military force to execute its laws. this, however, like most other things that have been alleged on that side, rests on mere general assertion, unsupported by any precise or intelligible designation of the reasons upon which it is founded. as far as i have been able to divine the latent meaning of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature. waiving any exception that might be taken to the inaccuracy or inexplicitness of the distinction between internal and external, let us inquire what ground there is to presuppose that disinclination in the people. unless we presume at the same time that the powers of the general government will be worse administered than those of the state government, there seems to be no room for the presumption of ill-will, disaffection, or opposition in the people. i believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration. it must be admitted that there are exceptions to this rule; but these exceptions depend so entirely on accidental causes, that they cannot be considered as having any relation to the intrinsic merits or demerits of a constitution. these can only be judged of by general principles and maxims. various reasons have been suggested, in the course of these papers, to induce a probability that the general government will be better administered than the particular governments; the principal of which reasons are that the extension of the spheres of election will present a greater option, or latitude of choice, to the people; that through the medium of the state legislatures which are select bodies of men, and which are to appoint the members of the national senate there is reason to expect that this branch will generally be composed with peculiar care and judgment; that these circumstances promise greater knowledge and more extensive information in the national councils, and that they will be less apt to be tainted by the spirit of faction, and more out of the reach of those occasional ill-humors, or temporary prejudices and propensities, which, in smaller societies, frequently contaminate the public councils, beget injustice and oppression of a part of the community, and engender schemes which, though they gratify a momentary inclination or desire, terminate in general distress, dissatisfaction, and disgust. several additional reasons of considerable force, to fortify that probability, will occur when we come to survey, with a more critical eye, the interior structure of the edifice which we are invited to erect. it will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members. the hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. will not the government of the union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole confederacy, be more likely to repress the former sentiment and to inspire the latter, than that of a single state, which can only command the resources within itself? a turbulent faction in a state may easily suppose itself able to contend with the friends to the government in that state; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the union. if this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the confederacy than to that of a single member. i will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. man is very much a creature of habit. a thing that rarely strikes his senses will generally have but little influence upon his mind. a government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. the inference is, that the authority of the union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. the more it circulates through those channels and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion. one thing, at all events, must be evident, that a government like the one proposed would bid much fairer to avoid the necessity of using force, than that species of league contend for by most of its opponents; the authority of which should only operate upon the states in their political or collective capacities. it has been shown that in such a confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the natural offspring of the very frame of the government; and that as often as these happen, they can only be redressed, if at all, by war and violence. the plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several states, will enable the government to employ the ordinary magistracy of each, in the execution of its laws. it is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each state, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole union. it merits particular attention in this place, that the laws of the confederacy, as to the enumerated and legitimate objects of its jurisdiction, will become the supreme law of the land; to the observance of which all officers, legislative, executive, and judicial, in each state, will be bound by the sanctity of an oath. thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws.(1) any man who will pursue, by his own reflections, the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the union, if its powers are administered with a common share of prudence. if we will arbitrarily suppose the contrary, we may deduce any inferences we please from the supposition; for it is certainly possible, by an injudicious exercise of the authorities of the best government that ever was, or ever can be instituted, to provoke and precipitate the people into the wildest excesses. but though the adversaries of the proposed constitution should presume that the national rulers would be insensible to the motives of public good, or to the obligations of duty, i would still ask them how the interests of ambition, or the views of encroachment, can be promoted by such a conduct? publius 1. the sophistry which has been employed to show that this will tend to the destruction of the state governments, will, in its will, in its proper place, be fully detected. federalist no. 28 the same subject continued (the idea of restraining the legislative authority in regard to the common defense considered) for the independent journal. wednesday, december 26, 1787 hamilton to the people of the state of new york: that there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. should such emergencies at any time happen under the national government, there could be no remedy but force. the means to be employed must be proportioned to the extent of the mischief. if it should be a slight commotion in a small part of a state, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. an insurrection, whatever may be its immediate cause, eventually endangers all government. regard to the public peace, if not to the rights of the union, would engage the citizens to whom the contagion had not communicated itself to oppose the insurgents; and if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support. if, on the contrary, the insurrection should pervade a whole state, or a principal part of it, the employment of a different kind of force might become unavoidable. it appears that massachusetts found it necessary to raise troops for repressing the disorders within that state; that pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. suppose the state of new york had been inclined to re-establish her lost jurisdiction over the inhabitants of vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? would she not have been compelled to raise and to maintain a more regular force for the execution of her design? if it must then be admitted that the necessity of recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the state governments themselves, why should the possibility, that the national government might be under a like necessity, in similar extremities, be made an objection to its existence? is it not surprising that men who declare an attachment to the union in the abstract, should urge as an objection to the proposed constitution what applies with tenfold weight to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of civil society upon an enlarged scale? who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics? let us pursue this examination in another light. suppose, in lieu of one general system, two, or three, or even four confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these confederacies? would not each of them be exposed to the same casualties; and when these happened, be obliged to have recourse to the same expedients for upholding its authority which are objected to in a government for all the states? would the militia, in this supposition, be more ready or more able to support the federal authority than in the case of a general union? all candid and intelligent men must, upon due consideration, acknowledge that the principle of the objection is equally applicable to either of the two cases; and that whether we have one government for all the states, or different governments for different parcels of them, or even if there should be an entire separation of the states, there might sometimes be a necessity to make use of a force constituted differently from the militia, to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions. independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. this is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society.(1) if the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. in a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. the citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. the usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. the smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. in this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance. the obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. the natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. but in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. the people, by throwing themselves into either scale, will infallibly make it preponderate. if their rights are invaded by either, they can make use of the other as the instrument of redress. how wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized! it may safely be received as an axiom in our political system, that the state governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. the legislatures will have better means of information. they can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. they can readily communicate with each other in the different states, and unite their common forces for the protection of their common liberty. the great extent of the country is a further security. we have already experienced its utility against the attacks of a foreign power. and it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. if the federal army should be able to quell the resistance of one state, the distant states would have it in their power to make head with fresh forces. the advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive. we should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. for a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. when will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their state governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? the apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning. publius 1. its full efficacy will be examined hereafter. federalist no. 29 concerning the militia from the new york packet. wednesday, january 9, 1788 hamilton to the people of the state of new york: the power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the confederacy. it requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. it would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. this desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. it is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the united states, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress." of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. if a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. if standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the state is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. if the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. if it cannot avail itself of the former, it will be obliged to recur to the latter. to render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. in order to cast an odium upon the power of calling forth the militia to execute the laws of the union, it has been remarked that there is nowhere any provision in the proposed constitution for calling out the posse comitatus, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. there is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. the same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the posse comitatus. the latter, fortunately, is as much short of the truth as the former exceeds it. it would be as absurd to doubt, that a right to pass all laws necessary and proper to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. it being therefore evident that the supposition of a want of power to require the aid of the posse comitatus is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. what reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? what shall we think of the motives which could induce men of sense to reason in this manner? how shall we prevent a conflict between charity and conviction? by a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. it is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. what plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. but so far from viewing the matter in the same light with those who object to select corps as dangerous, were the constitution ratified, and were i to deliver my sentiments to a member of the federal legislature from this state on the subject of a militia establishment, i should hold to him, in substance, the following discourse: "the project of disciplining all the militia of the united states is as futile as it would be injurious, if it were capable of being carried into execution. a tolerable expertness in military movements is a business that requires time and practice. it is not a day, or even a week, that will suffice for the attainment of it. to oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. it would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the states. to attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. "but though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. the attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. by thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the state shall require it. this will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. this appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist." thus differently from the adversaries of the proposed constitution should i reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. but how the national legislature may reason on the point, is a thing which neither they nor i can foresee. there is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? what shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? what reasonable cause of apprehension can be inferred from a power in the union to prescribe regulations for the militia, and to command its services when necessary, while the particular states are to have the sole and exclusive appointment of the officers? if it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the states ought at once to extinguish it. there can be no doubt that this circumstance will always secure to them a preponderating influence over the militia. in reading many of the publications against the constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes- "gorgons, hydras, and chimeras dire"; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster. a sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. that of new hampshire is to be marched to georgia, of georgia to new hampshire, of new york to kentucky, and of kentucky to lake champlain. nay, the debts due to the french and dutch are to be paid in militiamen instead of louis d'ors and ducats. at one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of massachusetts; and that of massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic virginians. do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of america for infallible truths? if there should be an army to be made use of as the engine of despotism, what need of the militia? if there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? is this the way in which usurpers stride to dominion over a numerous and enlightened nation? do they begin by exciting the detestation of the very instruments of their intended usurpations? do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? or are they the inflammatory ravings of incendiaries or distempered enthusiasts? if we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs. in times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring state should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. this was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. if the power of affording it be placed under the direction of the union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of self-preservation to the too feeble impulses of duty and sympathy. publius federalist no. 30 concerning the general power of taxation from the new york packet. friday, december 28, 1787. hamilton to the people of the state of new york: it has been already observed that the federal government ought to possess the power of providing for the support of the national forces; in which proposition was intended to be included the expense of raising troops, of building and equipping fleets, and all other expenses in any wise connected with military arrangements and operations. but these are not the only objects to which the jurisdiction of the union, in respect to revenue, must necessarily be empowered to extend. it must embrace a provision for the support of the national civil list; for the payment of the national debts contracted, or that may be contracted; and, in general, for all those matters which will call for disbursements out of the national treasury. the conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation, in one shape or another. money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. a complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. from a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short course of time, perish. in the ottoman or turkish empire, the sovereign, though in other respects absolute master of the lives and fortunes of his subjects, has no right to impose a new tax. the consequence is that he permits the bashaws or governors of provinces to pillage the people without mercy; and, in turn, squeezes out of them the sums of which he stands in need, to satisfy his own exigencies and those of the state. in america, from a like cause, the government of the union has gradually dwindled into a state of decay, approaching nearly to annihilation. who can doubt, that the happiness of the people in both countries would be promoted by competent authorities in the proper hands, to provide the revenues which the necessities of the public might require? the present confederation, feeble as it is intended to repose in the united states, an unlimited power of providing for the pecuniary wants of the union. but proceeding upon an erroneous principle, it has been done in such a manner as entirely to have frustrated the intention. congress, by the articles which compose that compact (as has already been stated), are authorized to ascertain and call for any sums of money necessary, in their judgment, to the service of the united states; and their requisitions, if conformable to the rule of apportionment, are in every constitutional sense obligatory upon the states. these have no right to question the propriety of the demand; no discretion beyond that of devising the ways and means of furnishing the sums demanded. but though this be strictly and truly the case; though the assumption of such a right would be an infringement of the articles of union; though it may seldom or never have been avowedly claimed, yet in practice it has been constantly exercised, and would continue to be so, as long as the revenues of the confederacy should remain dependent on the intermediate agency of its members. what the consequences of this system have been, is within the knowledge of every man the least conversant in our public affairs, and has been amply unfolded in different parts of these inquiries. it is this which has chiefly contributed to reduce us to a situation, which affords ample cause both of mortification to ourselves, and of triumph to our enemies. what remedy can there be for this situation, but in a change of the system which has produced it in a change of the fallacious and delusive system of quotas and requisitions? what substitute can there be imagined for this ignis fatuus in finance, but that of permitting the national government to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government? ingenious men may declaim with plausibility on any subject; but no human ingenuity can point out any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies of the public treasury. the more intelligent adversaries of the new constitution admit the force of this reasoning; but they qualify their admission by a distinction between what they call internal and external taxation. the former they would reserve to the state governments; the latter, which they explain into commercial imposts, or rather duties on imported articles, they declare themselves willing to concede to the federal head. this distinction, however, would violate the maxim of good sense and sound policy, which dictates that every power ought to be in proportion to its object; and would still leave the general government in a kind of tutelage to the state governments, inconsistent with every idea of vigor or efficiency. who can pretend that commercial imposts are, or would be, alone equal to the present and future exigencies of the union? taking into the account the existing debt, foreign and domestic, upon any plan of extinguishment which a man moderately impressed with the importance of public justice and public credit could approve, in addition to the establishments which all parties will acknowledge to be necessary, we could not reasonably flatter ourselves, that this resource alone, upon the most improved scale, would even suffice for its present necessities. its future necessities admit not of calculation or limitation; and upon the principle, more than once adverted to, the power of making provision for them as they arise ought to be equally unconfined. i believe it may be regarded as a position warranted by the history of mankind, that, in the usual progress of things, the necessities of a nation, in every stage of its existence, will be found at least equal to its resources. to say that deficiencies may be provided for by requisitions upon the states, is on the one hand to acknowledge that this system cannot be depended upon, and on the other hand to depend upon it for every thing beyond a certain limit. those who have carefully attended to its vices and deformities as they have been exhibited by experience or delineated in the course of these papers, must feel invincible repugnancy to trusting the national interests in any degree to its operation. its inevitable tendency, whenever it is brought into activity, must be to enfeeble the union, and sow the seeds of discord and contention between the federal head and its members, and between the members themselves. can it be expected that the deficiencies would be better supplied in this mode than the total wants of the union have heretofore been supplied in the same mode? it ought to be recollected that if less will be required from the states, they will have proportionably less means to answer the demand. if the opinions of those who contend for the distinction which has been mentioned were to be received as evidence of truth, one would be led to conclude that there was some known point in the economy of national affairs at which it would be safe to stop and to say: thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. how is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? how can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? how can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? how will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? how can it undertake or execute any liberal or enlarged plans of public good? let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged. we will presume, for argument's sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the union. thus circumstanced, a war breaks out. what would be the probable conduct of the government in such an emergency? taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defense of the state? it is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety. to imagine that at such a crisis credit might be dispensed with, would be the extreme of infatuation. in the modern system of war, nations the most wealthy are obliged to have recourse to large loans. a country so little opulent as ours must feel this necessity in a much stronger degree. but who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying? the loans it might be able to procure would be as limited in their extent as burdensome in their conditions. they would be made upon the same principles that usurers commonly lend to bankrupt and fraudulent debtors, with a sparing hand and at enormous premiums. it may perhaps be imagined that, from the scantiness of the resources of the country, the necessity of diverting the established funds in the case supposed would exist, though the national government should possess an unrestrained power of taxation. but two considerations will serve to quiet all apprehension on this head: one is, that we are sure the resources of the community, in their full extent, will be brought into activity for the benefit of the union; the other is, that whatever deficiences there may be, can without difficulty be supplied by loans. the power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require. foreigners, as well as the citizens of america, could then reasonably repose confidence in its engagements; but to depend upon a government that must itself depend upon thirteen other governments for the means of fulfilling its contracts, when once its situation is clearly understood, would require a degree of credulity not often to be met with in the pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice. reflections of this kind may have trifling weight with men who hope to see realized in america the halcyon scenes of the poetic or fabulous age; but to those who believe we are likely to experience a common portion of the vicissitudes and calamities which have fallen to the lot of other nations, they must appear entitled to serious attention. such men must behold the actual situation of their country with painful solicitude, and deprecate the evils which ambition or revenge might, with too much facility, inflict upon it. publius federalist no. 31 the same subject continued (concerning the general power of taxation) from the new york packet. tuesday, january 1, 1788. hamilton to the people of the state of new york: in disquisitions of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. these contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. where it produces not this effect, it must proceed either from some defect or disorder in the organs of perception, or from the influence of some strong interest, or passion, or prejudice. of this nature are the maxims in geometry, that "the whole is greater than its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other." of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation. and there are other truths in the two latter sciences which, if they cannot pretend to rank in the class of axioms, are yet such direct inferences from them, and so obvious in themselves, and so agreeable to the natural and unsophisticated dictates of common-sense, that they challenge the assent of a sound and unbiased mind, with a degree of force and conviction almost equally irresistible. the objects of geometrical inquiry are so entirely abstracted from those pursuits which stir up and put in motion the unruly passions of the human heart, that mankind, without difficulty, adopt not only the more simple theorems of the science, but even those abstruse paradoxes which, however they may appear susceptible of demonstration, are at variance with the natural conceptions which the mind, without the aid of philosophy, would be led to entertain upon the subject. the infinite divisibility of matter, or, in other words, the infinite divisibility of a finite thing, extending even to the minutest atom, is a point agreed among geometricians, though not less incomprehensible to common-sense than any of those mysteries in religion, against which the batteries of infidelity have been so industriously leveled. but in the sciences of morals and politics, men are found far less tractable. to a certain degree, it is right and useful that this should be the case. caution and investigation are a necessary armor against error and imposition. but this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. though it cannot be pretended that the principles of moral and political knowledge have, in general, the same degree of certainty with those of the mathematics, yet they have much better claims in this respect than, to judge from the conduct of men in particular situations, we should be disposed to allow them. the obscurity is much oftener in the passions and prejudices of the reasoner than in the subject. men, upon too many occasions, do not give their own understandings fair play; but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties. how else could it happen (if we admit the objectors to be sincere in their opposition), that positions so clear as those which manifest the necessity of a general power of taxation in the government of the union, should have to encounter any adversaries among men of discernment? though these positions have been elsewhere fully stated, they will perhaps not be improperly recapitulated in this place, as introductory to an examination of what may have been offered by way of objection to them. they are in substance as follows: a government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people. as the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community. as revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies. as theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the states in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes. did not experience evince the contrary, it would be natural to conclude that the propriety of a general power of taxation in the national government might safely be permitted to rest on the evidence of these propositions, unassisted by any additional arguments or illustrations. but we find, in fact, that the antagonists of the proposed constitution, so far from acquiescing in their justness or truth, seem to make their principal and most zealous effort against this part of the plan. it may therefore be satisfactory to analyze the arguments with which they combat it. those of them which have been most labored with that view, seem in substance to amount to this: "it is not true, because the exigencies of the union may not be susceptible of limitation, that its power of laying taxes ought to be unconfined. revenue is as requisite to the purposes of the local administrations as to those of the union; and the former are at least of equal importance with the latter to the happiness of the people. it is, therefore, as necessary that the state governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the wants of the union. but an indefinite power of taxation in the latter might, and probably would in time, deprive the former of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. as the laws of the union are to become the supreme law of the land, as it is to have power to pass all laws that may be necessary for carrying into execution the authorities with which it is proposed to vest it, the national government might at any time abolish the taxes imposed for state objects upon the pretense of an interference with its own. it might allege a necessity of doing this in order to give efficacy to the national revenues. and thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the state governments." this mode of reasoning appears sometimes to turn upon the supposition of usurpation in the national government; at other times it seems to be designed only as a deduction from the constitutional operation of its intended powers. it is only in the latter light that it can be admitted to have any pretensions to fairness. the moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. whatever may be the limits or modifications of the powers of the union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution. i repeat here what i have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. the state governments, by their original constitutions, are invested with complete sovereignty. in what does our security consist against usurpation from that quarter? doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people. if the proposed construction of the federal government be found, upon an impartial examination of it, to be such as to afford, to a proper extent, the same species of security, all apprehensions on the score of usurpation ought to be discarded. it should not be forgotten that a disposition in the state governments to encroach upon the rights of the union is quite as probable as a disposition in the union to encroach upon the rights of the state governments. what side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ toward insuring success. as in republics strength is always on the side of the people, and as there are weighty reasons to induce a belief that the state governments will commonly possess most influence over them, the natural conclusion is that such contests will be most apt to end to the disadvantage of the union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members. but it is evident that all conjectures of this kind must be extremely vague and fallible: and that it is by far the safest course to lay them altogether aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in the constitution. every thing beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the state governments. upon this ground, which is evidently the true one, it will not be difficult to obviate the objections which have been made to an indefinite power of taxation in the united states. publius federalist no. 32 the same subject continued (concerning the general power of taxation) from the independent journal. wednesday, january 2, 1788. hamilton to the people of the state of new york: although i am of opinion that there would be no real danger of the consequences which seem to be apprehended to the state governments from a power in the union to control them in the levies of money, because i am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the state governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power; yet i am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual states should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. and making this concession, i affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its constitution. an entire consolidation of the states into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. but as the plan of the convention aims only at a partial union or consolidation, the state governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the united states. this exclusive delegation, or rather this alienation, of state sovereignty, would only exist in three cases: where the constitution in express terms granted an exclusive authority to the union; where it granted in one instance an authority to the union, and in another prohibited the states from exercising the like authority; and where it granted an authority to the union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant. i use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; i mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. these three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances: the last clause but one in the eighth section of the first article provides expressly that congress shall exercise "exclusive legislation" over the district to be appropriated as the seat of government. this answers to the first case. the first clause of the same section empowers congress "to lay and collect taxes, duties, imposts and excises"; and the second clause of the tenth section of the same article declares that, "no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws." hence would result an exclusive power in the union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any state; in consequence of which qualification, it now only extends to the duties on imports. this answers to the second case. the third will be found in that clause which declares that congress shall have power "to establish an uniform rule of naturalization throughout the united states." this must necessarily be exclusive; because if each state had power to prescribe a distinct rule, there could not be a uniform rule. a case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. i mean the power of imposing taxes on all articles other than exports and imports. this, i contend, is manifestly a concurrent and coequal authority in the united states and in the individual states. there is plainly no expression in the granting clause which makes that power exclusive in the union. there is no independent clause or sentence which prohibits the states from exercising it. so far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from the restraint laid upon the states in relation to duties on imports and exports. this restriction implies an admission that, if it were not inserted, the states would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the states remains undiminished. in any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the union of the power of laying such duties implied the exclusion of the states, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; i mean that the states, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the union. the restriction in question amounts to what lawyers call a negative pregnant that is, a negation of one thing, and an affirmance of another; a negation of the authority of the states to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. it would be mere sophistry to argue that it was meant to exclude them absolutely from the imposition of taxes of the former kind, and to leave them at liberty to lay others subject to the control of the national legislature. the restraining or prohibitory clause only says, that they shall not, without the consent of congress, lay such duties; and if we are to understand this in the sense last mentioned, the constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the states, with the consent of the national legislature, might tax imports and exports; and that they might tax every other article, unless controlled by the same body. if this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the union? it is evident that this could not have been the intention, and that it will not bear a construction of the kind. as to a supposition of repugnancy between the power of taxation in the states and in the union, it cannot be supported in that sense which would be requisite to work an exclusion of the states. it is, indeed, possible that a tax might be laid on a particular article by a state which might render it inexpedient that thus a further tax should be laid on the same article by the union; but it would not imply a constitutional inability to impose a further tax. the quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. the particular policy of the national and of the state systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. it is not, however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty. the necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the states are not explicitly divested in favor of the union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed constitution. we there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the states, to insert negative clauses prohibiting the exercise of them by the states. the tenth section of the first article consists altogether of such provisions. this circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position i have advanced and refutes every hypothesis to the contrary. publius federalist no. 33 the same subject continued (concerning the general power of taxation) from the independent journal. wednesday, january 2, 1788. hamilton to the people of the state of new york: the residue of the argument against the provisions of the constitution in respect to taxation is ingrafted upon the following clause. the last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature "to make all laws which shall be necessary and proper for carrying into execution the powers by that constitution vested in the government of the united states, or in any department or officer thereof"; and the second clause of the sixth article declares, "that the constitution and the laws of the united states made in pursuance thereof, and the treaties made by their authority shall be the supreme law of the land, any thing in the constitution or laws of any state to the contrary notwithstanding." these two clauses have been the source of much virulent invective and petulant declamation against the proposed constitution. they have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. they are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. this is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity. what is a power, but the ability or faculty of doing a thing? what is the ability to do a thing, but the power of employing the means necessary to its execution? what is a legislative power, but a power of making laws? what are the means to execute a legislative power but laws? what is the power of laying and collecting taxes, but a legislative power, or a power of making laws, to lay and collect taxes? what are the proper means of executing such a power, but necessary and proper laws? this simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. it conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power; and what does the unfortunate and calumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws necessary and proper to carry it into effect? i have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the union. but the same process will lead to the same result, in relation to all other powers declared in the constitution. and it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws. if there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. the declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless. but suspicion may ask, why then was it introduced? the answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the union. the convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the state governments will finally sap the foundations of the union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare. but it may be again asked, who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the union? i answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and i answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. if the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution as the exigency may suggest and prudence justify. the propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the federal legislature should attempt to vary the law of descent in any state, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the state? suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax imposed by the authority of a state; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its constitution plainly supposes to exist in the state governments? if there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths. but it is said that the laws of the union are to be the supreme law of the land. but what inference can be drawn from this, or what would they amount to, if they were not to be supreme? it is evident they would amount to nothing. a law, by the very meaning of the term, includes supremacy. it is a rule which those to whom it is prescribed are bound to observe. this results from every political association. if individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. if a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. it would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for political power and supremacy. but it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. these will be merely acts of usurpation, and will deserve to be treated as such. hence we perceive that the clause which declares the supremacy of the laws of the union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. it will not, i presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the constitution; which i mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed. though a law, therefore, laying a tax for the use of the united states would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the state, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the constitution. as far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. it is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. the inference from the whole is, that the individual states would, under the proposed constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. it will be shown in the next paper that this concurrent jurisdiction in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the state authority to that of the union. publius federalist no. 34 the same subject continued (concerning the general power of taxation) from the independent journal. saturday, january 5, 1788. hamilton to the people of the state of new york: i flatter myself it has been clearly shown in my last number that the particular states, under the proposed constitution, would have coequal authority with the union in the article of revenue, except as to duties on imports. as this leaves open to the states far the greatest part of the resources of the community, there can be no color for the assertion that they would not possess means as abundant as could be desired for the supply of their own wants, independent of all external control. that the field is sufficiently wide will more fully appear when we come to advert to the inconsiderable share of the public expenses for which it will fall to the lot of the state governments to provide. to argue upon abstract principles that this co-ordinate authority cannot exist, is to set up supposition and theory against fact and reality. however proper such reasonings might be to show that a thing ought not to exist, they are wholly to be rejected when they are made use of to prove that it does not exist contrary to the evidence of the fact itself. it is well known that in the roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to annul or repeal the acts of the other. but a man would have been regarded as frantic who should have attempted at rome to disprove their existence. it will be readily understood that i allude to the comitia centuriata and the comitia tributa. the former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy. and yet these two legislatures coexisted for ages, and the roman republic attained to the utmost height of human greatness. in the case particularly under consideration, there is no such contradiction as appears in the example cited; there is no power on either side to annul the acts of the other. and in practice there is little reason to apprehend any inconvenience; because, in a short course of time, the wants of the states will naturally reduce themselves within a very narrow compass; and in the interim, the united states will, in all probability, find it convenient to abstain wholly from those objects to which the particular states would be inclined to resort. to form a more precise judgment of the true merits of this question, it will be well to advert to the proportion between the objects that will require a federal provision in respect to revenue, and those which will require a state provision. we shall discover that the former are altogether unlimited, and that the latter are circumscribed within very moderate bounds. in pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. there ought to be a capacity to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. it is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the union, and to maintain those establishments which, for some time to come, would suffice in time of peace. but would it be wise, or would it not rather be the extreme of folly, to stop at this point, and to leave the government intrusted with the care of the national defense in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions? if, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise? though it is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable duration of the world. observations confined to the mere prospects of internal attacks can deserve no weight; though even these will admit of no satisfactory calculation: but if we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce. the support of a navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic. admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations. a cloud has been for some time hanging over the european world. if it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? no reasonable man would hastily pronounce that we are entirely out of its reach. or if the combustible materials that now seem to be collecting should be dissipated without coming to maturity, or if a flame should be kindled without extending to us, what security can we have that our tranquillity will long remain undisturbed from some other cause or from some other quarter? let us recollect that peace or war will not always be left to our option; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others. who could have imagined at the conclusion of the last war that france and britain, wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each other? to judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character. what are the chief sources of expense in every government? what has occasioned that enormous accumulation of debts with which several of the european nations are oppressed? the answers plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. the expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense. in the kingdom of great britain, where all the ostentatious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and armies. if, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. if we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good. but let us advert to the large debt which we have ourselves contracted in a single war, and let us only calculate on a common share of the events which disturb the peace of nations, and we shall instantly perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion between the objects of federal and state expenditures. it is true that several of the states, separately, are encumbered with considerable debts, which are an excrescence of the late war. but this cannot happen again, if the proposed system be adopted; and when these debts are discharged, the only call for revenue of any consequence, which the state governments will continue to experience, will be for the mere support of their respective civil list; to which, if we add all contingencies, the total amount in every state ought to fall considerably short of two hundred thousand pounds. in framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. if this principle be a just one our attention would be directed to a provision in favor of the state governments for an annual sum of about two hundred thousand pounds; while the exigencies of the union could be susceptible of no limits, even in imagination. in this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an exclusive source of revenue for any sum beyond the extent of two hundred thousand pounds? to extend its power further, in exclusion of the authority of the union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them. suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the union and its members, in proportion to their comparative necessities; what particular fund could have been selected for the use of the states, that would not either have been too much or too little too little for their present, too much for their future wants? as to the line of separation between external and internal taxes, this would leave to the states, at a rough computation, the command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its expenses; and to the union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. if we desert this boundary and content ourselves with leaving to the states an exclusive power of taxing houses and lands, there would still be a great disproportion between the means and the end; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. if any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular states, and would have left them dependent on the union for a provision for this purpose. the preceding train of observation will justify the position which has been elsewhere laid down, that "a concurrent jurisdiction in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of state authority to that of the union." any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great interests of the union to the power of the individual states. the convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the federal government with an adequate and independent power in the states to provide for their own necessities. there remain a few other lights, in which this important subject of taxation will claim a further consideration. publius federalist no. 35 the same subject continued (concerning the general power of taxation) for the independent journal. saturday, january 5, 1788 hamilton to the people of the state of new york: before we proceed to examine any other objections to an indefinite power of taxation in the union, i shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several states as among the citizens of the same state. suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. there are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. but all extremes are pernicious in various ways. exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. when the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. i am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. it is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. the merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale. the maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing states. but it is not so generally true as to render it equitable, that those duties should form the only national fund. when they are paid by the merchant they operate as an additional tax upon the importing state, whose citizens pay their proportion of them in the character of consumers. in this view they are productive of inequality among the states; which inequality would be increased with the increased extent of the duties. the confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing states. the states which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those states which are not in the same favorable situation. they would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. to make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. new york is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the union to external taxation may be aware of. new york is an importing state, and is not likely speedily to be, to any great extent, a manufacturing state. she would, of course, suffer in a double light from restraining the jurisdiction of the union to commercial imposts. so far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. i readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, hope, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. the first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. but even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. let us now return to the examination of objections. one which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the house of representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. this argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. but when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. the object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. i reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries. the idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. unless it were expressly provided in the constitution, that each different occupation should send one or more members, the thing would never take place in practice. mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. many of them, indeed, are immediately connected with the operations of commerce. they know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. they are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. these considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. we must therefore consider merchants as the natural representatives of all these classes of the community. with regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community. nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, i take to be perfectly united, from the wealthiest landlord down to the poorest tenant. no tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. but if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? if we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all. it is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. but we have seen that this will never happen under any arrangement that leaves the votes of the people free. where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. but where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? will not the landholder know and feel whatever will promote or insure the interest of landed property? and will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society? if we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? this dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent. there is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. the man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. it might be demonstrated that the most productive system of finance will always be the least burdensome. there can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. and this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. in any other sense the proposition has either no meaning, or an absurd one. and in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found. publius federalist no. 36 the same subject continued (concerning the general power of taxation) from the new york packet. tuesday, january 8, 1788. hamilton to the people of the state of new york: we have seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly represent all those different interests and views. if it should be objected that we have seen other descriptions of men in the local legislatures, i answer that it is admitted there are exceptions to the rule, but not in sufficient number to influence the general complexion or character of the government. there are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. the door ought to be equally open to all; and i trust, for the credit of human nature, that we shall see examples of such vigorous plants flourishing in the soil of federal as well as of state legislation; but occasional instances of this sort will not render the reasoning founded upon the general course of things, less conclusive. the subject might be placed in several other lights that would all lead to the same result; and in particular it might be asked, what greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of them? it is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the representative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice. but i forbear to dwell any longer on a matter which has hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency. there is another objection of a somewhat more precise nature that claims our attention. it has been asserted that a power of internal taxation in the national legislature could never be exercised with advantage, as well from the want of a sufficient knowledge of local circumstances, as from an interference between the revenue laws of the union and of the particular states. the supposition of a want of proper knowledge seems to be entirely destitute of foundation. if any question is depending in a state legislature respecting one of the counties, which demands a knowledge of local details, how is it acquired? no doubt from the information of the members of the county. cannot the like knowledge be obtained in the national legislature from the representatives of each state? and is it not to be presumed that the men who will generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate that information? is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each state; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry? nations in general, even under governments of the more popular kind, usually commit the administration of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature. inquisitive and enlightened statesmen are deemed everywhere best qualified to make a judicious selection of the objects proper for revenue; which is a clear indication, as far as the sense of mankind can have weight in the question, of the species of knowledge of local circumstances requisite to the purposes of taxation. the taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the direct and those of the indirect kind. though the objection be made to both, yet the reasoning upon it seems to be confined to the former branch. and indeed, as to the latter, by which must be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the nature of the difficulties apprehended. the knowledge relating to them must evidently be of a kind that will either be suggested by the nature of the article itself, or can easily be procured from any well-informed man, especially of the mercantile class. the circumstances that may distinguish its situation in one state from its situation in another must be few, simple, and easy to be comprehended. the principal thing to be attended to, would be to avoid those articles which had been previously appropriated to the use of a particular state; and there could be no difficulty in ascertaining the revenue system of each. this could always be known from the respective codes of laws, as well as from the information of the members from the several states. the objection, when applied to real property or to houses and lands, appears to have, at first sight, more foundation, but even in this view it will not bear a close examination. land taxes are commonly laid in one of two modes, either by actual valuations, permanent or periodical, or by occasional assessments, at the discretion, or according to the best judgment, of certain officers whose duty it is to make them. in either case, the execution of the business, which alone requires the knowledge of local details, must be devolved upon discreet persons in the character of commissioners or assessors, elected by the people or appointed by the government for the purpose. all that the law can do must be to name the persons or to prescribe the manner of their election or appointment, to fix their numbers and qualifications and to draw the general outlines of their powers and duties. and what is there in all this that cannot as well be performed by the national legislature as by a state legislature? the attention of either can only reach to general principles; local details, as already observed, must be referred to those who are to execute the plan. but there is a simple point of view in which this matter may be placed that must be altogether satisfactory. the national legislature can make use of the system of each state within that state. the method of laying and collecting this species of taxes in each state can, in all its parts, be adopted and employed by the federal government. let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each state, as described in the second section of the first article. an actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression. the abuse of this power of taxation seems to have been provided against with guarded circumspection. in addition to the precaution just mentioned, there is a provision that "all duties, imposts, and excises shall be uniform throughout the united states." it has been very properly observed by different speakers and writers on the side of the constitution, that if the exercise of the power of internal taxation by the union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. by way of answer to this, it has been triumphantly asked, why not in the first instance omit that ambiguous power, and rely upon the latter resource? two solid answers may be given. the first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual; and it is impossible to prove in theory, or otherwise than by the experiment, that it cannot be advantageously exercised. the contrary, indeed, appears most probable. the second answer is, that the existence of such a power in the constitution will have a strong influence in giving efficacy to requisitions. when the states know that the union can apply itself without their agency, it will be a powerful motive for exertion on their part. as to the interference of the revenue laws of the union, and of its members, we have already seen that there can be no clashing or repugnancy of authority. the laws cannot, therefore, in a legal sense, interfere with each other; and it is far from impossible to avoid an interference even in the policy of their different systems. an effectual expedient for this purpose will be, mutually, to abstain from those objects which either side may have first had recourse to. as neither can control the other, each will have an obvious and sensible interest in this reciprocal forbearance. and where there is an immediate common interest, we may safely count upon its operation. when the particular debts of the states are done away, and their expenses come to be limited within their natural compass, the possibility almost of interference will vanish. a small land tax will answer the purpose of the states, and will be their most simple and most fit resource. many spectres have been raised out of this power of internal taxation, to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain. as to the first point, there are two cases in which there can be no room for double sets of officers: one, where the right of imposing the tax is exclusively vested in the union, which applies to the duties on imports; the other, where the object has not fallen under any state regulation or provision, which may be applicable to a variety of objects. in other cases, the probability is that the united states will either wholly abstain from the objects preoccupied for local purposes, or will make use of the state officers and state regulations for collecting the additional imposition. this will best answer the views of revenue, because it will save expense in the collection, and will best avoid any occasion of disgust to the state governments and to the people. at all events, here is a practicable expedient for avoiding such an inconvenience; and nothing more can be required than to show that evils predicted to not necessarily result from the plan. as to any argument derived from a supposed system of influence, it is a sufficient answer to say that it ought not to be presumed; but the supposition is susceptible of a more precise answer. if such a spirit should infest the councils of the union, the most certain road to the accomplishment of its aim would be to employ the state officers as much as possible, and to attach them to the union by an accumulation of their emoluments. this would serve to turn the tide of state influence into the channels of the national government, instead of making federal influence flow in an opposite and adverse current. but all suppositions of this kind are invidious, and ought to be banished from the consideration of the great question before the people. they can answer no other end than to cast a mist over the truth. as to the suggestion of double taxation, the answer is plain. the wants of the union are to be supplied in one way or another; if to be done by the authority of the federal government, it will not be to be done by that of the state government. the quantity of taxes to be paid by the community must be the same in either case; with this advantage, if the provision is to be made by the union that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under state regulation, and of course will render it less necessary to recur to more inconvenient methods; and with this further advantage, that as far as there may be any real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in the choice and arrangement of the means; and must naturally tend to make it a fixed point of policy in the national administration to go as far as may be practicable in making the luxury of the rich tributary to the public treasury, in order to diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society. happy it is when the interest which the government has in the preservation of its own power, coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression! as to poll taxes, i, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those states(1) which have uniformly been the most tenacious of their rights, i should lament to see them introduced into practice under the national government. but does it follow because there is a power to lay them that they will actually be laid? every state in the union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. are the state governments to be stigmatized as tyrannies, because they possess this power? if they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? as little friendly as i am to the species of imposition, i still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. there are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. and the government, from the possibility of such emergencies, ought ever to have the option of making use of them. the real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. there may exist certain critical and tempestuous conjunctures of the state, in which a poll tax may become an inestimable resource. and as i know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, i acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security. (i have now gone through the examination of such of the powers proposed to be vested in the united states, which may be considered as having an immediate relation to the energy of the government; and have endeavored to answer the principal objections which have been made to them. i have passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the constitution, or of too manifest propriety to admit of controversy. the mass of judiciary power, however, might have claimed an investigation under this head, had it not been for the consideration that its organization and its extent may be more advantageously considered in connection. this has determined me to refer it to the branch of our inquiries upon which we shall next enter.)(e1) (i have now gone through the examination of those powers proposed to be conferred upon the federal government which relate more peculiarly to its energy, and to its efficiency for answering the great and primary objects of union. there are others which, though omitted here, will, in order to render the view of the subject more complete, be taken notice of under the next head of our inquiries. i flatter myself the progress already made will have sufficed to satisfy the candid and judicious part of the community that some of the objections which have been most strenuously urged against the constitution, and which were most formidable in their first appearance, are not only destitute of substance, but if they had operated in the formation of the plan, would have rendered it incompetent to the great ends of public happiness and national prosperity. i equally flatter myself that a further and more critical investigation of the system will serve to recommend it still more to every sincere and disinterested advocate for good government and will leave no doubt with men of this character of the propriety and expediency of adopting it. happy will it be for ourselves, and more honorable for human nature, if we have wisdom and virtue enough to set so glorious an example to mankind!)(e1) publius 1. the new england states. e1. two versions of this paragraph appear in different editions. federalist no. 37 concerning the difficulties of the convention in devising a proper form of government. from the daily advertiser. friday, january 11, 1788. madison to the people of the state of new york: in reviewing the defects of the existing confederation, and showing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration. but as the ultimate object of these papers is to determine clearly and fully the merits of this constitution, and the expediency of adopting it, our plan cannot be complete without taking a more critical and thorough survey of the work of the convention, without examining it on all its sides, comparing it in all its parts, and calculating its probable effects. that this remaining task may be executed under impressions conducive to a just and fair result, some reflections must in this place be indulged, which candor previously suggests. it is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. to those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. in some, it has been too evident from their own publications, that they have scanned the proposed constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question. in placing, however, these different characters on a level, with respect to the weight of their opinions, i wish not to insinuate that there may not be a material difference in the purity of their intentions. it is but just to remark in favor of the latter description, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. the predetermined adversary, on the other hand, can have been governed by no venial motive whatever. the intentions of the first may be upright, as they may on the contrary be culpable. the views of the last cannot be upright, and must be culpable. but the truth is, that these papers are not addressed to persons falling under either of these characters. they solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it. persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others. with equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention. the novelty of the undertaking immediately strikes us. it has been shown in the course of these papers, that the existing confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. it has been shown, that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. the most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them. among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject. energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. an irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the state administrations. on comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. the genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. a frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand. how far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. from the cursory view here taken, it must clearly appear to have been an arduous part. not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the state governments. every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature. the faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. the boundaries between the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. the most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the termination of the former and the commencement of the animal empire. a still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted. when we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science. the experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. the precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in great britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. the jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. all new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. the use of words is to express ideas. perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. but no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. and this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. when the almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated. here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. any one of these must produce a certain degree of obscurity. the convention, in delineating the boundary between the federal and state jurisdictions, must have experienced the full effect of them all. to the difficulties already mentioned may be added the interfering pretensions of the larger and smaller states. we cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. we may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. it is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. there are features in the constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations. nor could it have been the large and small states only, which would marshal themselves in opposition to each other on various points. other combinations, resulting from a difference of local position and policy, must have created additional difficulties. as every state may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the united states are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale. and although this variety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sensible of the contrary influence, which must have been experienced in the task of forming it. would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a constitution planned in his closet or in his imagination? the real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. it is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. it is impossible for the man of pious reflection not to perceive in it a finger of that almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution. we had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the united netherlands for reforming the baneful and notorious vices of their constitution. the history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments, and may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character. if, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. in revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions. the first is, that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. the second conclusion is that all the deputations composing the convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments. federalist no. 38 the same subject continued, and the incoherence of the objections to the new plan exposed. from the independent journal. saturday, january 12, 1788. madison to the people of the state of new york: it is not a little remarkable that in every case reported by ancient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity. minos, we learn, was the primitive founder of the government of crete, as zaleucus was of that of the locrians. theseus first, and after him draco and solon, instituted the government of athens. lycurgus was the lawgiver of sparta. the foundation of the original government of rome was laid by romulus, and the work completed by two of his elective successors, numa and tullius hostilius. on the abolition of royalty the consular administration was substituted by brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by tullius hostilius, and to which his address obtained the assent and ratification of the senate and people. this remark is applicable to confederate governments also. amphictyon, we are told, was the author of that which bore his name. the achaean league received its first birth from achaeus, and its second from aratus. what degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained. in some, however, the proceeding was strictly regular. draco appears to have been intrusted by the people of athens with indefinite powers to reform its government and laws. and solon, according to plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modeling the constitution. the proceedings under lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens. whence could it have proceeded, that a people, jealous as the greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen? whence could it have proceeded, that the athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow-citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected? these questions cannot be fully answered, without supposing that the fears of discord and disunion among a number of counsellors exceeded the apprehension of treachery or incapacity in a single individual. history informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect. solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. and lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. if these lessons teach us, on one hand, to admire the improvement made by america on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them. is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out? this conjecture is rendered probable, not only by many considerations of a general nature, but by the particular case of the articles of confederation. it is observable that among the numerous objections and amendments suggested by the several states, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error which on actual trial has discovered itself. and if we except the observations which new jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. there is abundant reason, nevertheless, to suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexibility, in some states, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of self-preservation. one state, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. every candid reader will make the proper reflections on these important facts. a patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. the physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. they are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. the prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted? and if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one? such a patient and in such a situation is america at this moment. she has been sensible of her malady. she has obtained a regular and unanimous advice from men of her own deliberate choice. and she is warned by others against following this advice under pain of the most fatal consequences. do the monitors deny the reality of her danger? no. do they deny the necessity of some speedy and powerful remedy? no. are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? let them speak for themselves. this one tells us that the proposed constitution ought to be rejected, because it is not a confederation of the states, but a government over individuals. another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. a third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. a fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the states in their political capacity. a fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. an objector in a large state exclaims loudly against the unreasonable equality of representation in the senate. an objector in a small state is equally loud against the dangerous inequality in the house of representatives. from this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. from another quarter, and sometimes from the same quarter, on another occasion, the cry is that the congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. a patriot in a state that does not import or export, discerns insuperable objections against the power of direct taxation. the patriotic adversary in a state of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. this politician discovers in the constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. with another class of adversaries to the constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. in the eyes of one the junction of the senate with the president in the responsible function of appointing to offices, instead of vesting this executive power in the executive alone, is the vicious part of the organization. to another, the exclusion of the house of representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. with another, the admission of the president into any share of a power which ever must be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. no part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. "we concur fully," reply others, "in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. our principal dislike to the organization arises from the extensive powers already lodged in that department." even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. the demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the president himself. as it can give no umbrage to the writers against the plan of the federal constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. let us further suppose that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, i leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the constitution, now before the public, would not stand as fair a chance for immortality, as lycurgus gave to that of sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a better, but until another should be agreed upon by this new assembly of lawgivers. it is a matter both of wonder and regret, that those who raise so many objections against the new constitution should never call to mind the defects of that which is to be exchanged for it. it is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. no man would refuse to give brass for silver or gold, because the latter had some alloy in it. no man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. but waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing confederation? is an indefinite power to raise money dangerous in the hands of the federal government? the present congress can make requisitions to any amount they please, and the states are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. is an indefinite power to raise troops dangerous? the confederation gives to congress that power also; and they have already begun to make use of it. is it improper and unsafe to intermix the different powers of government in the same body of men? congress, a single body of men, are the sole depositary of all the federal powers. is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? the confederation places them both in the hands of congress. is a bill of rights essential to liberty? the confederation has no bill of rights. is it an objection against the new constitution, that it empowers the senate, with the concurrence of the executive, to make treaties which are to be the laws of the land? the existing congress, without any such control, can make treaties which they themselves have declared, and most of the states have recognized, to be the supreme law of the land. is the importation of slaves permitted by the new constitution for twenty years? by the old it is permitted forever. i shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of congress on the state for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. then, say i, in the first place, that the confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing congress; in either of which events, the contrast just stated will hold good. but this is not all. out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the union. it is now no longer a point of speculation and hope, that the western territory is a mine of vast wealth to the united states; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. a very large proportion of this fund has been already surrendered by individual states; and it may with reason be expected that the remaining states will not persist in withholding similar proofs of their equity and generosity. we may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the united states, will soon become a national stock. congress have assumed the administration of this stock. they have begun to render it productive. congress have undertaken to do more: they have proceeded to form new states, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such states shall be admitted into the confederacy. all this has been done; and done without the least color of constitutional authority. yet no blame has been whispered; no alarm has been sounded. a great and independent fund of revenue is passing into the hands of a single body of men, who can raise troops to an indefinite number, and appropriate money to their support for an indefinite period of time. and yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the union against the future powers and resources of a body constructed like the existing congress, than to save it from the dangers threatened by the present impotency of that assembly? i mean not, by any thing here said, to throw censure on the measures which have been pursued by congress. i am sensible they could not have done otherwise. the public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. but is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? a dissolution or usurpation is the dreadful dilemma to which it is continually exposed. publius federalist no. 39 the conformity of the plan to republican principles for the independent journal. wednesday, january 16, 1788 madison to the people of the state of new york: the last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking. the first question that offers itself is, whether the general form and aspect of the government be strictly republican. it is evident that no other form would be reconcilable with the genius of the people of america; with the fundamental principles of the revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. if the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible. what, then, are the distinctive characters of the republican form? were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different states, no satisfactory one would ever be found. holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. the same title has been bestowed on venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles. poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. the government of england, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. these examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions. if we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. it is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the united states, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. according to the constitution of every state in the union, some or other of the officers of government are appointed indirectly only by the people. according to most of them, the chief magistrate himself is so appointed. and according to one, this mode of appointment is extended to one of the co-ordinate branches of the legislature. according to all the constitutions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. according to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior. on comparing the constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. the house of representatives, like that of one branch at least of all the state legislatures, is elected immediately by the great body of the people. the senate, like the present congress, and the senate of maryland, derives its appointment indirectly from the people. the president is indirectly derived from the choice of the people, according to the example in most of the states. even the judges, with all other officers of the union, will, as in the several states, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard, and to the model of state constitutions the house of representatives is periodically elective, as in all the states; and for the period of two years, as in the state of south carolina. the senate is elective, for the period of six years; which is but one year more than the period of the senate of maryland, and but two more than that of the senates of new york and virginia. the president is to continue in office for the period of four years; as in new york and delaware, the chief magistrate is elected for three years, and in south carolina for two years. in the other states the election is annual. in several of the states, however, no constitutional provision is made for the impeachment of the chief magistrate. and in delaware and virginia he is not impeachable till out of office. the president of the united states is impeachable at any time during his continuance in office. the tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. the tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the state constitutions. could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the state governments; and in its express guaranty of the republican form to each of the latter. "but it was not sufficient," say the adversaries of the proposed constitution, "for the convention to adhere to the republican form. they ought, with equal care, to have preserved the federal form, which regards the union as a confederacy of sovereign states; instead of which, they have framed a national government, which regards the union as a consolidation of the states." and it is asked by what authority this bold and radical innovation was undertaken? the handle which has been made of this objection requires that it should be examined with some precision. without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority. first. in order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced. on examining the first relation, it appears, on one hand, that the constitution is to be founded on the assent and ratification of the people of america, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong. it is to be the assent and ratification of the several states, derived from the supreme authority in each state, the authority of the people themselves. the act, therefore, establishing the constitution, will not be a national, but a federal act. that it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent states, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the union, nor from that of a majority of the states. it must result from the unanimous assent of the several states that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the united states would bind the minority, in the same manner as the majority in each state must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the states as evidence of the will of a majority of the people of the united states. neither of these rules have been adopted. each state, in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. in this relation, then, the new constitution will, if established, be a federal, and not a national constitution. the next relation is, to the sources from which the ordinary powers of government are to be derived. the house of representatives will derive its powers from the people of america; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state. so far the government is national, not federal. the senate, on the other hand, will derive its powers from the states, as political and coequal societies; and these will be represented on the principle of equality in the senate, as they now are in the existing congress. so far the government is federal, not national. the executive power will be derived from a very compound source. the immediate election of the president is to be made by the states in their political characters. the votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. the eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. from this aspect of the government it appears to be of a mixed character, presenting at least as many federal as national features. the difference between a federal and national government, as it relates to the operation of the government, is supposed to consist in this, that in the former the powers operate on the political bodies composing the confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. on trying the constitution by this criterion, it falls under the national, not the federal character; though perhaps not so completely as has been understood. in several cases, and particularly in the trial of controversies to which states may be parties, they must be viewed and proceeded against in their collective and political capacities only. so far the national countenance of the government on this side seems to be disfigured by a few federal features. but this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a national government. but if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. the idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. among a people consolidated into one nation, this supremacy is completely vested in the national legislature. among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. in the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. in the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. in this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects. it is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. but this does not change the principle of the case. the decision is to be impartially made, according to the rules of the constitution; and all the usual and most effectual precautions are taken to secure this impartiality. some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated. if we try the constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. were it wholly federal, on the other hand, the concurrence of each state in the union would be essential to every alteration that would be binding on all. the mode provided by the plan of the convention is not founded on either of these principles. in requiring more than a majority, and principles. in requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national and advances towards the federal character; in rendering the concurrence of less than the whole number of states sufficient, it loses again the federal and partakes of the national character. the proposed constitution, therefore, is, in strictness, neither a national nor a federal constitution, but a composition of both. in its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national. publius federalist no. 40 on the powers of the convention to form a mixed government examined and sustained for the new york packet. friday, january 18, 1788. madison to the people of the state of new york: the second point to be examined is, whether the convention were authorized to frame and propose this mixed constitution. the powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. as all of these, however, had reference, either to the recommendation from the meeting at annapolis, in september, 1786, or to that from congress, in february, 1787, it will be sufficient to recur to these particular acts. the act from annapolis recommends the "appointment of commissioners to take into consideration the situation of the united states; to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the union; and to report such an act for that purpose, to the united states in congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every state, will effectually provide for the same." the recommendatory act of congress is in the words following: "whereas, there is provision in the articles of confederation and perpetual union, for making alterations therein, by the assent of a congress of the united states, and of the legislatures of the several states; and whereas experience hath evinced, that there are defects in the present confederation; as a mean to remedy which, several of the states, and particularly the state of new york, by express instructions to their delegates in congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these states a firm national government: "resolved, that in the opinion of congress it is expedient, that on the second monday of may next a convention of delegates, who shall have been appointed by the several states, be held at philadelphia, for the sole and express purpose of revising the articles of confederation, and reporting to congress and the several legislatures such alterations and provisions therein, as shall, when agreed to in congress, and confirmed by the states, render the federal constitution adequate to the exigencies of government and the preservation of the union." from these two acts, it appears, 1st, that the object of the convention was to establish, in these states, a firm national government; 2d, that this government was to be such as would be adequate to the exigencies of government and the preservation of the union; 3d, that these purposes were to be effected by alterations and provisions in the articles of confederation, as it is expressed in the act of congress, or by such further provisions as should appear necessary, as it stands in the recommendatory act from annapolis; 4th, that the alterations and provisions were to be reported to congress, and to the states, in order to be agreed to by the former and confirmed by the latter. from a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. they were to frame a national government, adequate to the exigencies of government, and of the union; and to reduce the articles of confederation into such form as to accomplish these purposes. there are two rules of construction, dictated by plain reason, as well as founded on legal axioms. the one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. the other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means. suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a national and adequate government could not possibly, in the judgment of the convention, be affected by alterations and provisions in the articles of confederation; which part of the definition ought to have been embraced, and which rejected? which was the more important, which the less important part? which the end; which the means? let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. let them declare, whether it was of most importance to the happiness of the people of america, that the articles of confederation should be disregarded, and an adequate government be provided, and the union preserved; or that an adequate government should be omitted, and the articles of confederation preserved. let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed. but is it necessary to suppose that these expressions are absolutely irreconcilable to each other; that no alterations or provisions in the articles of the confederation could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention? no stress, it is presumed, will, in this case, be laid on the title; a change of that could never be deemed an exercise of ungranted power. alterations in the body of the instrument are expressly authorized. new provisions therein are also expressly authorized. here then is a power to change the title; to insert new articles; to alter old ones. must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of alterations and further provisions, and that which amounts to a transmutation of the government. will it be said that the alterations ought not to have touched the substance of the confederation? the states would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some substantial reform had not been in contemplation. will it be said that the fundamental principles of the confederation were not within the purview of the convention, and ought not to have been varied? i ask, what are these principles? do they require that, in the establishment of the constitution, the states should be regarded as distinct and independent sovereigns? they are so regarded by the constitution proposed. do they require that the members of the government should derive their appointment from the legislatures, not from the people of the states? one branch of the new government is to be appointed by these legislatures; and under the confederation, the delegates to congress may all be appointed immediately by the people, and in two states(1) are actually so appointed. do they require that the powers of the government should act on the states, and not immediately on individuals? in some instances, as has been shown, the powers of the new government will act on the states in their collective characters. in some instances, also, those of the existing government act immediately on individuals. in cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the indians; of claims under grants of land by different states; and, above all, in the case of trials by courts-marshal in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the confederation operate immediately on the persons and interests of individual citizens. do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the states? the confederation itself authorizes a direct tax, to a certain extent, on the post office. the power of coinage has been so construed by congress as to levy a tribute immediately from that source also. but pretermitting these instances, was it not an acknowledged object of the convention and the universal expectation of the people, that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue? had not congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the confederation? had not every state but one; had not new york herself, so far complied with the plan of congress as to recognize the principle of the innovation? do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the states should be left in possession of their sovereignty and independence? we have seen that in the new government, as in the old, the general powers are limited; and that the states, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. the truth is, that the great principles of the constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of confederation. the misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old. in one particular it is admitted that the convention have departed from the tenor of their commission. instead of reporting a plan requiring the confirmation of the legislatures of all the states, they have reported a plan which is to be confirmed by the people, and may be carried into effect by nine states only. it is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. the forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve states to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a majority of one sixtieth of the people of america to a measure approved and called for by the voice of twelve states, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. as this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, i dismiss it without further observation. the third point to be inquired into is, how far considerations of duty arising out of the case itself could have supplied any defect of regular authority. in the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor, and by the same rules, as if they had been real and final powers for the establishment of a constitution for the united states. we have seen in what manner they have borne the trial even on that supposition. it is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the states, and so understood by the convention; and that the latter have accordingly planned and proposed a constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. this reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention. let us view the ground on which the convention stood. it may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis, which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment. it could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. they had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the united states. they had seen in the origin and progress of the experiment, the alacrity with which the proposition, made by a single state (virginia), towards a partial amendment of the confederation, had been attended to and promoted. they had seen the liberty assumed by a very few deputies from a very few states, convened at annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen states. they had seen, in a variety of instances, assumptions by congress, not only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. they must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,"(2) since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some informal and unauthorized propositions, made by some patriotic and respectable citizen or number of citizens. they must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the states were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that conventions were elected in the several states for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. they must have borne in mind, that as the plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities. it might even have occurred to them, that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies. had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve states who usurped the power of sending deputies to the convention, a body utterly unknown to their constitutions; for congress, who recommended the appointment of this body, equally unknown to the confederation; and for the state of new york, in particular, which first urged and then complied with this unauthorized interposition? but that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a constitution for their country: does it follow that the constitution ought, for that reason alone, to be rejected? if, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? the prudent inquiry, in all cases, ought surely to be, not so much from whom the advice comes, as whether the advice be good. the sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of america. how far this character is due to the constitution, is the subject under investigation. publius 1. connecticut and rhode island. 2. declaration of independence. federalist no. 41 general view of the powers conferred by the constitution for the independent journal. saturday, january 19, 1788 madison to the people of the state of new york: the constitution proposed by the convention may be considered under two general points of view. the first relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the states. the second, to the particular structure of the government, and the distribution of this power among its several branches. under the first view of the subject, two important questions arise: 1. whether any part of the powers transferred to the general government be unnecessary or improper? 2. whether the entire mass of them be dangerous to the portion of jurisdiction left in the several states? is the aggregate power of the general government greater than ought to have been vested in it? this is the first question. it cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. they have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. this method of handling the subject cannot impose on the good sense of the people of america. it may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the greater, not the perfect, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. they will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment. that we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: 1. security against foreign danger; 2. regulation of the intercourse with foreign nations; 3. maintenance of harmony and proper intercourse among the states; 4. certain miscellaneous objects of general utility; 5. restraint of the states from certain injurious acts; 6. provisions for giving due efficacy to all these powers. the powers falling within the first class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money. security against foreign danger is one of the primitive objects of civil society. it is an avowed and essential object of the american union. the powers requisite for attaining it must be effectually confided to the federal councils. is the power of declaring war necessary? no man will answer this question in the negative. it would be superfluous, therefore, to enter into a proof of the affirmative. the existing confederation establishes this power in the most ample form. is the power of raising armies and equipping fleets necessary? this is involved in the foregoing power. it is involved in the power of self-defense. but was it necessary to give an indefinite power of raising troops, as well as providing fleets; and of maintaining both in peace, as well as in war? the answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. the answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. with what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? if a federal constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety. how could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? the means of security can only be regulated by the means and the danger of attack. they will, in fact, be ever determined by these rules, and by no others. it is in vain to oppose constitutional barriers to the impulse of self-preservation. it is worse than in vain; because it plants in the constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions. if one nation maintains constantly a disciplined army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions. the fifteenth century was the unhappy epoch of military establishments in the time of peace. they were introduced by charles vii. of france. all europe has followed, or been forced into, the example. had the example not been followed by other nations, all europe must long ago have worn the chains of a universal monarch. were every nation except france now to disband its peace establishments, the same event might follow. the veteran legions of rome were an overmatch for the undisciplined valor of all other nations and rendered her the mistress of the world. not the less true is it, that the liberties of rome proved the final victim to her military triumphs; and that the liberties of europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. a standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. on the smallest scale it has its inconveniences. on an extensive scale its consequences may be fatal. on any scale it is an object of laudable circumspection and precaution. a wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties. the clearest marks of this prudence are stamped on the proposed constitution. the union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. america united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than america disunited, with a hundred thousand veterans ready for combat. it was remarked, on a former occasion, that the want of this pretext had saved the liberties of one nation in europe. being rendered by her insular situation and her maritime resources impregnable to the armies of her neighbors, the rulers of great britain have never been able, by real or artificial dangers, to cheat the public into an extensive peace establishment. the distance of the united states from the powerful nations of the world gives them the same happy security. a dangerous establishment can never be necessary or plausible, so long as they continue a united people. but let it never, for a moment, be forgotten that they are indebted for this advantage to the union alone. the moment of its dissolution will be the date of a new order of things. the fears of the weaker, or the ambition of the stronger states, or confederacies, will set the same example in the new, as charles vii. did in the old world. the example will be followed here from the same motives which produced universal imitation there. instead of deriving from our situation the precious advantage which great britain has derived from hers, the face of america will be but a copy of that of the continent of europe. it will present liberty everywhere crushed between standing armies and perpetual taxes. the fortunes of disunited america will be even more disastrous than those of europe. the sources of evil in the latter are confined to her own limits. no superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge. in america the miseries springing from her internal jealousies, contentions, and wars, would form a part only of her lot. a plentiful addition of evils would have their source in that relation in which europe stands to this quarter of the earth, and which no other quarter of the earth bears to europe. this picture of the consequences of disunion cannot be too highly colored, or too often exhibited. every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the union of america, and be able to set a due value on the means of preserving it. next to the effectual establishment of the union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. this precaution the constitution has prudently added. i will not repeat here the observations which i flatter myself have placed this subject in a just and satisfactory light. but it may not be improper to take notice of an argument against this part of the constitution, which has been drawn from the policy and practice of great britain. it is said that the continuance of an army in that kingdom requires an annual vote of the legislature; whereas the american constitution has lengthened this critical period to two years. this is the form in which the comparison is usually stated to the public: but is it a just form? is it a fair comparison? does the british constitution restrain the parliamentary discretion to one year? does the american impose on the congress appropriations for two years? on the contrary, it cannot be unknown to the authors of the fallacy themselves, that the british constitution fixes no limit whatever to the discretion of the legislature, and that the american ties down the legislature to two years, as the longest admissible term. had the argument from the british example been truly stated, it would have stood thus: the term for which supplies may be appropriated to the army establishment, though unlimited by the british constitution, has nevertheless, in practice, been limited by parliamentary discretion to a single year. now, if in great britain, where the house of commons is elected for seven years; where so great a proportion of the members are elected by so small a proportion of the people; where the electors are so corrupted by the representatives, and the representatives so corrupted by the crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year, ought not suspicion herself to blush, in pretending that the representatives of the united states, elected freely by the whole body of the people, every second year, cannot be safely intrusted with the discretion over such appropriations, expressly limited to the short period of two years? a bad cause seldom fails to betray itself. of this truth, the management of the opposition to the federal government is an unvaried exemplification. but among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. the attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a constitution fully adequate to the national defense and the preservation of the union, can save america from as many standing armies as it may be split into states or confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter. the palpable necessity of the power to provide and maintain a navy has protected that part of the constitution against a spirit of censure, which has spared few other parts. it must, indeed, be numbered among the greatest blessings of america, that as her union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. in this respect our situation bears another likeness to the insular advantage of great britain. the batteries most capable of repelling foreign enterprises on our safety, are happily such as can never be turned by a perfidious government against our liberties. the inhabitants of the atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has remained safe against the predatory spirit of licentious adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing government for the protection of those from whom it claims allegiance, but to causes that are fugitive and fallacious. if we except perhaps virginia and maryland, which are peculiarly vulnerable on their eastern frontiers, no part of the union ought to feel more anxiety on this subject than new york. her seacoast is extensive. a very important district of the state is an island. the state itself is penetrated by a large navigable river for more than fifty leagues. the great emporium of its commerce, the great reservoir of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians. should a war be the result of the precarious situation of european affairs, and all the unruly passions attending it be let loose on the ocean, our escape from insults and depredations, not only on that element, but every part of the other bordering on it, will be truly miraculous. in the present condition of america, the states more immediately exposed to these calamities have nothing to hope from the phantom of a general government which now exists; and if their single resources were equal to the task of fortifying themselves against the danger, the object to be protected would be almost consumed by the means of protecting them. the power of regulating and calling forth the militia has been already sufficiently vindicated and explained. the power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense, is properly thrown into the same class with it. this power, also, has been examined already with much attention, and has, i trust, been clearly shown to be necessary, both in the extent and form given to it by the constitution. i will address one additional reflection only to those who contend that the power ought to have been restrained to external--taxation by which they mean, taxes on articles imported from other countries. it cannot be doubted that this will always be a valuable source of revenue; that for a considerable time it must be a principal source; that at this moment it is an essential one. but we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports; and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. as long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply. as soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. in a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. a system of government, meant for duration, ought to contemplate these revolutions, and be able to accommodate itself to them. some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the constitution, on the language in which it is defined. it has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the united states," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. no stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. had no other enumeration or definition of the powers of the congress been found in the constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. a power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare." but what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? if the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? for what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. but the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the constitution, we must take the liberty of supposing, had not its origin with the latter. the objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of confederation. the objects of the union among the states, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare." the terms of article eighth are still more identical: "all charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the united states in congress, shall be defrayed out of a common treasury," etc. a similar language again occurs in article ninth. construe either of these articles by the rules which would justify the construction put on the new constitution, and they vest in the existing congress a power to legislate in all cases whatsoever. but what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? i appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of congress as they now make use of against the convention. how difficult it is for error to escape its own condemnation! publius federalist no. 42 the powers conferred by the constitution further considered from the new york packet. tuesday, january 22, 1788. madison to the people of the state of new york: the second class of powers, lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations. this class of powers forms an obvious and essential branch of the federal administration. if we are to be one nation in any respect, it clearly ought to be in respect to other nations. the powers to make treaties and to send and receive ambassadors, speak their own propriety. both of them are comprised in the articles of confederation, with this difference only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the states; and that a power of appointing and receiving "other public ministers and consuls," is expressly and very properly added to the former provision concerning ambassadors. the term ambassador, if taken strictly, as seems to be required by the second of the articles of confederation, comprehends the highest grade only of public ministers, and excludes the grades which the united states will be most likely to prefer, where foreign embassies may be necessary. and under no latitude of construction will the term comprehend consuls. yet it has been found expedient, and has been the practice of congress, to employ the inferior grades of public ministers, and to send and receive consuls. it is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of american consuls into foreign countries may perhaps be covered under the authority, given by the ninth article of the confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the united states. but the admission of consuls into the united states, where no previous treaty has stipulated it, seems to have been nowhere provided for. a supply of the omission is one of the lesser instances in which the convention have improved on the model before them. but the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. a list of the cases in which congress have been betrayed, or forced by the defects of the confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old. the power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government, and is a still greater improvement on the articles of confederation. these articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the confederacy with foreign nations. the provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. the definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. a definition of felonies on the high seas is evidently requisite. felony is a term of loose signification, even in the common law of england; and of various import in the statute law of that kingdom. but neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. the meaning of the term, as defined in the codes of the several states, would be as impracticable as the former would be a dishonorable and illegitimate guide. it is not precisely the same in any two of the states; and varies in each with every revision of its criminal laws. for the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper. the regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration. it were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. but it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. it ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these states, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few states which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the union. happy would it be for the unfortunate africans, if an equal prospect lay before them of being redeemed from the oppressions of their european brethren! attempts have been made to pervert this clause into an objection against the constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from europe to america. i mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government. the powers included in the third class are those which provide for the harmony and proper intercourse among the states. under this head might be included the particular restraints imposed on the authority of the states, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. i shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several states and the indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and securities of the united states; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each state shall be proved, and the effect they shall have in other states; and to establish post offices and post roads. the defect of power in the existing confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. to the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. a very material object of this power was the relief of the states which import and export through other states, from the improper contributions levied on them by the latter. were these at liberty to regulate the trade between state and state, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. we may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. to those who do not view the question through the medium of passion or of interest, the desire of the commercial states to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. but the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. the necessity of a superintending authority over the reciprocal trade of confederated states, has been illustrated by other examples as well as our own. in switzerland, where the union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. in germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. among the restraints imposed by the union of the netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission. the regulation of commerce with the indian tribes is very properly unfettered from two limitations in the articles of confederation, which render the provision obscure and contradictory. the power is there restrained to indians, not members of any of the states, and is not to violate or infringe the legislative right of any state within its own limits. what description of indians are to be deemed members of a state, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. and how the trade with indians, though not members of a state, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. this is not the only case in which the articles of confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the union, with complete sovereignty in the states; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. all that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the constitution has supplied a material omission in the articles of confederation. the authority of the existing congress is restrained to the regulation of coin struck by their own authority, or that of the respective states. it must be seen at once that the proposed uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different states. the punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. the regulation of weights and measures is transferred from the articles of confederation, and is founded on like considerations with the preceding power of regulating coin. the dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. in the fourth article of the confederation, it is declared "that the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall, in every other, enjoy all the privileges of trade and commerce," etc. there is a confusion of language here, which is remarkable. why the terms free inhabitants are used in one part of the article, free citizens in another, and people in another; or what was meant by superadding to "all privileges and immunities of free citizens," "all the privileges of trade and commerce," cannot easily be determined. it seems to be a construction scarcely avoidable, however, that those who come under the denomination of free inhabitants of a state, although not citizens of such state, are entitled, in every other state, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own state: so that it may be in the power of a particular state, or rather every state is laid under a necessity, not only to confer the rights of citizenship in other states upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. but were an exposition of the term "inhabitants" to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. the very improper power would still be retained by each state, of naturalizing aliens in every other state. in one state, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. an alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one state be preposterously rendered paramount to the law of another, within the jurisdiction of the other. we owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. by the laws of several states, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. what would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another state, and then asserted their rights as such, both to residence and citizenship, within the state proscribing them? whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. the new constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the united states. the power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different states, that the expediency of it seems not likely to be drawn into question. the power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each state shall be proved, and the effect they shall have in other states, is an evident and valuable improvement on the clause relating to this subject in the articles of confederation. the meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. the power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous states, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction. the power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency. nothing which tends to facilitate the intercourse between the states can be deemed unworthy of the public care. publius federalist no. 43 the same subject continued (the powers conferred by the constitution further considered) for the independent journal. wednesday, january 23, 1788 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 less-informed part of the community. they have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. they very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. the prohibition with respect to titles of nobility is copied from the articles of confederation and needs no comment. 2. "no state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any state on imports or exports, shall be for the use of the treasury of the united states; and all such laws shall be subject to the revision and control of the congress. no state shall, without the consent of congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay." the restraint on the power of the states over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. it is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the states a reasonable discretion in providing for the conveniency of their imports and exports, and to the united states a reasonable check against the abuse of this discretion. the remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. the sixth and last class consists of the several powers and provisions by which efficacy is given to all the rest. 1. of these the first is, the "power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or officer thereof." few parts of the constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. without the substance of this power, the whole constitution would be a dead letter. those who object to the article, therefore, as a part of the constitution, can only mean that the form of the provision is improper. but have they considered whether a better form could have been substituted? there are four other possible methods which the constitution might have taken on this subject. they might have copied the second article of the existing confederation, which would have prohibited the exercise of any power not expressly delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms "necessary and proper"; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference. had the convention taken the first method of adopting the second article of confederation, it is evident that the new congress would be continually exposed, as their predecessors have been, to the alternative of construing the term "expressly" with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. it would be easy to show, if it were necessary, that no important power, delegated by the articles of confederation, has been or can be executed by congress, without recurring more or less to the doctrine of construction or implication. as the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the constitution by exercising powers indispensably necessary and proper, but, at the same time, not expressly granted. had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same. had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. if, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, not necessary or proper, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. had the constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. no axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the union. if it be asked what is to be the consequence, in case the congress shall misconstrue this part of the constitution, and exercise powers not warranted by its true meaning, i answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the state legislatures should violate the irrespective constitutional authorities. in the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. the truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the state legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. there being no such intermediate body between the state legislatures and the people interested in watching the conduct of the former, violations of the state constitutions are more likely to remain unnoticed and unredressed. 2. "this constitution and the laws of the united states which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the united states, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." the indiscreet zeal of the adversaries to the constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. to be fully sensible of this, we need only suppose for a moment that the supremacy of the state constitutions had been left complete by a saving clause in their favor. in the first place, as these constitutions invest the state legislatures with absolute sovereignty, in all cases not excepted by the existing articles of confederation, all the authorities contained in the proposed constitution, so far as they exceed those enumerated in the confederation, would have been annulled, and the new congress would have been reduced to the same impotent condition with their predecessors. in the next place, as the constitutions of some of the states do not even expressly and fully recognize the existing powers of the confederacy, an express saving of the supremacy of the former would, in such states, have brought into question every power contained in the proposed constitution. in the third place, as the constitutions of the states differ much from each other, it might happen that a treaty or national law, of great and equal importance to the states, would interfere with some and not with other constitutions, and would consequently be valid in some of the states, at the same time that it would have no effect in others. in fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members. 3. "the senators and representatives, and the members of the several state legislatures, and all executive and judicial officers, both of the united states and the several states, shall be bound by oath or affirmation to support this constitution." it has been asked why it was thought necessary, that the state magistracy should be bound to support the federal constitution, and unnecessary that a like oath should be imposed on the officers of the united states, in favor of the state constitutions. several reasons might be assigned for the distinction. i content myself with one, which is obvious and conclusive. the members of the federal government will have no agency in carrying the state constitutions into effect. the members and officers of the state governments, on the contrary, will have an essential agency in giving effect to the federal constitution. the election of the president and senate will depend, in all cases, on the legislatures of the several states. and the election of the house of representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the states. 4. among the provisions for giving efficacy to the federal powers might be added those which belong to the executive and judiciary departments: but as these are reserved for particular examination in another place, i pass them over in this. we have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the union. the question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the union shall be established; or, in other words, whether the union itself shall be preserved. publius federalist no. 45 the alleged danger from the powers of the union to the state governments. considered for the independent journal. saturday, january 26, 1788 madison to the people of the state of new york: having shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several states. the adversaries to the plan of the convention, instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular states. but if the union, as has been shown, be essential to the security of the people of america against foreign danger; if it be essential to their security against contentions and wars among the different states; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the union be essential to the happiness of the people of america, is it not preposterous, to urge as an objection to a government, without which the objects of the union cannot be attained, that such a government may derogate from the importance of the governments of the individual states? was, then, the american revolution effected, was the american confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of america should enjoy peace, liberty, and safety, but that the government of the individual states, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? we have heard of the impious doctrine in the old world, that the people were made for kings, not kings for the people. is the same doctrine to be revived in the new, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? it is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. were the plan of the convention adverse to the public happiness, my voice would be, reject the plan. were the union itself inconsistent with the public happiness, it would be, abolish the union. in like manner, as far as the sovereignty of the states cannot be reconciled to the happiness of the people, the voice of every good citizen must be, let the former be sacrificed to the latter. how far the sacrifice is necessary, has been shown. how far the unsacrificed residue will be endangered, is the question before us. several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the state governments. the more i revolve the subject, the more fully i am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale. we have seen, in all the examples of ancient and modern confederacies, the strongest tendency continually betraying itself in the members, to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. although, in most of these examples, the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet, as the states will retain, under the proposed constitution, a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. in the achaean league it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. the lycian confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. yet history does not inform us that either of them ever degenerated, or tended to degenerate, into one consolidated government. on the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities. these cases are the more worthy of our attention, as the external causes by which the component parts were pressed together were much more numerous and powerful than in our case; and consequently less powerful ligaments within would be sufficient to bind the members to the head, and to each other. in the feudal system, we have seen a similar propensity exemplified. notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter, it usually happened that the local sovereigns prevailed in the rivalship for encroachments. had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in europe would at this time consist of as many independent princes as there were formerly feudatory barons. the state governments will have the advantage of the federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other. the state governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. without the intervention of the state legislatures, the president of the united states cannot be elected at all. they must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. the senate will be elected absolutely and exclusively by the state legislatures. even the house of representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the state legislatures. thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the state governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. on the other side, the component parts of the state governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members. the number of individuals employed under the constitution of the united states will be much smaller than the number employed under the particular states. there will consequently be less of personal influence on the side of the former than of the latter. the members of the legislative, executive, and judiciary departments of thirteen and more states, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. compare the members of the three great departments of the thirteen states, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, i may add, of possibility, and in this view alone, we may pronounce the advantage of the states to be decisive. if the federal government is to have collectors of revenue, the state governments will have theirs also. and as those of the former will be principally on the seacoast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side. it is true, that the confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the states; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the states to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the union, will generally be made by the officers, and according to the rules, appointed by the several states. indeed it is extremely probable, that in other instances, particularly in the organization of the judicial power, the officers of the states will be clothed with the correspondent authority of the union. should it happen, however, that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not bear a comparison with that of the multitude of state officers in the opposite scale. within every district to which a federal collector would be allotted, there would not be less than thirty or forty, or even more, officers of different descriptions, and many of them persons of character and weight, whose influence would lie on the side of the state. the powers delegated by the proposed constitution to the federal government, are few and defined. those which are to remain in the state governments are numerous and indefinite. the former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. the powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state. the operations of the federal government will be most extensive and important in times of war and danger; those of the state governments, in times of peace and security. as the former periods will probably bear a small proportion to the latter, the state governments will here enjoy another advantage over the federal government. the more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular states. if the new constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of new powers to the union, than in the invigoration of its original powers. the regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. the powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing congress by the articles of confederation. the proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. the change relating to taxation may be regarded as the most important; and yet the present congress have as complete authority to require of the states indefinite supplies of money for the common defense and general welfare, as the future congress will have to require them of individual citizens; and the latter will be no more bound than the states themselves have been, to pay the quotas respectively taxed on them. had the states complied punctually with the articles of confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion, that the state governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. to maintain that such an event would have ensued, would be to say at once, that the existence of the state governments is incompatible with any system whatever that accomplishes the essential 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 prerogatives 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 uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the states should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. extravagant as the supposition is, let it however be made. let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the state governments, with the people on their side, would be able to repel the danger. the highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. this proportion would not yield, in the united states, an army of more than twenty-five or thirty thousand men. to these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. it may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. those who are best acquainted with the last successful resistance of this country against the british arms, will be most inclined to deny the possibility of it. besides the advantage of being armed, which the americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. notwithstanding the military establishments in the several kingdoms of europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. and it is not certain, that with this aid alone they would not be able to shake off their yokes. but were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in europe would be speedily overturned in spite of the legions which surround it. let us not insult the free and gallant citizens of america with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. the argument under the present head may be put into a very concise form, which appears altogether conclusive. either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. on the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. on the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the state governments, who will be supported by the people. on summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual states, as they are indispensably necessary to accomplish the purposes of the union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the state governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them. publius federalist no. 47 the particular structure of the new government and the distribution of power among its different parts. for the independent journal. wednesday, january 30, 1788. madison to the people of the state of new york: having reviewed the general form of the proposed government and the general mass of power allotted to it, i proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts. one of the principal objections inculcated by the more respectable adversaries to the constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. in the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. the several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, 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 council 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 inferior courts, but that the chief magistrate, with his executive council, are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of the legislature; and that all the principal offices, both executive and judiciary, are filled by the same department. the executive prerogative of pardon, also, is in one case vested in the legislative department. the constitution of north carolina, which declares "that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other," refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department. in south carolina, the constitution makes the executive magistracy eligible by the legislative department. it gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the state. in the constitution of georgia, where it is declared "that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other," we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority. even justices of the peace are to be appointed by the legislature. in citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, i wish not to be regarded as an advocate for the particular organizations of the several state governments. i am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. it is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. what i have wished to evince is, that the charge brought against the proposed constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in america. this interesting subject will be resumed in the ensuing paper. publius federalist no. 48 these departments should not be so far separated as to have no constitutional control over each other. from the new york packet. friday, february 1, 1788. madison to the people of the state of new york: it was shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. i shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. it is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. it is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. it will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. after discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. what this security ought to be, is the great problem to be solved. will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? this is the security which appears to have been principally relied on by the compilers of most of the american constitutions. but experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. the legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. the founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. a respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. they seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. in a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. in a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. but in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. the legislative department derives a superiority in our governments from other circumstances. its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. it is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. on the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. i have appealed to our own experience for the truth of what i advance on this subject. were it necessary to verify this experience by particular proofs, they might be multiplied without end. i might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. i might collect vouchers in abundance from the records and archives of every state in the union. but as a more concise, and at the same time equally satisfactory, evidence, i will refer to the example of two states, attested by two unexceptionable authorities. the first example is that of virginia, a state which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. the authority in support of it is mr. jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. in order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting notes on the state of virginia, p. 195. "all the powers of government, legislative, executive, and judiciary, result to the legislative body. the concentrating these in the same hands, is precisely the definition of despotic government. it will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. one hundred and seventy-three despots would surely be as oppressive as one. let those who doubt it, turn their eyes on the republic of venice. as little will it avail us, that they are chosen by ourselves. an elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. for this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. but no barrier was provided between these several powers. the judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. if, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of assembly, which will render them obligatory on the other branches. they have accordingly, in many instances, decided rights which should have been left to judiciary controversy, and the direction of the executive, during the whole time of their session, is becoming habitual and familiar." the other state which i shall take for an example is pennsylvania; and the other authority, the council of censors, which assembled in the years 1783 and 1784. a part of the duty of this body, as marked out by the constitution, was "to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution." in the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings, with the constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances. a great number of laws had been passed, violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature. the constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution. executive powers had been usurped. the salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination. those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. some of them, it will be found, may be imputable to peculiar circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government. it appears, also, that the executive department had not been innocent of frequent breaches of the constitution. there are three observations, however, which ought to be made on this head: first, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by congress or the commander-in-chief; second, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; third, the executive department of pennsylvania is distinguished from that of the other states by the number of members composing it. in this respect, it has as much affinity to a legislative assembly as to an executive council. and being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands. the conclusion which i am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands. publius federalist no. 49 method of guarding against the encroachments of any one department of government by appealing to the people through a convention. for the independent journal. saturday, february 2, 1788. madison to the people of the state of new york: the author of the "notes on the state of virginia," quoted in the last paper, has subjoined to that valuable work the draught of a constitution, which had been prepared in order to be laid before a convention, expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. the plan, like every thing from the same pen, marks a turn of thinking, original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded. one of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present inquiry, ought not to be overlooked. his proposition is, "that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or correcting breaches of it, a convention shall be called for the purpose." as the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. the several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance? there is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. but there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits. in the first place, the provision does not reach the case of a combination of two of the departments against the third. if the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. i do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle, than against the principle itself. in the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. if it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. the reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. when the examples which fortify opinion are ancient as well as numerous, they are known to have a double effect. in a nation of philosophers, this consideration ought to be disregarded. a reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. but a nation of philosophers is as little to be expected as the philosophical race of kings wished for by plato. and in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. the danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of america, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. we are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. the future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended. but the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. we have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. the appeals to the people, therefore, would usually be made by the executive and judiciary departments. but whether made by one side or the other, would each side enjoy equal advantages on the trial? let us view their different situations. the members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. the latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. the former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. the members of the legislative department, on the other hand, are numerous. they are distributed and dwell among the people at large. their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. the nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. with these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. but the legislative party would not only be able to plead their cause most successfully with the people. they would probably be constituted themselves the judges. the same influence which had gained them an election into the legislature, would gain them a seat in the convention. if this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. the convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. they would consequently be parties to the very question to be decided by them. it might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. the usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious coloring. a strong party among themselves might take side with the other branches. the executive power might be in the hands of a peculiar favorite of the people. in such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. but still it could never be expected to turn on the true merits of the question. it would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. it would be connected with persons of distinguished character and extensive influence in the community. it would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. the passions, therefore, not the reason, of the public would sit in judgment. but it is the reason, alone, of the public, that ought to control and regulate the government. the passions ought to be controlled and regulated by the government. we found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. it appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. how far the provisions of a different nature contained in the plan above quoted might be adequate, i do not examine. some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision. publius federalist no. 50 periodical appeals to the people considered from the new york packet. tuesday, february 5, 1788. madison to the people of the state of new york: it may be contended, perhaps, that instead of occasional appeals to the people, which are liable to the objections urged against them, periodical appeals are the proper and adequate means of preventing and correcting infractions of the constitution. it will be attended to, that in the examination of these expedients, i confine myself to their aptitude for enforcing the constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for altering the constitution itself. in the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge. if the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. if the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. in the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? in the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. and in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated. the scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the states. one of the objects of the council of censors which met in pennsylvania in 1783 and 1784, was, as we have seen, to inquire, "whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other." this important and novel experiment in politics merits, in several points of view, very particular attention. in some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. but as applied to the case under consideration, it involves some facts, which i venture to remark, as a complete and satisfactory illustration of the reasoning which i have employed. first. it appears, from the names of the gentlemen who composed the council, that some, at least, of its most active members had also been active and leading characters in the parties which pre-existed in the state. second. it appears that the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. two of the members had been vice-presidents of the state, and several other members of the executive council, within the seven preceding years. one of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period. third. every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. throughout the continuance of the council, it was split into two fixed and violent parties. the fact is acknowledged and lamented by themselves. had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. in all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, passion, not reason, must have presided over their decisions. when men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. when they are governed by a common passion, their opinions, if they are so to be called, will be the same. fourth. it is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places. fifth. i have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. it even appears, if i mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest. this censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. this conclusion cannot be invalidated by alleging that the state in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. is it to be presumed, that at any future septennial epoch the same state will be free from parties? is it to be presumed that any other state, at the same or any other given period, will be exempt from them? such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. the important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices. publius federalist no. 51 the structure of the government must furnish the proper checks and balances between the different departments. for the independent journal. wednesday, february 6, 1788. madison to the people of the state of new york: to what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution? the only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. without presuming to undertake a full development of this important idea, i will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. in order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. some difficulties, however, and some additional expense would attend the execution of it. some deviations, therefore, from the principle must be admitted. in the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. it is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. but the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. the provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. ambition must be made to counteract ambition. the interest of the man must be connected with the constitutional rights of the place. it may be a reflection on human nature, that such devices should be necessary to control the abuses of government. but what is government itself, but the greatest of all reflections on human nature? if men were angels, no government would be necessary. if angels were to govern men, neither external nor internal controls on government would be necessary. in framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. a dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. this policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. we see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other--that the private interest of every individual may be a sentinel over the public rights. these inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state. but it is not possible to give to each department an equal power of self-defense. in republican government, the legislative authority necessarily predominates. the remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. it may even be necessary to guard against dangerous encroachments by still further precautions. as the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. an absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. but perhaps it would be neither altogether safe nor alone sufficient. on ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. may not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? if the principles on which these observations are founded be just, as i persuade myself they are, and they be applied as a criterion to the several state constitutions, and to the federal constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. there are, moreover, two considerations particularly applicable to the federal system of america, which place that system in a very interesting point of view. first. in a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. in the compound republic of america, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. hence a double security arises to the rights of the people. the different governments will control each other, at the same time that each will be controlled by itself. second. it is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. different interests necessarily exist in different classes of citizens. if a majority be united by a common interest, the rights of the minority will be insecure. there are but two methods of providing against this evil: the one by creating a will in the community independent of the majority--that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. the first method prevails in all governments possessing an hereditary or self-appointed authority. this, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. the second method will be exemplified in the federal republic of the united states. whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. in a free government the security for civil rights must be the same as that for religious rights. it consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. the degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. this view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the union may be formed into more circumscribed confederacies, or states oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. justice is the end of government. it is the end of civil society. it ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. in a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. it can be little doubted that if the state of rhode island was separated from the confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. in the extended republic of the united states, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. it is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. and happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle. publius federalist no. 52 the house of representatives from the new york packet. friday, february 8, 1788. madison to the people of the state of new york: from the more general inquiries pursued in the four last papers, i pass on to a more particular examination of the several parts of the government. i shall begin with the house of representatives. the first view to be taken of this part of the government relates to the qualifications of the electors and the elected. those of the former are to be the same with those of the electors of the most numerous branch of the state legislatures. the definition of the right of suffrage is very justly regarded as a fundamental article of republican government. it was incumbent on the convention, therefore, to define and establish this right in the constitution. to have left it open for the occasional regulation of the congress, would have been improper for the reason just mentioned. to have submitted it to the legislative discretion of the states, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the state governments that branch of the federal government which ought to be dependent on the people alone. to have reduced the different qualifications in the different states to one uniform rule, would probably have been as dissatisfactory to some of the states as it would have been difficult to the convention. the provision made by the convention appears, therefore, to be the best that lay within their option. it must be satisfactory to every state, because it is conformable to the standard already established, or which may be established, by the state itself. it will be safe to the united states, because, being fixed by the state constitutions, it is not alterable by the state governments, and it cannot be feared that the people of the states will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal constitution. the qualifications of the elected, being less carefully and properly defined by the state constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. a representative of the united states must be of the age of twenty-five years; must have been seven years a citizen of the united states; must, at the time of his election, be an inhabitant of the state he is to represent; and, during the time of his service, must be in no office under the united states. under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith. the term for which the representatives are to be elected falls under a second view which may be taken of this branch. in order to decide on the propriety of this article, two questions must be considered: first, whether biennial elections will, in this case, be safe; secondly, whether they be necessary or useful. first. as it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. but what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation, and must depend on a variety of circumstances with which it may be connected. let us consult experience, the guide that ought always to be followed whenever it can be found. the scheme of representation, as a substitute for a meeting of the citizens in person, being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples. and even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known, and which bear the greatest analogy to our particular case. the first to which this character ought to be applied, is the house of commons in great britain. the history of this branch of the english constitution, anterior to the date of magna charta, is too obscure to yield instruction. the very existence of it has been made a question among political antiquaries. the earliest records of subsequent date prove that parliaments were to sit only every year; not that they were to be elected every year. and even these annual sessions were left so much at the discretion of the monarch, that, under various pretexts, very long and dangerous intermissions were often contrived by royal ambition. to remedy this grievance, it was provided by a statute in the reign of charles ii, that the intermissions should not be protracted beyond a period of three years. on the accession of william iii, when a revolution took place in the government, the subject was still more seriously resumed, and it was declared to be among the fundamental rights of the people that parliaments ought to be held frequently. by another statute, which passed a few years later in the same reign, the term "frequently," which had alluded to the triennial period settled in the time of charles ii, is reduced to a precise meaning, it being expressly enacted that a new parliament shall be called within three years after the termination of the former. the last change, from three to seven years, is well known to have been introduced pretty early in the present century, under an alarm for the hanoverian succession. from these facts it appears that the greatest frequency of elections which has been deemed necessary in that kingdom, for binding the representatives to their constituents, does not exceed a triennial return of them. and if we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that a reduction of the period from seven to three years, with the other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us that biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the house of representatives on their constituents. elections in ireland, till of late, were regulated entirely by the discretion of the crown, and were seldom repeated, except on the accession of a new prince, or some other contingent event. the parliament which commenced with george ii. was continued throughout his whole reign, a period of about thirty-five years. the only dependence of the representatives on the people consisted in the right of the latter to supply occasional vacancies by the election of new members, and in the chance of some event which might produce a general new election. the ability also of the irish parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled by the control of the crown over the subjects of their deliberation. of late these shackles, if i mistake not, have been broken; and octennial parliaments have besides been established. what effect may be produced by this partial reform, must be left to further experience. the example of ireland, from this view of it, can throw but little light on the subject. as far as we can draw any conclusion from it, it must be that if the people of that country have been able under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty, which might depend on a due connection between their representatives and themselves. let us bring our inquiries nearer home. the example of these states, when british colonies, claims particular attention, at the same time that it is so well known as to require little to be said on it. the principle of representation, in one branch of the legislature at least, was established in all of them. but the periods of election were different. they varied from one to seven years. have we any reason to infer, from the spirit and conduct of the representatives of the people, prior to the revolution, that biennial elections would have been dangerous to the public liberties? the spirit which everywhere displayed itself at the commencement of the struggle, and which vanquished the obstacles to independence, is the best of proofs that a sufficient portion of liberty had been everywhere enjoyed to inspire both a sense of its worth and a zeal for its proper enlargement this remark holds good, as well with regard to the then colonies whose elections were least frequent, as to those whose elections were most frequent virginia was the colony which stood first in resisting the parliamentary usurpations of great britain; it was the first also in espousing, by public act, the resolution of independence. in virginia, nevertheless, if i have not been misinformed, elections under the former government were septennial. this particular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances was probably accidental; and still less of any advantage in septennial elections, for when compared with a greater frequency they are inadmissible; but merely as a proof, and i conceive it to be a very substantial proof, that the liberties of the people can be in no danger from biennial elections. the conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances. the first is, that the federal legislature will possess a part only of that supreme legislative authority which is vested completely in the british parliament; and which, with a few exceptions, was exercised by the colonial assemblies and the irish legislature. it is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted. in the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not. and in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the house of representatives from their duty to the people, and the means of influence over the popular branch possessed by the other branches of the government above cited. with less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other. publius federalist no. 53 the same subject continued (the house of representatives) for the independent journal. saturday, february 9, 1788. madison to the people of the state of new york: i shall here, perhaps, be reminded of a current observation, "that where annual elections end, tyranny begins." if it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is not less true, that when once established, they are often applied to cases to which the reason of them does not extend. i need not look for a proof beyond the case before us. what is the reason on which this proverbial observation is founded? no man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons, and the period within which human virtue can bear the temptations of power. happily for mankind, liberty is not, in this respect, confined to any single point of time; but lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society. the election of magistrates might be, if it were found expedient, as in some instances it actually has been, daily, weekly, or monthly, as well as annual; and if circumstances may require a deviation from the rule on one side, why not also on the other side? turning our attention to the periods established among ourselves, for the election of the most numerous branches of the state legislatures, we find them by no means coinciding any more in this instance, than in the elections of other civil magistrates. in connecticut and rhode island, the periods are half-yearly. in the other states, south carolina excepted, they are annual. in south carolina they are biennial--as is proposed in the federal government. here is a difference, as four to one, between the longest and shortest periods; and yet it would be not easy to show, that connecticut or rhode island is better governed, or enjoys a greater share of rational liberty, than south carolina; or that either the one or the other of these states is distinguished in these respects, and by these causes, from the states whose elections are different from both. in searching for the grounds of this doctrine, i can discover but one, and that is wholly inapplicable to our case. the important distinction so well understood in america, between a constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. even in great britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the constitution, it is maintained that the authority of the parliament is transcendent and uncontrollable, as well with regard to the constitution, as the ordinary objects of legislative provision. they have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental articles of the government. they have in particular, on several occasions, changed the period of election; and, on the last occasion, not only introduced septennial in place of triennial elections, but by the same act, continued themselves in place four years beyond the term for which they were elected by the people. an attention to these dangerous practices has produced a very natural alarm in the votaries of free government, of which frequency of elections is the corner-stone; and has led them to seek for some security to liberty, against the danger to which it is exposed. where no constitution, paramount to the government, either existed or could be obtained, no constitutional security, similar to that established in the united states, was to be attempted. some other security, therefore, was to be sought for; and what better security would the case admit, than that of selecting and appealing to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions? the most simple and familiar portion of time, applicable to the subject was that of a year; and hence the doctrine has been inculcated by a laudable zeal, to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections. but what necessity can there be of applying this expedient to a government limited, as the federal government will be, by the authority of a paramount constitution? or who will pretend that the liberties of the people of america will not be more secure under biennial elections, unalterably fixed by such a constitution, than those of any other nation would be, where elections were annual, or even more frequent, but subject to alterations by the ordinary power of the government? the second question stated is, whether biennial elections be necessary or useful. the propriety of answering this question in the affirmative will appear from several very obvious considerations. no man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate. a part of this knowledge may be acquired by means of information which lie within the compass of men in private as well as public stations. another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it. the period of service, ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to the due performance of the service. the period of legislative service established in most of the states for the more numerous branch is, as we have seen, one year. the question then may be put into this simple form: does the period of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the knowledge requisite for state legislation? the very statement of the question, in this form, suggests the answer that ought to be given to it. in a single state, the requisite knowledge relates to the existing laws which are uniform throughout the state, and with which all the citizens are more or less conversant; and to the general affairs of the state, which lie within a small compass, are not very diversified, and occupy much of the attention and conversation of every class of people. the great theatre of the united states presents a very different scene. the laws are so far from being uniform, that they vary in every state; whilst the public affairs of the union are spread throughout a very extensive region, and are extremely diversified by the local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils to which a knowledge of them will be brought by the representatives of every part of the empire. yet some knowledge of the affairs, and even of the laws, of all the states, ought to be possessed by the members from each of the states. how can foreign trade be properly regulated by uniform laws, without some acquaintance with the commerce, the ports, the usages, and the regulations of the different states? how can the trade between the different states be duly regulated, without some knowledge of their relative situations in these and other respects? how can taxes be judiciously imposed and effectually collected, if they be not accommodated to the different laws and local circumstances relating to these objects in the different states? how can uniform regulations for the militia be duly provided, without a similar knowledge of many internal circumstances by which the states are distinguished from each other? these are the principal objects of federal legislation, and suggest most forcibly the extensive information which the representatives ought to acquire. the other interior objects will require a proportional degree of information with regard to them. it is true that all these difficulties will, by degrees, be very much diminished. the most laborious task will be the proper inauguration of the government and the primeval formation of a federal code. improvements on the first draughts will every year become both easier and fewer. past transactions of the government will be a ready and accurate source of information to new members. the affairs of the union will become more and more objects of curiosity and conversation among the citizens at large. and the increased intercourse among those of different states will contribute not a little to diffuse a mutual knowledge of their affairs, as this again will contribute to a general assimilation of their manners and laws. but with all these abatements, the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single state, as to justify the longer period of service assigned to those who are to transact it. a branch of knowledge which belongs to the acquirements of a federal representative, and which has not been mentioned is that of foreign affairs. in regulating our own commerce he ought to be not only acquainted with the treaties between the united states and other nations, but also with the commercial policy and laws of other nations. he ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government. and although the house of representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation. some portion of this knowledge may, no doubt, be acquired in a man's closet; but some of it also can only be derived from the public sources of information; and all of it will be acquired to best effect by a practical attention to the subject during the period of actual service in the legislature. there are other considerations, of less importance, perhaps, but which are not unworthy of notice. the distance which many of the representatives will be obliged to travel, and the arrangements rendered necessary by that circumstance, might be much more serious objections with fit men to this service, if limited to a single year, than if extended to two years. no argument can be drawn on this subject, from the case of the delegates to the existing congress. they are elected annually, it is true; but their re-election is considered by the legislative assemblies almost as a matter of course. the election of the representatives by the people would not be governed by the same principle. a few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections, become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to avail themselves of those advantages. the greater the proportion of new members, and the less the information of the bulk of the members the more apt will they be to fall into the snares that may be laid for them. this remark is no less applicable to the relation which will subsist between the house of representatives and the senate. it is an inconvenience mingled with the advantages of our frequent elections even in single states, where they are large, and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. if a return can be obtained, no matter by what unlawful means, the irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes. hence, a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns. were elections for the federal legislature to be annual, this practice might become a very serious abuse, particularly in the more distant states. each house is, as it necessarily must be, the judge of the elections, qualifications, and returns of its members; and whatever improvements may be suggested by experience, for simplifying and accelerating the process in disputed cases, so great a portion of a year would unavoidably elapse, before an illegitimate member could be dispossessed of his seat, that the prospect of such an event would be little check to unfair and illicit means of obtaining a seat. all these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people. publius federalist no. 54 the apportionment of members among the states from the new york packet. tuesday, february 12, 1788. madison to the people of the state of new york: the next view which i shall take of the house of representatives relates to the appointment of its members to the several states which is to be determined by the same rule with that of direct taxes. it is not contended that the number of people in each state ought not to be the standard for regulating the proportion of those who are to represent the people of each state. the establishment of the same rule for the appointment of taxes, will probably be as little contested; though the rule itself in this case, is by no means founded on the same principle. in the former case, the rule is understood to refer to the personal rights of the people, with which it has a natural and universal connection. in the latter, it has reference to the proportion of wealth, of which it is in no case a precise measure, and in ordinary cases a very unfit one. but notwithstanding the imperfection of the rule as applied to the relative wealth and contributions of the states, it is evidently the least objectionable among the practicable rules, and had too recently obtained the general sanction of america, not to have found a ready preference with the convention. all this is admitted, it will perhaps be said; but does it follow, from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation? slaves are considered as property, not as persons. they ought therefore to be comprehended in estimates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons. this is the objection, as i understand it, stated in its full force. i shall be equally candid in stating the reasoning which may be offered on the opposite side. "we subscribe to the doctrine," might one of our southern brethren observe, "that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. but we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. the true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. in being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another--the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. in being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others--the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. the federal constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. this is in fact their true character. it is the character bestowed on them by the laws under which they live; and it will not be denied, that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants. "this question may be placed in another light. it is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. would the convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants, when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted? could it be reasonably expected, that the southern states would concur in a system, which considered their slaves in some degree as men, when burdens were to be imposed, but refused to consider them in the same light, when advantages were to be conferred? might not some surprise also be expressed, that those who reproach the southern states with the barbarous policy of considering as property a part of their human brethren, should themselves contend, that the government to which all the states are to be parties, ought to consider this unfortunate race more completely in the unnatural light of property, than the very laws of which they complain? "it may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the states possessing them. they neither vote themselves nor increase the votes of their masters. upon what principle, then, ought they to be taken into the federal estimate of representation? in rejecting them altogether, the constitution would, in this respect, have followed the very laws which have been appealed to as the proper guide. "this objection is repelled by a single observation. it is a fundamental principle of the proposed constitution, that as the aggregate number of representatives allotted to the several states is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each state is to be exercised by such part of the inhabitants as the state itself may designate. the qualifications on which the right of suffrage depend are not, perhaps, the same in any two states. in some of the states the difference is very material. in every state, a certain proportion of inhabitants are deprived of this right by the constitution of the state, who will be included in the census by which the federal constitution apportions the representatives. in this point of view the southern states might retort the complaint, by insisting that the principle laid down by the convention required that no regard should be had to the policy of particular states towards their own inhabitants; and consequently, that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other states, are not admitted to all the rights of citizens. a rigorous adherence, however, to this principle, is waived by those who would be gainers by it. all that they ask is that equal moderation be shown on the other side. let the case of the slaves be considered, as it is in truth, a peculiar one. let the compromising expedient of the constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the slave as divested of two fifths of the man. "after all, may not another ground be taken on which this article of the constitution will admit of a still more ready defense? we have hitherto proceeded on the idea that representation related to persons only, and not at all to property. but is it a just idea? government is instituted no less for protection of the property, than of the persons, of individuals. the one as well as the other, therefore, may be considered as represented by those who are charged with the government. upon this principle it is, that in several of the states, and particularly in the state of new york, one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government. in the federal constitution, this policy does not prevail. the rights of property are committed into the same hands with the personal rights. some attention ought, therefore, to be paid to property in the choice of those hands. "for another reason, the votes allowed in the federal legislature to the people of each state, ought to bear some proportion to the comparative wealth of the states. states have not, like individuals, an influence over each other, arising from superior advantages of fortune. if the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation. a state possesses no such influence over other states. it is not probable that the richest state in the confederacy will ever influence the choice of a single representative in any other state. nor will the representatives of the larger and richer states possess any other advantage in the federal legislature, over the representatives of other states, than what may result from their superior number alone. as far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation. the new constitution is, in this respect, materially different from the existing confederation, as well as from that of the united netherlands, and other similar confederacies. in each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union. hence the states, though possessing an equal vote in the public councils, have an unequal influence, corresponding with the unequal importance of these subsequent and voluntary resolutions. under the proposed constitution, the federal acts will take effect without the necessary intervention of the individual states. they will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or smaller state, or a state more or less wealthy or powerful, will have an equal weight and efficacy: in the same manner as the votes individually given in a state legislature, by the representatives of unequal counties or other districts, have each a precise equality of value and effect; or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes." such is the reasoning which an advocate for the southern interests might employ on this subject; and although it may appear to be a little strained in some points, yet, on the whole, i must confess that it fully reconciles me to the scale of representation which the convention have established. in one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. as the accuracy of the census to be obtained by the congress will necessarily depend, in a considerable degree on the disposition, if not on the co-operation, of the states, it is of great importance that the states should feel as little bias as possible, to swell or to reduce the amount of their numbers. were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. were the rule to decide their share of taxation alone, a contrary temptation would prevail. by extending the rule to both objects, the states will have opposite interests, which will control and balance each other, and produce the requisite impartiality. publius federalist no. 55 the total number of the house of representatives for the independent journal. wednesday, february 13, 1788. madison to the people of the state of new york: the number of which the house of representatives is to consist, forms another and a very interesting point of view, under which this branch of the federal legislature may be contemplated. scarce any article, indeed, in the whole constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument with which it has been assailed. the charges exhibited against it are, first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives. in general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature; nor is there any point on which the policy of the several states is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents. passing over the difference between the smallest and largest states, as delaware, whose most numerous branch consists of twenty-one representatives, and massachusetts, where it amounts to between three and four hundred, a very considerable difference is observable among states nearly equal in population. the number of representatives in pennsylvania is not more than one fifth of that in the state last mentioned. new york, whose population is to that of south carolina as six to five, has little more than one third of the number of representatives. as great a disparity prevails between the states of georgia and delaware or rhode island. in pennsylvania, the representatives do not bear a greater proportion to their constituents than of one for every four or five thousand. in rhode island, they bear a proportion of at least one for every thousand. and according to the constitution of georgia, the proportion may be carried to one to every ten electors; and must unavoidably far exceed the proportion in any of the other states. another general remark to be made is, that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. were the representatives in virginia to be regulated by the standard in rhode island, they would, at this time, amount to between four and five hundred; and twenty or thirty years hence, to a thousand. on the other hand, the ratio of pennsylvania, if applied to the state of delaware, would reduce the representative assembly of the latter to seven or eight members. nothing can be more fallacious than to found our political calculations on arithmetical principles. sixty or seventy men may be more properly trusted with a given degree of power than six or seven. but it does not follow that six or seven hundred would be proportionably a better depositary. and if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. the truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. in all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. had every athenian citizen been a socrates, every athenian assembly would still have been a mob. it is necessary also to recollect here the observations which were applied to the case of biennial elections. for the same reason that the limited powers of the congress, and the control of the state legislatures, justify less frequent elections than the public safely might otherwise require, the members of the congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies. with these general ideas in our mind, let us weigh the objections which have been stated against the number of members proposed for the house of representatives. it is said, in the first place, that so small a number cannot be safely trusted with so much power. the number of which this branch of the legislature is to consist, at the outset of the government, will be sixty-five. 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 all be american citizens, cannot possibly be sources of danger. the only means, then, which they can possess, will be in the dispensation of appointments. is it here that suspicion rests her charge? sometimes we are told that this fund of corruption is to be exhausted by the president in subduing the virtue of the senate. now, the fidelity of the other house is to be the victim. the improbability of such a mercenary and perfidious combination of the several members of government, standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. but, fortunately, the constitution has provided a still further safeguard. the members of the congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. no offices therefore can be dealt out to the existing members but such as may become vacant by ordinary casualties: and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. the sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. as there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. republican government presupposes the existence of these qualities in a higher degree than any other form. were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another. publius federalist no. 56 the same subject continued (the total number of the house of representatives) for the independent journal. saturday, february 16, 1788. madison to the people of the state of new york: the second charge against the house of representatives is, that it will be too small to possess a due knowledge of the interests of its constituents. as this objection evidently proceeds from a comparison of the proposed number of representatives with the great extent of the united states, the number of their inhabitants, and the diversity of their interests, without taking into view at the same time the circumstances which will distinguish the congress from other legislative bodies, the best answer that can be given to it will be a brief explanation of these peculiarities. it is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. but this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. an ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. in determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority. what are to be the objects of federal legislation? those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia. a proper regulation of commerce requires much information, as has been elsewhere remarked; but as far as this information relates to the laws and local situation of each individual state, a very few representatives would be very sufficient vehicles of it to the federal councils. taxation will consist, in a great measure, of duties which will be involved in the regulation of commerce. so far the preceding remark is applicable to this object. as far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the state may be necessary. but will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the state? divide the largest state into ten or twelve districts, and it will be found that there will be no peculiar local interests in either, which will not be within the knowledge of the representative of the district. besides this source of information, the laws of the state, framed by representatives from every part of it, will be almost of themselves a sufficient guide. in every state there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. a skillful individual in his closet with all the local codes before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral information, and it may be expected that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the states, the more simple objects will be preferred. to be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the state codes, we need only suppose for a moment that this or any other state were divided into a number of parts, each having and exercising within itself a power of local legislation. is it not evident that a degree of local information and preparatory labor would be found in the several volumes of their proceedings, which would very much shorten the labors of the general legislature, and render a much smaller number of members sufficient for it? the federal councils will derive great advantage from another circumstance. the representatives of each state will not only bring with them a considerable knowledge of its laws, and a local knowledge of their respective districts, but will probably in all cases have been members, and may even at the very time be members, of the state legislature, where all the local information and interests of the state are assembled, and from whence they may easily be conveyed by a very few hands into the legislature of the united states. (the observations made on the subject of taxation apply with greater force to the case of the militia. for however different the rules of discipline may be in different states, they are the same throughout each particular state; and depend on circumstances which can differ but little in different parts of the same state.)(e1) (with regard to the regulation of the militia, there are scarcely any circumstances in reference to which local knowledge can be said to be necessary. the general face of the country, whether mountainous or level, most fit for the operations of infantry or cavalry, is almost the only consideration of this nature that can occur. the art of war teaches general principles of organization, movement, and discipline, which apply universally.)(e1) the attentive reader will discern that the reasoning here used, to prove the sufficiency of a moderate number of representatives, does not in any respect contradict what was urged on another occasion with regard to the extensive information which the representatives ought to possess, and the time that might be necessary for acquiring it. this information, so far as it may relate to local objects, is rendered necessary and difficult, not by a difference of laws and local circumstances within a single state, but of those among different states. taking each state by itself, its laws are the same, and its interests but little diversified. a few men, therefore, will possess all the knowledge requisite for a proper representation of them. were the interests and affairs of each individual state perfectly simple and uniform, a knowledge of them in one part would involve a knowledge of them in every other, and the whole state might be competently represented by a single member taken from any part of it. on a comparison of the different states together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legislation, with all of which the federal representatives ought to have some acquaintance. whilst a few representatives, therefore, from each state, may bring with them a due knowledge of their own state, every representative will have much information to acquire concerning all the other states. the changes of time, as was formerly remarked, on the comparative situation of the different states, will have an assimilating effect. the effect of time on the internal affairs of the states, taken singly, will be just the contrary. at present some of the states are little more than a society of husbandmen. few of them have made much progress in those branches of industry which give a variety and complexity to the affairs of a nation. these, however, will in all of them be the fruits of a more advanced population, and will require, on the part of each state, a fuller representation. the foresight of the convention has accordingly taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government. the experience of great britain, which presents to mankind so many political lessons, both of the monitory and exemplary kind, and which has been frequently consulted in the course of these inquiries, corroborates the result of the reflections which we have just made. the number of inhabitants in the two kingdoms of england and scotland cannot be stated at less than eight millions. the representatives of these eight millions in the house of commons amount to five hundred and fifty-eight. of this number, one ninth are elected by three hundred and sixty-four persons, and one half, by five thousand seven hundred and twenty-three persons.(1) it cannot be supposed that the half thus elected, and who do not even reside among the people at large, can add any thing either to the security of the people against the government, or to the knowledge of their circumstances and interests in the legislative councils. on the contrary, it is notorious, that they are more frequently the representatives and instruments of the executive magistrate, than the guardians and advocates of the popular rights. they might therefore, with great propriety, be considered as something more than a mere deduction from the real representatives of the nation. we will, however, consider them in this light alone, and will not extend the deduction to a considerable number of others, who do not reside among their constitutents, are very faintly connected with them, and have very little particular knowledge of their affairs. with all these concessions, two hundred and seventy-nine persons only will be the depository of the safety, interest, and happiness of eight millions that is to say, there will be one representative only to maintain the rights and explain the situation of twenty-eight thousand six hundred and seventy constitutents, in an assembly exposed to the whole force of executive influence, and extending its authority to every object of legislation within a nation whose affairs are in the highest degree diversified and complicated. yet it is very certain, not only that a valuable portion of freedom has been preserved under all these circumstances, but that the defects in the british code are chargeable, in a very small proportion, on the ignorance of the legislature concerning the circumstances of the people. allowing to this case the weight which is due to it, and comparing it with that of the house of representatives as above explained it seems to give the fullest assurance, that a representative for every thirty thousand inhabitants will render the latter both a safe and competent guardian of the interests which will be confided to it. publius 1. burgh's "political disquisitions." e1. two versions of this paragraph appear in different editions. federalist no. 57 the alleged tendency of the new plan to elevate the few at the expense of the many considered in connection with representation. from the new york packet. tuesday, february 19, 1788. madison to the people of the state of new york: the third charge against the house of representatives is, that it will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few. of all the objections which have been framed against the federal constitution, this is perhaps the most extraordinary. whilst the objection itself is levelled against a pretended oligarchy, the principle of it strikes at the very root of republican government. the aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. the elective mode of obtaining rulers is the characteristic policy of republican government. the means relied on in this form of government for preventing their degeneracy are numerous and various. the most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people. let me now ask what circumstance there is in the constitution of the house of representatives that violates the principles of republican government, or favors the elevation of the few on the ruins of the many? let me ask whether every circumstance is not, on the contrary, strictly conformable to these principles, and scrupulously impartial to the rights and pretensions of every class and description of citizens? who are to be the electors of the federal representatives? not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. the electors are to be the great body of the people of the united states. they are to be the same who exercise the right in every state of electing the corresponding branch of the legislature of the state. who are to be the objects of popular choice? every citizen whose merit may recommend him to the esteem and confidence of his country. no qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people. if we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents. in the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements. in the second place, they will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents. there is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns. ingratitude is a common topic of declamation against human nature; and it must be confessed that instances of it are but too frequent and flagrant, both in public and in private life. but the universal and extreme indignation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment. in the third place, those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature. his pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preservation of the favor, than from innovations in the government subversive of the authority of the people. all these securities, however, would be found very insufficient without the restraint of frequent elections. hence, in the fourth place, the house of representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it. i will add, as a fifth circumstance in the situation of the house of representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. this has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. it creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. if it be asked, what is to restrain the house of representatives from making legal discriminations in favor of themselves and a particular class of the society? i answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of america--a spirit which nourishes freedom, and in return is nourished by it. if this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty. such will be the relation between the house of representatives and their constituents. duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people. it is possible that these may all be insufficient to control the caprice and wickedness of man. but are they not all that government will admit, and that human prudence can devise? are they not the genuine and the characteristic means by which republican government provides for the liberty and happiness of the people? are they not the identical means on which every state government in the union relies for the attainment of these important ends? what then are we to understand by the objection which this paper has combated? what are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it; who pretend to be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and infallibly betray the trust committed to them? were the objection to be read by one who had not seen the mode prescribed by the constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least that the mode prescribed by the state constitutions was in some respect or other, very grossly departed from. we have seen how far such a supposition would err, as to the two first points. nor would it, in fact, be less erroneous as to the last. the only difference discoverable between the two cases is, that each representative of the united states will be elected by five or six thousand citizens; whilst in the individual states, the election of a representative is left to about as many hundreds. will it be pretended that this difference is sufficient to justify an attachment to the state governments, and an abhorrence to the federal government? if this be the point on which the objection turns, it deserves to be examined. is it supported by reason? this cannot be said, without maintaining that five or six thousand citizens are less capable of choosing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. reason, on the contrary, assures us, that as in so great a number a fit representative would be most likely to be found, so the choice would be less likely to be diverted from him by the intrigues of the ambitious or the ambitious or the bribes of the rich. is the consequence from this doctrine admissible? if we say that five or six hundred citizens are as many as can jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public servants, in every instance where the administration of the government does not require as many of them as will amount to one for that number of citizens? is the doctrine warranted by facts? it was shown in the last paper, that the real representation in the british house of commons very little exceeds the proportion of one for every thirty thousand inhabitants. besides a variety of powerful causes not existing here, and which favor in that country the pretensions of rank and wealth, no person is eligible as a representative of a county, unless he possess real estate of the clear value of six hundred pounds sterling per year; nor of a city or borough, unless he possess a like estate of half that annual value. to this qualification on the part of the county representatives is added another on the part of the county electors, which restrains the right of suffrage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money. notwithstanding these unfavorable circumstances, and notwithstanding some very unequal laws in the british code, it cannot be said that the representatives of the nation have elevated the few on the ruins of the many. but we need not resort to foreign experience on this subject. our own is explicit and decisive. the districts in new hampshire in which the senators are chosen immediately by the people, are nearly as large as will be necessary for her representatives in the congress. those of massachusetts are larger than will be necessary for that purpose; and those of new york still more so. in the last state the members of assembly for the cities and counties of new york and albany are elected by very nearly as many voters as will be entitled to a representative in the congress, calculating on the number of sixty-five representatives only. it makes no difference that in these senatorial districts and counties a number of representatives are voted for by each elector at the same time. if the same electors at the same time are capable of choosing four or five representatives, they cannot be incapable of choosing one. pennsylvania is an additional example. some of her counties, which elect her state representatives, are almost as large as her districts will be by which her federal representatives will be elected. the city of philadelphia is supposed to contain between fifty and sixty thousand souls. it will therefore form nearly two districts for the choice of federal representatives. it forms, however, but one county, in which every elector votes for each of its representatives in the state legislature. and what may appear to be still more directly to our purpose, the whole city actually elects a single member for the executive council. this is the case in all the other counties of the state. are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the federal government under consideration? has it appeared on trial that the senators of new hampshire, massachusetts, and new york, or the executive council of pennsylvania, or the members of the assembly in the two last states, have betrayed any peculiar disposition to sacrifice the many to the few, or are in any respect less worthy of their places than the representatives and magistrates appointed in other states by very small divisions of the people? but there are cases of a stronger complexion than any which i have yet quoted. one branch of the legislature of connecticut is so constituted that each member of it is elected by the whole state. so is the governor of that state, of massachusetts, and of this state, and the president of new hampshire. i leave every man to decide whether the result of any one of these experiments can be said to countenance a suspicion, that a diffusive mode of choosing representatives of the people tends to elevate traitors and to undermine the public liberty. publius federalist no. 58 objection that the number of members will not be augmented as the progress of population demands. considered for the independent journal wednesday, february 20, 1788. madison to the people of the state of new york: the remaining charge against the house of representatives, which i am to examine, is grounded on a supposition that the number of members will not be augmented from time to time, as the progress of population may demand. it has been admitted, that this objection, if well supported, would have great weight. the following observations will show that, like most other objections against the constitution, it can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld. 1. those who urge the objection seem not to have recollected that the federal constitution will not suffer by a comparison with the state constitutions, in the security provided for a gradual augmentation of the number of representatives. the number which is to prevail in the first instance is declared to be temporary. its duration is limited to the short term of three years. within every successive term of ten years a census of inhabitants is to be repeated. the unequivocal objects of these regulations are, first, to readjust, from time to time, the apportionment of representatives to the number of inhabitants, under the single exception that each state shall have one representative at least; secondly, to augment the number of representatives at the same periods, under the sole limitation that the whole number shall not exceed one for every thirty thousand inhabitants. if we review the constitutions of the several states, we shall find that some of them contain no determinate regulations on this subject, that others correspond pretty much on this point with the federal constitution, and that the most effectual security in any of them is resolvable into a mere directory provision. 2. as far as experience has taken place on this subject, a gradual increase of representatives under the state constitutions has at least kept pace with that of the constituents, and it appears that the former have been as ready to concur in such measures as the latter have been to call for them. 3. there is a peculiarity in the federal constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. the peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the states: in the former, consequently, the larger states will have most weight; in the latter, the advantage will be in favor of the smaller states. from this circumstance it may with certainty be inferred that the larger states will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. and it so happens that four only of the largest will have a majority of the whole votes in the house of representatives. should the representatives or people, therefore, of the smaller states oppose at any time a reasonable addition of members, a coalition of a very few states will be sufficient to overrule the opposition; a coalition which, notwithstanding the rivalship and local prejudices which might prevent it on ordinary occasions, would not fail to take place, when not merely prompted by common interest, but justified by equity and the principles of the constitution. it may be alleged, perhaps, that the senate would be prompted by like motives to an adverse coalition; and as their concurrence would be indispensable, the just and constitutional views of the other branch might be defeated. this is the difficulty which has probably created the most serious apprehensions in the jealous friends of a numerous representation. fortunately it is among the difficulties which, existing only in appearance, vanish on a close and accurate inspection. the following reflections will, if i mistake not, be admitted to be conclusive and satisfactory on this point. notwithstanding the equal authority which will subsist between the two houses on all legislative subjects, except the originating of money bills, it cannot be doubted that the house, composed of the greater number of members, when supported by the more powerful states, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses. this advantage must be increased by the consciousness, felt by the same side of being supported in its demands by right, by reason, and by the constitution; and the consciousness, on the opposite side, of contending against the force of all these solemn considerations. it is farther to be considered, that in the gradation between the smallest and largest states, there are several, which, though most likely in general to arrange themselves among the former are too little removed in extent and population from the latter, to second an opposition to their just and legitimate pretensions. hence it is by no means certain that a majority of votes, even in the senate, would be unfriendly to proper augmentations in the number of representatives. it will not be looking too far to add, that the senators from all the new states may be gained over to the just views of the house of representatives, by an expedient too obvious to be overlooked. as these states will, for a great length of time, advance in population with peculiar rapidity, they will be interested in frequent reapportionments of the representatives to the number of inhabitants. the large states, therefore, who will prevail in the house of representatives, will have nothing to do but to make reapportionments and augmentations mutually conditions of each other; and the senators from all the most growing states will be bound to contend for the latter, by the interest which their states will feel in the former. these considerations seem to afford ample security on this subject, and ought alone to satisfy all the doubts and fears which have been indulged with regard to it. admitting, however, that they should all be insufficient to subdue the unjust policy of the smaller states, or their predominant influence in the councils of the senate, a constitutional and infallible resource still remains with the larger states, by which they will be able at all times to accomplish their just purposes. the house of representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. they, in a word, hold the purse--that powerful instrument by which we behold, in the history of the british constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. this power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure. but will not the house of representatives be as much interested as the senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the senate? or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? these questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of dishonorable stagnation in public affairs. to those causes we are to ascribe the continual triumph of the british house of commons over the other branches of the government, whenever the engine of a money bill has been employed. an absolute inflexibility on the side of the latter, although it could not have failed to involve every department of the state in the general confusion, has neither been apprehended nor experienced. the utmost degree of firmness that can be displayed by the federal senate or president, will not be more than equal to a resistance in which they will be supported by constitutional and patriotic principles. in this review of the constitution of the house of representatives, i have passed over the circumstances of economy, which, in the present state of affairs, might have had some effect in lessening the temporary number of representatives, and a disregard of which would probably have been as rich a theme of declamation against the constitution as has been shown by the smallness of the number proposed. i omit also any remarks on the difficulty which might be found, under present circumstances, in engaging in the federal service a large number of such characters as the people will probably elect. one observation, however, i must be permitted to add on this subject as claiming, in my judgment, a very serious attention. it is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. in the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. in the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. now, it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force. in the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a sceptre had been placed in his single hand. on the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. the people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. experience will forever admonish them that, on the contrary, after securing a sufficient number for the purposes of safety, of local information, and of diffusive sympathy with the whole society, they will counteract their own views by every addition to their representatives. the countenance of the government may become more democratic, but the soul that animates it will be more oligarchic. the machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed. as connected with the objection against the number of representatives, may properly be here noticed, that which has been suggested against the number made competent for legislative business. it has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. that some advantages might have resulted from such a precaution, cannot be denied. it might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. but these considerations are outweighed by the inconveniences in the opposite scale. in all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. it would be no longer the majority that would rule: the power would be transferred to the minority. were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in states where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us. publius federalist no. 59 concerning the power of congress to regulate the election of members from the new york packet. friday, february 22, 1788. hamilton to the people of the state of new york: the natural order of the subject leads us to consider, in this place, that provision of the constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members. it is in these words: "the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators."(1) this provision has not only been declaimed against by those who condemn the constitution in the gross, but it has been censured by those who have objected with less latitude and greater moderation; and, in one instance it has been thought exceptionable by a gentleman who has declared himself the advocate of every other part of the system. i am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this. its propriety rests upon the evidence of this plain proposition, that every government ought to contain in itself the means of its own preservation. every just reasoner will, at first sight, approve an adherence to this rule, in the work of the convention; and will disapprove every deviation from it which may not appear to have been dictated by the necessity of incorporating into the work some particular ingredient, with which a rigid conformity to the rule was incompatible. even in this case, though he may acquiesce in the necessity, yet he will not cease to regard and to regret a departure from so fundamental a principle, as a portion of imperfection in the system which may prove the seed of future weakness, and perhaps anarchy. it will not be alleged, that an election law could have been framed and inserted in the constitution, which would have been always applicable to every probable change in the situation of the country; and it will therefore not be denied, that a discretionary power over elections ought to exist somewhere. it will, i presume, be as readily conceded, that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the state legislatures, or primarily in the latter and ultimately in the former. the last mode has, with reason, been preferred by the convention. they have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety. nothing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the state legislatures, would leave the existence of the union entirely at their mercy. they could at any moment annihilate it, by neglecting to provide for the choice of persons to administer its affairs. it is to little purpose to say, that a neglect or omission of this kind would not be likely to take place. the constitutional possibility of the thing, without an equivalent for the risk, is an unanswerable objection. nor has any satisfactory reason been yet assigned for incurring that risk. the extravagant surmises of a distempered jealousy can never be dignified with that character. if we are in a humor to presume abuses of power, it is as fair to presume them on the part of the state governments as on the part of the general government. and as it is more consonant to the rules of a just theory, to trust the union with the care of its own existence, than to transfer that care to any other hands, if abuses of power are to be hazarded on the one side or on the other, it is more rational to hazard them where the power would naturally be placed, than where it would unnaturally be placed. suppose an article had been introduced into the constitution, empowering the united states to regulate the elections for the particular states, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the state governments? the violation of principle, in this case, would have required no comment; and, to an unbiased observer, it will not be less apparent in the project of subjecting the existence of the national government, in a similar respect, to the pleasure of the state governments. an impartial view of the matter cannot fail to result in a conviction, that each, as far as possible, ought to depend on itself for its own preservation. as an objection to this position, it may be remarked that the constitution of the national senate would involve, in its full extent, the danger which it is suggested might flow from an exclusive power in the state legislatures to regulate the federal elections. it may be alleged, that by declining the appointment of senators, they might at any time give a fatal blow to the union; and from this it may be inferred, that as its existence would be thus rendered dependent upon them in so essential a point, there can be no objection to intrusting them with it in the particular case under consideration. the interest of each state, it may be added, to maintain its representation in the national councils, would be a complete security against an abuse of the trust. this argument, though specious, will not, upon examination, be found solid. it is certainly true that the state legislatures, by forbearing the appointment of senators, may destroy the national government. but it will not follow that, because they have a power to do this in one instance, they ought to have it in every other. there are cases in which the pernicious tendency of such a power may be far more decisive, without any motive equally cogent with that which must have regulated the conduct of the convention in respect to the formation of the senate, to recommend their admission into the system. so far as that construction may expose the union to the possibility of injury from the state legislatures, it is an evil; but it is an evil which could not have been avoided without excluding the states, in their political capacities, wholly from a place in the organization of the national government. if this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the state governments of that absolute safeguard which they will enjoy under this provision. but however wise it may have been to have submitted in this instance to an inconvenience, for the attainment of a necessary advantage or a greater good, no inference can be drawn from thence to favor an accumulation of the evil, where no necessity urges, nor any greater good invites. it may be easily discerned also that the national government would run a much greater risk from a power in the state legislatures over the elections of its house of representatives, than from their power of appointing the members of its senate. the senators are to be chosen for the period of six years; there is to be a rotation, by which the seats of a third part of them are to be vacated and replenished every two years; and no state is to be entitled to more than two senators; a quorum of the body is to consist of sixteen members. the joint result of these circumstances would be, that a temporary combination of a few states to intermit the appointment of senators, could neither annul the existence nor impair the activity of the body; and it is not from a general and permanent combination of the states that we can have any thing to fear. the first might proceed from sinister designs in the leading members of a few of the state legislatures; the last would suppose a fixed and rooted disaffection in the great body of the people, which will either never exist at all, or will, in all probability, proceed from an experience of the inaptitude of the general government to the advancement of their happiness in which event no good citizen could desire its continuance. but with regard to the federal house of representatives, there is intended to be a general election of members once in two years. if the state legislatures were to be invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the union, if the leaders of a few of the most important states should have entered into a previous conspiracy to prevent an election. i shall not deny, that there is a degree of weight in the observation, that the interests of each state, to be represented in the federal councils, will be a security against the abuse of a power over its elections in the hands of the state legislatures. but the security will not be considered as complete, by those who attend to the force of an obvious distinction between the interest of the people in the public felicity, and the interest of their local rulers in the power and consequence of their offices. the people of america may be warmly attached to the government of the union, at times when the particular rulers of particular states, stimulated by the natural rivalship of power, and by the hopes of personal aggrandizement, and supported by a strong faction in each of those states, may be in a very opposite temper. this diversity of sentiment between a majority of the people, and the individuals who have the greatest credit in their councils, is exemplified in some of the states at the present moment, on the present question. the scheme of separate confederacies, which will always multiply the chances of ambition, will be a never failing bait to all such influential characters in the state administrations as are capable of preferring their own emolument and advancement to the public weal. with so effectual a weapon in their hands as the exclusive power of regulating elections for the national government, a combination of a few such men, in a few of the most considerable states, where the temptation will always be the strongest, might accomplish the destruction of the union, by seizing the opportunity of some casual dissatisfaction among the people (and which perhaps they may themselves have excited), to discontinue the choice of members for the federal house of representatives. it ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of europe; and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of them. its preservation, therefore ought in no case that can be avoided, to be committed to the guardianship of any but those whose situation will uniformly beget an immediate interest in the faithful and vigilant performance of the trust. publius 1. 1st clause, 4th section, of the 1st article. federalist no. 60 the same subject continued (concerning the power of congress to regulate the election of members) from the independent journal. saturday, february 23, 1788. hamilton to the people of the state of new york: we have seen, that an uncontrollable power over the elections to the federal government could not, without hazard, be committed to the state legislatures. let us now see, what would be the danger on the other side; that is, from confiding the ultimate right of regulating its own elections to the union itself. it is not pretended, that this right would ever be used for the exclusion of any state from its share in the representation. the interest of all would, in this respect at least, be the security of all. but it is alleged, that it might be employed in such a manner as to promote the election of some favorite class of men in exclusion of others, by confining the places of election to particular districts, and rendering it impracticable to the citizens at large to partake in the choice. of all chimerical suppositions, this seems to be the most chimerical. on the one hand, no rational calculation of probabilities would lead us to imagine that the disposition which a conduct so violent and extraordinary would imply, could ever find its way into the national councils; and on the other, it may be concluded with certainty, that if so improper a spirit should ever gain admittance into them, it would display itself in a form altogether different and far more decisive. the improbability of the attempt may be satisfactorily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people, headed and directed by the state governments. it is not difficult to conceive that this characteristic right of freedom may, in certain turbulent and factious seasons, be violated, in respect to a particular class of citizens, by a victorious and overbearing majority; but that so fundamental a privilege, in a country so situated and enlightened, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government, without occasioning a popular revolution, is altogether inconceivable and incredible. in addition to this general reflection, there are considerations of a more precise nature, which forbid all apprehension on the subject. the dissimilarity in the ingredients which will compose the national government, and still 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 primitive 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 overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people? publius 1. particularly in the southern states and in this state. federalist no. 61 the same subject continued (concerning the power of congress to regulate the election of members) from the new york packet. tuesday, february 26, 1788. hamilton to the people of the state of new york: the more candid opposers of the provision respecting elections, contained in the plan of the convention, when pressed in argument, will sometimes concede the propriety of that provision; with this qualification, however, that it ought to have been accompanied with a declaration, that all elections should be had in the counties where the electors resided. this, say they, was a necessary precaution against an abuse of the power. a declaration of this nature would certainly have been harmless; so far as it would have had the effect of quieting apprehensions, it might not have been undesirable. but it would, in fact, have afforded little or no additional security against the danger apprehended; and the want of it will never be considered, by an impartial and judicious examiner, as a serious, still less as an insuperable, objection to the plan. the different views taken of the subject in the two preceding papers must be sufficient to satisfy all dispassionate and discerning men, that if the public liberty should ever be the victim of the ambition of the national rulers, the power under examination, at least, will be guiltless of the sacrifice. if those who are inclined to consult their jealousy only, would exercise it in a careful inspection of the several state constitutions, they would find little less room for disquietude and alarm, from the latitude which most of them allow in respect to elections, than from the latitude which is proposed to be allowed to the national government in the same respect. a review of their situation, in this particular, would tend greatly to remove any ill impressions which may remain in regard to this matter. but as that view would lead into long and tedious details, i shall content myself with the single example of the state in which i write. the constitution of new york makes no other provision for locality of elections, than that the members of the assembly shall be elected in the counties; those of the senate, in the great districts into which the state is or may be divided: these at present are four in number, and comprehend each from two to six counties. it may readily be perceived that it would not be more difficult to the legislature of new york to defeat the suffrages of the citizens of new york, by confining elections to particular places, than for the legislature of the united states to defeat the suffrages of the citizens of the union, by the like expedient. suppose, for instance, the city of albany was to be appointed the sole place of election for the county and district of which it is a part, would not the inhabitants of that city speedily become the only electors of the members both of the senate and assembly for that county and district? can we imagine that the electors who reside in the remote subdivisions of the counties of albany, saratoga, cambridge, etc., or in any part of the county of montgomery, would take the trouble to come to the city of albany, to give their votes for members of the assembly or senate, sooner than they would repair to the city of new york, to participate in the choice of the members of the federal house of representatives? the alarming indifference discoverable in the exercise of so invaluable a privilege under the existing laws, which afford every facility to it, furnishes a ready answer to this question. and, abstracted from any experience on the subject, we can be at no loss to determine, that when the place of election is at an inconvenient distance from the elector, the effect upon his conduct will be the same whether that distance be twenty miles or twenty thousand miles. hence it must appear, that objections to the particular modification of the federal power of regulating elections will, in substance, apply with equal force to the modification of the like power in the constitution of this state; and for this reason it will be impossible to acquit the one, and to condemn the other. a similar comparison would lead to the same conclusion in respect to the constitutions of most of the other states. if it should be said that defects in the state constitutions furnish no apology for those which are to be found in the plan proposed, i answer, that as the former have never been thought chargeable with inattention to the security of liberty, where the imputations thrown on the latter can be shown to be applicable to them also, the presumption is that they are rather the cavilling refinements of a predetermined opposition, than the well-founded inferences of a candid research after truth. to those who are disposed to consider, as innocent omissions in the state constitutions, what they regard as unpardonable blemishes in the plan of the convention, nothing can be said; or at most, they can only be asked to assign some substantial reason why the representatives of the people in a single state should be more impregnable to the lust of power, or other sinister motives, than the representatives of the people of the united states? if they cannot do this, they ought at least to prove to us that it is easier to subvert the liberties of three millions of people, with the advantage of local governments to head their opposition, than of two hundred thousand people who are destitute of that advantage. and in relation to the point immediately under consideration, they ought to convince us that it is less probable that a predominant faction in a single state should, in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen states, spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests. hitherto my observations have only aimed at a vindication of the provision in question, on the ground of theoretic propriety, on that of the danger of placing the power elsewhere, and on that of the safety of placing it in the manner proposed. but there remains to be mentioned a positive advantage which will result from this disposition, and which could not as well have been obtained from any other: i allude to the circumstance of uniformity in the time of elections for the federal house of representatives. it is more than possible that this uniformity may be found by experience to be of great importance to the public welfare, both as a security against the perpetuation of the same spirit in the body, and as a cure for the diseases of faction. if each state may choose its own time of election, it is possible there may be at least as many different periods as there are months in the year. the times of election in the several states, as they are now established for local purposes, vary between extremes as wide as march and november. the consequence of this diversity would be that there could never happen a total dissolution or renovation of the body at one time. if an improper spirit of any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members, as they come forward in succession. the mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions. there is a contagion in example which few men have sufficient force of mind to resist. i am inclined to think that treble the duration in office, with the condition of a total dissolution of the body at the same time, might be less formidable to liberty than one third of that duration subject to gradual and successive alterations. uniformity in the time of elections seems not less requisite for executing the idea of a regular rotation in the senate, and for conveniently assembling the legislature at a stated period in each year. it may be asked, why, then, could not a time have been fixed in the constitution? as the most zealous adversaries of the plan of the convention in this state are, in general, not less zealous admirers of the constitution of the state, the question may be retorted, and it may be asked, why was not a time for the like purpose fixed in the constitution of this state? no better answer can be given than that it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time. the same answer may be given to the question put on the other side. and it may be added that the supposed danger of a gradual change being merely speculative, it would have been hardly advisable upon that speculation to establish, as a fundamental point, what would deprive several states of the convenience of having the elections for their own governments and for the national government at the same epochs. publius federalist no. 62 the senate for the independent journal. wednesday, february 27, 1788 madison to the people of the state of new york: having examined the constitution of the house of representatives, and answered such of the objections against it as seemed to merit notice, i enter next on the examination of the senate. the heads into which this member of the government may be considered are: i. the qualification of senators; ii. the appointment of them by the state legislatures; iii. the equality of representation in the senate; iv. the number of senators, and the term for which they are to be elected; v. the powers vested in the senate. i. the qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. a senator must be thirty years of age at least; as a representative must be twenty-five. and the former must have been a citizen nine years; as seven years are required for the latter. the propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. the term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils. ii. it is equally unnecessary to dilate on the appointment of senators by the state legislatures. among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. it is recommended by the double advantage of favoring a select appointment, and of giving to the state governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems. iii. the equality of representation in the senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small states, does not call for much discussion. if indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a proportional share in the government, and that among independent and sovereign states, bound together by a simple league, the parties, however unequal in size, ought to have an equal share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. but it is superfluous to try, by the standard of theory, a part of the constitution which is allowed on all hands to be the result, not of theory, but "of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable." a common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of america. a government founded on principles more consonant to the wishes of the larger states, is not likely to be obtained from the smaller states. the only option, then, for the former, lies between the proposed government and a government still more objectionable. under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice. in this spirit it may be remarked, that the equal vote allowed to each state is at once a constitutional recognition of the portion of sovereignty remaining in the individual states, and an instrument for preserving that residuary sovereignty. so far the equality ought to be no less acceptable to the large than to the small states; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the states into one simple republic. another advantage accruing from this ingredient in the constitution of the senate is, the additional impediment it must prove against improper acts of legislation. no law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the states. it must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller states, would be more rational, if any interests common to them, and distinct from those of the other states, would otherwise be exposed to peculiar danger. but as the larger states will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser states, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the constitution may be more convenient in practice than it appears to many in contemplation. iv. the number of senators, and the duration of their appointment, come next to be considered. in order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate; and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution. first. it is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. in this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. it doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. this is a precaution founded on such clear principles, and now so well understood in the united states, that it would be more than superfluous to enlarge on it. i will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government. second. the necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. examples on this subject might be cited without number; and from proceedings within the united states, as well as from the history of other nations. but a position that will not be contradicted, need not be proved. all that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. it ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration. third. another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. it is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. it may be affirmed, on the best grounds, that no small share of the present embarrassments of america is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. what indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate? a good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. some governments are deficient in both these qualities; most governments are deficient in the first. i scruple not to assert, that in american governments too little attention has been paid to the last. the federal constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first. fourth. the mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. every new election in the states is found to change one half of the representatives. from this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. but a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. the remark is verified in private life, and becomes more just, as well as more important, in national transactions. to trace the mischievous effects of a mutable government would fill a volume. i will hint a few only, each of which will be perceived to be a source of innumerable others. in the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. an individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. his more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. one nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. but the best instruction on this subject is unhappily conveyed to america by the example of her own situation. she finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs. the internal effects of a mutable policy are still more calamitous. it poisons the blessing of liberty itself. it will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed? another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. this is a state of things in which it may be said with some truth that laws are made for the few, not for the many. in another point of view, great injury results from an unstable government. the want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. what prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? what farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? in a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy. but the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. no government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability. publius federalist no. 63 the senate continued for the independent journal. saturday, march 1, 1788 madison to the people of the state of new york: a fifth desideratum, illustrating the utility of a senate, is the want of a due sense of national character. without a select and stable member of the government, the esteem of foreign powers will not only be forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned, but the national councils will not possess that sensibility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence. an attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. what has not america lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind? yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. it can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust, that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community. the half-yearly representatives of rhode island would probably have been little affected in their deliberations on the iniquitous measures of that state, by arguments drawn from the light in which such measures would be viewed by foreign nations, or even by the sister states; whilst it can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided people is now laboring. i add, as a sixth defect the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. this remark will, perhaps, appear not only new, but paradoxical. it must nevertheless be acknowledged, when explained, to be as undeniable as it is important. responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. the objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. the importance of the latter description to the collective and permanent welfare of every country, needs no explanation. and yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. nor is it possible for the people to estimate the share of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. it is sufficiently difficult to preserve a personal responsibility in the members of a numerous body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents. the proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects. thus far i have considered the circumstances which point out the necessity of a well-constructed senate only as they relate to the representatives of the people. to a people as little blinded by prejudice or corrupted by flattery as those whom i address, i shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. as the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. in these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? what bitter anguish would not the people of athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next. it may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. i am far from denying that this is a distinction of peculiar importance. i have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. at the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. it may even be remarked, that the same extended situation, which will exempt the people of america from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them. it adds no small weight to all these considerations, to recollect that history informs us of no long-lived republic which had not a senate. sparta, rome, and carthage are, in fact, the only states to whom that character can be applied. in each of the two first there was a senate for life. the constitution of the senate in the last is less known. circumstantial evidence makes it probable that it was not different in this particular from the two others. it is at least certain, that it had some quality or other which rendered it an anchor against popular fluctuations; and that a smaller council, drawn out of the senate, was appointed not only for life, but filled up vacancies itself. these examples, though as unfit for the imitation, as they are repugnant to the genius, of america, are, notwithstanding, when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty. i am not unaware of the circumstances which distinguish the american from other popular governments, as well ancient as modern; and which render extreme circumspection necessary, in reasoning from the one case to the other. but after allowing due weight to this consideration, it may still be maintained, that there are many points of similitude which render these examples not unworthy of our attention. many of the defects, as we have seen, which can only be supplied by a senatorial institution, are common to a numerous assembly frequently elected by the people, and to the people themselves. there are others peculiar to the former, which require the control of such an institution. the people can never wilfully betray their own interests; but they may possibly be betrayed by the representatives of the people; and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act. the difference most relied on, between the american and other republics, consists in the principle of representation; which is the pivot on which the former move, and which is supposed to have been unknown to the latter, or at least to the ancient part of them. the use which has been made of this difference, in reasonings contained in former papers, will have shown that i am disposed neither to deny its existence nor to undervalue its importance. i feel the less restraint, therefore, in observing, that the position concerning the ignorance of the ancient governments on the subject of representation, is by no means precisely true in the latitude commonly given to it. without entering into a disquisition which here would be misplaced, i will refer to a few known facts, in support of what i advance. in the most pure democracies of greece, many of the executive functions were performed, not by the people themselves, but by officers elected by the people, and representing the people in their executive capacity. prior to the reform of solon, athens was governed by nine archons, annually elected by the people at large. the degree of power delegated to them seems to be left in great obscurity. subsequent to that period, we find an assembly, first of four, and afterwards of six hundred members, annually elected by the people; and partially representing them in their legislative capacity, since they were not only associated with the people in the function of making laws, but had the exclusive right of originating legislative propositions to the people. the senate of carthage, also, whatever might be its power, or the duration of its appointment, appears to have been elective by the suffrages of the people. similar instances might be traced in most, if not all the popular governments of antiquity. lastly, in sparta we meet with the ephori, and in rome with the tribunes; two bodies, small indeed in numbers, but annually elected by the whole body of the people, and considered as the representatives of the people, almost in their plenipotentiary capacity. the cosmi of crete were also annually elected by the people, and have been considered by some authors as an institution analogous to those of sparta and rome, with this difference only, that in the election of that representative body the right of suffrage was communicated to a part only of the people. from these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. the true distinction between these and the american governments, lies in the total exclusion of the people, in their collective capacity, from any share in the latter, and not in the total exclusion of the representatives of the people from the administration of the former. the distinction, however, thus qualified, must be admitted to leave a most advantageous superiority in favor of the united states. but to insure to this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory. for it cannot be believed, that any form of representative government could have succeeded within the narrow limits occupied by the democracies of greece. in answer to all these arguments, suggested by reason, illustrated by examples, and enforced by our own experience, the jealous adversary of the constitution will probably content himself with repeating, that a senate appointed not immediately by the people, and for the term of six years, must gradually acquire a dangerous pre-eminence in the government, and finally transform it into a tyrannical aristocracy. to this general answer, the general reply ought to be sufficient, that liberty may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, are apparently most to be apprehended by the united states. but a more particular reply may be given. before such a revolution can be effected, the senate, it is to be observed, must in the first place corrupt itself; must next corrupt the state legislatures; must then corrupt the house of representatives; and must finally corrupt the people at large. it is evident that the senate must be first corrupted before it can attempt an establishment of tyranny. without corrupting the state legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. without exerting the means of corruption with equal success on the house of representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. is there any man who can seriously persuade himself that the proposed senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions? if reason condemns the suspicion, the same sentence is pronounced by experience. the constitution of maryland furnishes the most apposite example. the senate of that state is elected, as the federal senate will be, indirectly by the people, and for a term less by one year only than the federal senate. it is distinguished, also, by the remarkable prerogative of filling up its own vacancies within the term of its appointment, and, at the same time, is not under the control of any such rotation as is provided for the federal senate. there are some other lesser distinctions, which would expose the former to colorable objections, that do not lie against the latter. if the federal senate, therefore, really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the senate of maryland, but no such symptoms have appeared. on the contrary, the jealousies at first entertained by men of the same description with those who view with terror the correspondent part of the federal constitution, have been gradually extinguished by the progress of the experiment; and the maryland constitution is daily deriving, from the salutary operation of this part of it, a reputation in which it will probably not be rivalled by that of any state in the union. but if anything could silence the jealousies on this subject, it ought to be the british example. the senate there instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. the house of representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years, and, in very great proportion, by a very small proportion of the people. here, unquestionably, ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the united states. unfortunately, however, for the anti-federal argument, the british history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the house of representatives; and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch. as far as antiquity can instruct us on this subject, its examples support the reasoning which we have employed. in sparta, the ephori, the annual representatives of the people, were found an overmatch for the senate for life, continually gained on its authority and finally drew all power into their own hands. the tribunes of rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it. the fact is the more remarkable, as unanimity was required in every act of the tribunes, even after their number was augmented to ten. it proves the irresistible force possessed by that branch of a free government, which has the people on its side. to these examples might be added that of carthage, whose senate, according to the testimony of polybius, instead of drawing all power into its vortex, had, at the commencement of the second punic war, lost almost the whole of its original portion. besides the conclusive evidence resulting from this assemblage of facts, that the federal senate will never be able to transform itself, by gradual usurpations, into an independent and aristocratic body, we are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the house of representatives, with the people on their side, will at all times be able to bring back the constitution to its primitive form and principles. against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the senate, but such a display of enlightened policy, and attachment to the public good, as will divide with that branch of the legislature the affections and support of the entire body of the people themselves. publius federalist no. 64 the powers of the senate from the independent journal. wednesday, march 5, 1788. jay to the people of the state of new york: it is a just and not a new observation, that enemies to particular persons, and opponents to particular measures, seldom confine their censures to such things only in either as are worthy of blame. unless on this principle, it is difficult to explain the motives of their conduct, who condemn the proposed constitution in the aggregate, and treat with severity some of the most unexceptionable articles in it. the second section gives power to the president, "by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur." the power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. the convention appears to have been attentive to both these points: they have directed the president to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the state legislatures. this mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors. as the select assemblies for choosing the president, as well as the state legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. the constitution manifests very particular attention to this object. by excluding men under thirty-five from the first office, and those under thirty from the second, it confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle. if the observation be well founded, that wise kings will always be served by able ministers, it is fair to argue, that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. the inference which naturally results from these considerations is this, that the president and senators so chosen will always be of the number of those who best understand our national interests, whether considered in relation to the several states or to foreign nations, who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence. with such men the power of making treaties may be safely lodged. although the absolute necessity of system, in the conduct of any business, is universally known and acknowledged, yet the high importance of it in national affairs has not yet become sufficiently impressed on the public mind. they who wish to commit the power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects, which require to be steadily contemplated in all their relations and circumstances, and which can only be approached and achieved by measures which not only talents, but also exact information, and often much time, are necessary to concert and to execute. it was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them. the duration prescribed is such as will give them an opportunity of greatly extending their political information, and of rendering their accumulating experience more and more beneficial to their country. nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men; for by leaving a considerable residue of the old ones in place, uniformity and order, as well as a constant succession of official information will be preserved. there are a few who will not admit that the affairs of trade and navigation should be regulated by a system cautiously formed and steadily pursued; and that both our treaties and our laws should correspond with and be made to promote it. it is of much consequence that this correspondence and conformity be carefully maintained; and they who assent to the truth of this position will see and confess that it is well provided for by making concurrence of the senate necessary both to treaties and to laws. it seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate despatch are sometimes requisite. these are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the president, but who would not confide in that of the senate, and still less in that of a large popular assembly. the convention have done well, therefore, in so disposing of the power of making treaties, that although the president must, in forming them, act by the advice and consent of the senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest. they who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. to discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious. the loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. as in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. so often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the constitution would have been inexcusably defective, if no attention had been paid to those objects. those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. for these, the president will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the senate, he may at any time convene them. thus we see that the constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other. but to this plan, as to most others that have ever appeared, objections are contrived and urged. some are displeased with it, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. these gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. all constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. it surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected. others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land. they insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. this idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. these gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it. they who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. the proposed constitution, therefore, has not in the least extended the obligation of treaties. they are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government. however useful jealousy may be in republics, yet when like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects. from this cause, probably, proceed the fears and apprehensions of some, that the president and senate may make treaties without an equal eye to the interests of all the states. others suspect that two thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties? as all the states are equally represented in the senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons, and to insist on their punctual attendance. in proportion as the united states assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. it will not be in the power of the president and senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and, having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter. as to corruption, the case is not supposable. he must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the president and two thirds of the senate will ever be capable of such unworthy conduct. the idea is too gross and too invidious to be entertained. but in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations. with respect to their responsibility, it is difficult to conceive how it could be increased. every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity. in short, as the constitution has taken the utmost care that they shall be men of talents and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments. publius federalist no. 65 the powers of the senate continued from the new york packet. friday, march 7, 1788. hamilton to the people of the state of new york: the remaining powers which the plan of the convention allots to the senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. as in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. we will, therefore, conclude this head with a view of the judicial character of the senate. a well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. the subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. they are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself. the prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. in many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. the delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. the difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny. the convention, it appears, thought the senate the most fit depositary of this important trust. those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it. what, it may be asked, is the true spirit of the institution itself? is it not designed as a method of national inquest into the conduct of public men? if this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? it is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? the model from which the idea of this institution has been borrowed, pointed out that course to the convention. in great britain it is the province of the house of commons to prefer the impeachment, and of the house of lords to decide upon it. several of the state constitutions have followed the example. as well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. is not this the true light in which it ought to be regarded? where else than in the senate could have been found a tribunal sufficiently dignified, or sufficiently independent? what other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers? could the supreme court have been relied upon as answering this description? it is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. a deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. the hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. the necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. this can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. there will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. the awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons. these considerations seem alone sufficient to authorize a conclusion, that the supreme court would have been an improper substitute for the senate, as a court of impeachments. there remains a further consideration, which will not a little strengthen this conclusion. it is this: the punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. after having been sentenced to a perpetual 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 community, in the same judgment of it; and to prevail upon one conceited projector to renounce his infallible criterion for the fallible criterion of his more conceited neighbor? to answer the purpose of the adversaries of the constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious. publius federalist no. 66 objections to the power of the senate to set as a court for impeachments further considered. from the independent journal. saturday, march 8, 1788. hamilton to the people of the state of new york: a review of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter. the first of these objections is, that the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and well-established maxim which requires a separation between the different departments of power. the true meaning of this maxim has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected. this partial intermixture is even, in some cases, not only proper but necessary to the mutual defense of the several members of the government against each other. an absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. and it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive. the division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. as the concurrence of two thirds of the senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire. it is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this state; while that constitution makes the senate, together with the chancellor and judges of the supreme court, not only a court of impeachments, but the highest judicatory in the state, in all causes, civil and criminal. the proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of new york, in the last resort, may, with truth, be said to reside in its senate. if the plan of the convention be, in this respect, chargeable with a departure from the celebrated maxim which has been so often mentioned, and seems to be so little understood, how much more culpable must be the constitution of new york?(1) a second objection to the senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. the senate, it is observed, is to have concurrent authority with the executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence. to an objection so little precise in itself, it is not easy to find a very precise answer. where is the measure or criterion to which we can appeal, for determining what will give the senate too much, too little, or barely the proper degree of influence? will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be deposited with most advantage and least inconvenience? if we take this course, it will lead to a more intelligible, if not to a more certain result. the disposition of the power of making treaties, which has obtained in the plan of the convention, will, then, if i mistake not, appear to be fully justified by the considerations stated in a former number, and by others which will occur under the next head of our inquiries. the expediency of the junction of the senate with the executive, in the power of appointing to offices, will, i trust, be placed in a light not less satisfactory, in the disquisitions under the same head. and i flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments, than that which has been chosen. if this be truly the case, the hypothetical dread of the too great weight of the senate ought to be discarded from our reasonings. but this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. it was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most popular branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the government. but independent of this most active and operative principle, to secure the equilibrium of the national house of representatives, the plan of the convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the senate. the exclusive privilege of originating money bills will belong to the house of representatives. the same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them? the same house will be the umpire in all elections of the president, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen. the constant possibility of the thing must be a fruitful source of influence to that body. the more it is contemplated, the more important will appear this ultimate though contingent power, of deciding the competitions of the most illustrious citizens of the union, for the first office in it. it would not perhaps be rash to predict, that as a mean of influence it will be found to outweigh all the peculiar attributes of the senate. a third objection to the senate as a court of impeachments, is drawn from the agency they are to have in the appointments to office. it is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. the principle of this objection would condemn a practice, which is to be seen in all the state governments, if not in all the governments with which we are acquainted: i mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them. with equal plausibility might it be alleged in this case, that the favoritism of the latter would always be an asylum for the misbehavior of the former. but that practice, in contradiction to this principle, proceeds upon the presumption, that the responsibility of those who appoint, for the fitness and competency of the persons on whom they bestow their choice, and the interest they will have in the respectable and prosperous administration of affairs, will inspire a sufficient disposition to dismiss from a share in it all such who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the senate, who will merely sanction the choice of the executive, should feel a bias, towards the objects of that choice, strong enough to blind them to the evidences of guilt so extraordinary, as to have induced the representatives of the nation to become its accusers. if any further arguments were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the senate in the business of appointments. it will be the office of the president to nominate, and, with the advice and consent of the senate, to appoint. there will, of course, be no exertion of choice on the part of the senate. they may defeat one choice of the executive, and oblige him to make another; but they cannot themselves choose--they can only ratify or reject the choice of the president. they might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. thus it could hardly happen, that the majority of the senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy. a fourth objection to the senate in the capacity of a court of impeachments, is derived from its union with the executive in the power of making treaties. this, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. after having combined with the executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty? this objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan; and yet i am deceived if it does not rest upon an erroneous foundation. the security essentially intended by the constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. the joint agency of the chief magistrate of the union, and of two thirds of the members of a body selected by the collective wisdom of the legislatures of the several states, is designed to be the pledge for the fidelity of the national councils in this particular. the convention might with propriety have meditated the punishment of the executive, for a deviation from the instructions of the senate, or a want of integrity in the conduct of the negotiations committed to him; they might also have had in view the punishment of a few leading individuals in the senate, who should have prostituted their influence in that body as the mercenary instruments of foreign corruption: but they could not, with more or with equal propriety, have contemplated the impeachment and punishment of two thirds of the senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law--a principle which, i believe, has never been admitted into any government. how, in fact, could a majority in the house of representatives impeach themselves? not better, it is evident, than two thirds of the senate might try themselves. and yet what reason is there, that a majority of the house of representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two thirds of the senate, sacrificing the same interests in an injurious treaty with a foreign power? the truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good. so far as might concern the misbehavior of the executive in perverting the instructions or contravening the views of the senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority. we may thus far count upon their pride, if not upon their virtue. and so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace. publius 1. in that of new jersey, also, the final judiciary authority is in a branch of the legislature. in new hampshire, massachusetts, pennsylvania, and south carolina, one branch of the legislature is the court for the trial of impeachments. federalist no. 67 the executive department from the new york packet. tuesday, march 11, 1788. hamilton to the people of the state of new york: the constitution of the executive department of the proposed government, claims next our attention. there is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this; and there is, perhaps, none which has been inveighed against with less candor or criticised with less judgment. here the writers against the constitution seem to have taken pains to signalize their talent of misrepresentation. calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended president of the united states; not merely as the embryo, but as the full-grown progeny, of that detested parent. to establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction. the authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of new york, have been magnified into more than royal prerogatives. he has been decorated with attributes superior in dignity and splendor to those of a king of great britain. he has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. he has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. the images of asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. we have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio. attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form: in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated. in the execution of this task, there is no man who would not find it an arduous effort either to behold with moderation, or to treat with seriousness, the devices, not less weak than wicked, which have been contrived to pervert the public opinion in relation to the subject. they so far exceed the usual though unjustifiable licenses of party artifice, that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. it is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a similitude between a king of great britain and a magistrate of the character marked out for that of the president of the united states. it is still more impossible to withhold that imputation from the rash and barefaced expedients which have been employed to give success to the attempted imposition. in one instance, which i cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the president of the united states a power which by the instrument reported is expressly allotted to the executives of the individual states. i mean the power of filling casual vacancies in the senate. this bold experiment upon the discernment of his countrymen has been hazarded by a writer who (whatever may be his real merit) has had no inconsiderable share in the applauses of his party(1); and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded. let him now be confronted with the evidence of the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing. the second clause of the second section of the second article empowers the president of the united states "to nominate, and by and with the advice and consent of the senate, to appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of united states whose appointments are not in the constitution otherwise provided for, and which shall be established by law." immediately after this clause follows another in these words: "the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session." it is from this last provision that the pretended power of the president to fill vacancies in the senate has been deduced. a slight attention to the connection of the clauses, and to the obvious meaning of the terms, will satisfy us that the deduction is not even colorable. the first of these two clauses, it is clear, only provides a mode for appointing such officers, "whose appointments are not otherwise provided for in the constitution, and which shall be established by law"; of course it cannot extend to the appointments of senators, whose appointments are otherwise provided for in the constitution(2), and who are established by the constitution, and will not require a future establishment by law. this position will hardly be contested. the last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the senate, for the following reasons: first. the relation in which that clause stands to the other, which declares the general mode of appointing officers of the united states, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. the ordinary power of appointment is confined to the president and senate jointly, and can therefore only be exercised during the session of the senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the president, singly, to make temporary appointments "during the recess of the senate, by granting commissions which shall expire at the end of their next session." second. if this clause is to be considered as supplementary to the one which precedes, the vacancies of which it speaks must be construed to relate to the "officers" described in the preceding one; and this, we have seen, excludes from its description the members of the senate. third. the time within which the power is to operate, "during the recess of the senate," and the duration of the appointments, "to the end of the next session" of that body, conspire to elucidate the sense of the provision, which, if it had been intended to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the state legislatures, who are to make the permanent appointments, and not to the recess of the national senate, who are to have no concern in those appointments; and would have extended the duration in office of the temporary senators to the next session of the legislature of the state, in whose representation the vacancies had happened, instead of making it to expire at the end of the ensuing session of the national senate. the circumstances of the body authorized to make the permanent appointments would, of course, have governed the modification of a power which related to the temporary appointments; and as the national senate is the body, whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the president. but last, the first and second clauses of the third section of the first article, not only obviate all possibility of doubt, but destroy the pretext of misconception. the former provides, that "the senate of the united states shall be composed of two senators from each state, chosen by the legislature thereof for six years"; and the latter directs, that, "if vacancies in that body should happen by resignation or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." here is an express power given, in clear and unambiguous terms, to the state executives, to fill casual vacancies in the senate, by temporary appointments; which not only invalidates the supposition, that the clause before considered could have been intended to confer that power upon the president of the united states, but proves that this supposition, destitute as it is even of the merit of plausibility, must have originated in an intention to deceive the people, too palpable to be obscured by sophistry, too atrocious to be palliated by hypocrisy. i have taken the pains to select this instance of misrepresentation, and to place it in a clear and strong light, as an unequivocal proof of the unwarrantable arts which are practiced to prevent a fair and impartial judgment of the real merits of the constitution submitted to the consideration of the people. nor have i scrupled, in so flagrant a case, to allow myself a severity of animadversion little congenial with the general spirit of these papers. i hesitate not to submit it to the decision of any candid and honest adversary of the proposed government, whether language can furnish epithets of too much asperity, for so shameless and so prostitute an attempt to impose on the citizens of america. publius 1. see cato, no. v. 2. article i, section 3, clause 1. federalist no. 68 the mode of electing the president from the independent journal. wednesday, march 12, 1788. hamilton to the people of the state of new york: the mode of appointment of the chief magistrate of the united states is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. the most plausible of these, who has appeared in print, has even deigned to admit that the election of the president is pretty well guarded.(1) i venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. it unites in an eminent degree all the advantages, the union of which was to be wished for.(e1) it was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. this end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture. it was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. a small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. it was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. this evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the president of the united states. but the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. the choice of several, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes. and as the electors, chosen in each state, are to assemble and vote in the state in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. these most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. how could they better gratify this, than by raising a creature of their own to the chief magistracy of the union? but the convention have guarded against all danger of this sort, with the most provident and judicious attention. they have not made the appointment of the president to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of america, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. and they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the president in office. no senator, representative, or other person holding a place of trust or profit under the united states, can be of the numbers of the electors. thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. the business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen states, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty. another and no less important desideratum was, that the executive should be independent for his continuance in office on all but the people themselves. he might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. this advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice. all these advantages will happily combine in the plan devised by the convention; which is, that the people of each state shall choose a number of persons as electors, equal to the number of senators and representatives of such state in the national government, who shall assemble within the state, and vote for some fit person as president. their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the president. but as a majority of the votes might not always happen to centre in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the house of representatives shall select out of the candidates who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office. the process of election affords a moral certainty, that the office of president will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single state; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the united states. it will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. and this will be thought no inconsiderable recommendation of the constitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. though we cannot acquiesce in the political heresy of the poet who says: "for forms of government let fools contest--that which is best administered is best,"--yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration. the vice-president is to be chosen in the same manner with the president; with this difference, that the senate is to do, in respect to the former, what is to be done by the house of representatives, in respect to the latter. the appointment of an extraordinary person, as vice-president, has been objected to as superfluous, if not mischievous. it has been alleged, that it would have been preferable to have authorized the senate to elect out of their own body an officer answering that description. but two considerations seem to justify the ideas of the convention in this respect. one is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the president should have only a casting vote. and to take the senator of any state from his seat as senator, to place him in that of president of the senate, would be to exchange, in regard to the state from which he came, a constant for a contingent vote. the other consideration is, that as the vice-president may occasionally become a substitute for the president, in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not with equal force to the manner of appointing the other. it is remarkable that in this, as in most other instances, the objection which is made would lie against the constitution of this state. we have a lieutenant-governor, chosen by the people at large, who presides in the senate, and is the constitutional substitute for the governor, in casualties similar to those which would authorize the vice-president to exercise the authorities and discharge the duties of the president. publius 1. vide federal farmer. e1. some editions substitute "desired" for "wished for". federalist no. 69 the real character of the executive from the new york packet. friday, march 14, 1788. hamilton to the people of the state of new york: i proceed now to trace the real characters of the proposed executive, as they are marked out in the plan of the convention. this will serve to place in a strong light the unfairness of the representations which have been made in regard to it. the first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. this will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of great britain, there is not less a resemblance to the grand seignior, to the khan of tartary, to the man of the seven mountains, or to the governor of new york. that magistrate is to be elected for four years; and is to be re-eligible as often as the people of the united states shall think him worthy of their confidence. in these circumstances there is a total dissimilitude between him and a king of great britain, who is an hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between him and a governor of new york, who is elected for three years, and is re-eligible without limitation or intermission. if we consider how much less time would be requisite for establishing a dangerous influence in a single state, than for establishing a like influence throughout the united states, we must conclude that a duration of four years for the chief magistrate of the union is a degree of permanency far less to be dreaded in that office, than a duration of three years for a corresponding office in a single state. the president of the united states would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. the person of the king of great britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. in this delicate and important circumstance of personal responsibility, the president of confederated america would stand upon no better ground than a governor of new york, and upon worse ground than the governors of maryland and delaware. the president of the united states is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. the king of great britain, on his part, has an absolute negative upon the acts of the two houses of parliament. the disuse of that power for a considerable time past does not affect the reality of its existence; and is to be ascribed wholly to the crown's having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. the qualified negative of the president differs widely from this absolute negative of the british sovereign; and tallies exactly with the revisionary authority of the council of revision of this state, of which the governor is a constituent part. in this respect the power of the president would exceed that of the governor of new york, because the former would possess, singly, what the latter shares with the chancellor and judges; but it would be precisely the same with that of the governor of massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied. the president is to be the "commander-in-chief of the army and navy of the united states, and of the militia of the several states, when called into the actual service of the united states. he is to have power to grant reprieves and pardons for offenses against the united states, except in cases of impeachment; to recommend to the consideration of congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the united states." in most of these particulars, the power of the president will resemble equally that of the king of great britain and of the governor of new york. the most material points of difference are these:--first. the president will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the union. the king of great britain and the governor of new york have at all times the entire command of all the militia within their several jurisdictions. in this article, therefore, the power of the president would be inferior to that of either the monarch or the governor. second. the president is to be commander-in-chief of the army and navy of the united states. in this respect his authority would be nominally the same with that of the king of great britain, but in substance much inferior to it. it would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the british king extends to the declaring of war and to the raising and regulating of fleets and armies--all which, by the constitution under consideration, would appertain to the legislature.(1) the governor of new york, on the other hand, is by the constitution of the state vested only with the command of its militia and navy. but the constitutions of several of the states expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of new hampshire and massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a president of the united states. third. the power of the president, in respect to pardons, would extend to all cases, except those of impeachment. the governor of new york may pardon in all cases, even in those of impeachment, except for treason and murder. is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the president? all conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. if a governor of new york, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. a president of the union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? the better to judge of this matter, it will be necessary to recollect, that, by the proposed constitution, the offense of treason is limited "to levying war upon the united states, and adhering to their enemies, giving them aid and comfort"; and that by the laws of new york it is confined within similar bounds. fourth. the president can only adjourn the national legislature in the single case of disagreement about the time of adjournment. the british monarch may prorogue or even dissolve the parliament. the governor of new york may also prorogue the legislature of this state for a limited time; a power which, in certain situations, may be employed to very important purposes. the president is to have power, with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur. the king of great britain is the sole and absolute representative of the nation in all foreign transactions. he can of his own accord make treaties of peace, commerce, alliance, and of every other description. it has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of parliament. but i believe this doctrine was never heard of, until it was broached upon the present occasion. every jurist(2) of that kingdom, and every other man acquainted with its constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost 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 owes his prerogative as commander-in-chief to an annual mutiny bill. the truth is, on the contrary, that his prerogative, in this respect, is immemorial, and was only disputed, "contrary to all reason and precedent," as blackstone vol. i., page 262, expresses it, by the long parliament of charles i. but by the statute the 13th of charles ii., chap. 6, it was declared to be in the king alone, for that the sole supreme government and command of the militia within his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty and his royal predecessors, kings and queens of england, and that both or either house of parliament cannot nor ought to pretend to the same. 2. vide blackstone's commentaries, vol i., p. 257. 3. candor, however, demands an acknowledgment that i do not think the claim of the governor to a right of nomination well founded. yet it is always justifiable to reason from the practice of a government, till its propriety has been constitutionally questioned. and independent of this claim, when we take into view the other considerations, and pursue them through all their consequences, we shall be inclined to draw much the same conclusion. federalist no. 70 the executive department further considered from the independent journal. saturday, march 15, 1788. hamilton to the people of the state of new york: there is an idea, which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government. the enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. energy in the executive is a leading character in the definition of good government. it is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. every man the least conversant in roman history, 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 republican sense are, first, a due dependence on the people, secondly, a due responsibility. those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single executive and a numerous legislature. they have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests. that unity is conducive to energy will not be disputed. decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished. this unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. of the first, the two consuls of rome may serve as an example; of the last, we shall find examples in the constitutions of several of the states. new york and new jersey, if i recollect right, are the only states which have intrusted the executive authority wholly to single men.(1) both these methods of destroying the unity of the executive have their partisans; but the votaries of an executive council are the most numerous. they are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction. the experience of other nations will afford little instruction on this head. as far, however, as it teaches any thing, it teaches us not to be enamoured of plurality in the executive. we have seen that the achaeans, on an experiment of two praetors, were induced to abolish one. the roman history records many instances of mischiefs to the republic from the dissensions between the consuls, and between the military tribunes, who were at times substituted for the consuls. but it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. that the dissensions between them were not more frequent or more fatal, is a matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the consuls, of making a division of the government between them. the patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities; the consuls, who were generally chosen out of the former body, were commonly united by the personal interest they had in the defense of the privileges of their order. in addition to this motive of union, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the consuls to divide the administration between themselves by lot--one of them remaining at rome to govern the city and its environs, the other taking the command in the more distant provinces. this expedient must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic. but quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good sense, we shall discover much greater cause to reject than to approve the idea of plurality in the executive, under any modification whatever. wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. if it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. from either, and especially from all these causes, the most bitter dissensions are apt to spring. whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. if they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. and what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy. men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. but if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. they seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character. upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the executive. it is here too that they may be most pernicious. in the legislature, promptitude of decision is oftener an evil than a benefit. the differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. when a resolution too is once taken, the opposition must be at an end. that resolution is a law, and resistance to it punishable. but no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. here, they are pure and unmixed. there is no point at which they cease to operate. they serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. they constantly counteract those qualities in the executive which are the most necessary ingredients in its composition--vigor and expedition, and this without any counterbalancing good. in the conduct of war, in which the energy of the executive is the bulwark of the national security, every thing would be to be apprehended from its plurality. it must be confessed that these observations apply with principal weight to the first case supposed--that is, to a plurality of magistrates of equal dignity and authority a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible executive. an artful cabal in that council would be able to distract and to enervate the whole system of administration. if no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness. (but one of the weightiest objections to a plurality in the executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. responsibility is of two kinds--to censure and to punishment. the first is the more important of the two, especially in an elective office. man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. but the multiplication of the executive adds to the difficulty of detection in either case. it often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. it is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. the circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.)(e1) (but one of the weightiest objections to a plurality in the executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. responsibility is of two kinds--to censure and to punishment. the first is the more important of the two, especially in an elective office. man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. but the multiplication of the executive adds to the difficulty of detection in either case. it often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. it is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. the circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.)(e1) "i was overruled by my council. the council were so divided in their opinions that it was impossible to obtain any better resolution on the point." these and similar pretexts are constantly at hand, whether true or false. and who is there that will either take the trouble or incur the odium, of a strict scrutiny into the secret springs of the transaction? should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties? in the single instance in which the governor of this state is coupled with a council--that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. scandalous appointments to important offices have been made. some cases, indeed, have been so flagrant that all parties have agreed in the impropriety of the thing. when inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people remain altogether at a loss to determine, by whose influence their interests have been committed to hands so unqualified and so manifestly improper. in tenderness to individuals, i forbear to descend to particulars. it is evident from these considerations, that the plurality of the executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, second, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it. in england, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the public 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 unattainable. numbers must be so great as to render combination difficult, or they are rather a source of danger than of security. the united credit and influence of several individuals must be more formidable to liberty, than the credit and influence of either of them separately. when power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. the decemvirs of rome, whose name denotes their number,(3) were more to be dreaded in their usurpation than any one of them would have been. no person would think of proposing an executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. the extreme of these numbers, is not too great for an easy combination; and from such a combination america would have more to fear, than from the ambition of any single individual. a council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults. i forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. i will only add that, prior to the appearance of the constitution, i rarely met with an intelligent man from any of the states, who did not admit, as the result of experience, that the unity of the executive of this state was one of the best of the distinguishing features of our constitution. publius 1. new york has no council except for the single purpose of appointing to offices; new jersey has a council whom the governor may consult. but i think, from the terms of the constitution, their resolutions do not bind him. 2. de lolme. 3. ten. e1. two versions of these paragraphs appear in different editions. federalist no. 71 the duration in office of the executive from the new york packet. tuesday, march 18, 1788. hamilton to the people of the state of new york: duration in office has been mentioned as the second requisite to the energy of the executive authority. this has relation to two objects: to the personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. with regard to the first, it must be evident, that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. it is a general principle of human nature, that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title; and, of course, will be willing to risk more for the sake of the one, than for the sake of the other. this remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary property. the inference from it is, that a man acting in the capacity of chief magistrate, under a consciousness that in a very short time he must lay down his office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity, from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body. if the case should only be, that he might lay it down, unless continued by a new choice, and if he should be desirous of being continued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. in either case, feebleness and irresolution must be the characteristics of the station. there are some who would be inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation. but such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. the republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. it is a just observation, that the people commonly intend the public good. this often applies to their very errors. but their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. they know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. when occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure. but however inclined we might be to insist upon an unbounded complaisance in the executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. the latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. in either supposition, it is certainly desirable that the executive should be in a situation to dare to act his own opinion with vigor and decision. the same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. to what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? such a separation must be merely nominal, and incapable of producing the ends for which it was established. it is one thing to be subordinate to the laws, and another to be dependent on the legislative body. the first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the constitution, unites all power in the same hands. the tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. in governments purely republican, this tendency is almost irresistible. the representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. they often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the constitution. it may perhaps be asked, how the shortness of the duration in office can affect the independence of the executive on the legislature, unless the one were possessed of the power of appointing or displacing the other. one answer to this inquiry may be drawn from the principle already remarked that is, from the slender interest a man is apt to take in a short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any considerable inconvenience or hazard. another answer, perhaps more obvious, though not more conclusive, will result from the consideration of the influence of the legislative body over the people; which might be employed to prevent the re-election of a man who, by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment. it may be asked also, whether a duration of four years would answer the end proposed; and if it would not, whether a less period, which would at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate. it cannot be affirmed, that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. between the commencement and termination of such a period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man indued with a tolerable portion of fortitude; and in which he might reasonably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. though it be probable that, as he approached the moment when the public were, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him, of establishing himself in the esteem and good-will of his constituents. he might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. as, on the one hand, a duration of four years will contribute to the firmness of the executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty. if a british house of commons, from the most feeble beginnings, from the mere power of assenting or disagreeing to the imposition of a new tax, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the church as state; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation(1) attempted by them, what would be to be feared from an elective magistrate of four years' duration, with the confined authorities of a president of the united states? what, but that he might be unequal to the task which the constitution assigns him? i shall only add, that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments. publius 1. this was the case with respect to mr. fox's india bill, which was carried in the house of commons, and rejected in the house of lords, to the entire satisfaction, as it is said, of the people. federalist no. 72 the same subject continued, and re-eligibility of the executive considered. from the independent journal. wednesday, march 19, 1788. hamilton to the people of the state of new york: the administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but in its most usual, and perhaps its most precise signification. it is limited to executive details, and falls peculiarly within the province of the executive department. the actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war--these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. the persons, therefore, to whose immediate management these different matters are committed, ought to be considered as the assistants or deputies of the chief magistrate, and on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. this view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration. to reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert; and in addition to this propensity, where the alteration has been the result of public choice, the person substituted is warranted in supposing that the dismission of his predecessor has proceeded from a dislike to his measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents. these considerations, and the influence of personal confidences and attachments, would be likely to induce every new president to promote a change of men to fill the subordinate stations; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government. with a positive duration of considerable extent, i connect the circumstance of re-eligibility. the first is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. the last is necessary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration. nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates--i mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after. this exclusion, whether temporary or perpetual, would have nearly the same effects, and these effects would be for the most part rather pernicious than salutary. one ill effect of the exclusion would be a diminution of the inducements to good behavior. there are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of obtaining, by meriting, a continuance of them. this position will not be disputed so long as it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make their interests coincide with their duty. even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, requiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would, on the contrary, deter him from the undertaking, when he foresaw that he must quit the scene before he could accomplish the work, and must commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. the most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good. another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation. an avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory; though the same man, probably, with a different prospect before him, might content himself with the regular perquisites of his situation, and might even be unwilling to risk the consequences of an abuse of his opportunities. his avarice might be a guard upon his avarice. add to this that the same man might be vain or ambitious, as well as avaricious. and if he could expect to prolong his honors by his good conduct, he might hesitate to sacrifice his appetite for them to his appetite for gain. but with the prospect before him of approaching an inevitable annihilation, his avarice would be likely to get the victory over his caution, his vanity, or his ambition. an ambitious man, too, when he found himself seated on the summit of his country's honors, when he looked forward to the time at which he must descend from the exalted eminence for ever, and reflected that no exertion of merit on his part could save him from the unwelcome reverse; such a man, in such a situation, would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty. would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess? a third ill effect of the exclusion would be, the depriving the community of the advantage of the experience gained by the chief magistrate in the exercise of his office. that experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well as the simplest of mankind. what more desirable or more essential than this quality in the governors of nations? where more desirable or more essential than in the first magistrate of a nation? can it be wise to put this desirable and essential quality under the ban of the constitution, and to declare that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted? this, nevertheless, is the precise import of all those regulations which exclude men from serving their country, by the choice of their fellowcitizens, after they have by a course of service fitted themselves for doing it with a greater degree of utility. a fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety. there is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular men in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence. how unwise, therefore, must be every such self-denying ordinance as serves to prohibit a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances! without supposing the personal essentiality of the man, it is evident that a change of the chief magistrate, at the breaking out of a war, or at any similar crisis, for another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration. a fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of stability in the administration. by necessitating a change of men, in the first office of the nation, it would necessitate a mutability of measures. it is not generally to be expected, that men will vary and measures remain uniform. the contrary is the usual course of things. and we need not be apprehensive that there will be too much stability, while there is even the option of changing; nor need we desire to prohibit the people from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy. these are some of the disadvantages which would flow from the principle of exclusion. they apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other. what are the advantages promised to counterbalance these disadvantages? they are represented to be: 1st, greater independence in the magistrate; 2d, greater security to the people. unless the exclusion be perpetual, there will be no pretense to infer the first advantage. but even in that case, may he have no object beyond his present station, to which he may sacrifice his independence? may he have no connections, no friends, for whom he may sacrifice it? may he not be less willing by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only may, but must, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing? it is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement. as to the second supposed advantage, there is still greater reason to entertain doubts concerning it. if the exclusion were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain apprehension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his passion for power and pre-eminence had acquired the force of habit. and if he had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. there may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege. there is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion, to approbation and confidence; the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive. publius federalist no. 73 the provision for the support of the executive, and the veto power from the new york packet. friday, march 21, 1788. hamilton to the people of the state of new york: the third ingredient towards constituting the vigor of the executive authority, is an adequate provision for its support. it is evident that, without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. the legislature, with a discretionary power over the salary and emoluments of the chief magistrate, could render him as obsequious to their will as they might think proper to make him. they might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. these expressions, taken in all the latitude of the terms, would no doubt convey more than is intended. there are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and in the main it will be found that a power over a man's support is a power over his will. if it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimidation or seduction of the executive by the terrors or allurements of the pecuniary arrangements of the legislative body. it is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed constitution. it is there provided that "the president of the united states shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the united states, or any of them." it is impossible to imagine any provision which would have been more eligible than this. the legislature, on the appointment of a president, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. this done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. they can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice. neither the union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act. he can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the constitution. the last of the requisites to energy, which have been enumerated, are competent powers. let us proceed to consider those which are proposed to be vested in the president of the united states. the first thing that offers itself to our observation, is the qualified negative of the president upon the acts or resolutions of the two houses of the legislature; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body. the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense, has been inferred and proved. from these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the executive, upon the acts of the legislative branches. without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. he might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. and in the one mode or the other, the legislative and executive powers might speedily come to be blended in the same hands. if even no propensity had ever discovered itself in the legislative body to invade the rights of the executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self-defense. but the power in question has a further use. it not only serves as a shield to the executive, but it furnishes an additional security against the 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 well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. the dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. the loss of a week, a day, an hour, may sometimes be fatal. if it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the president, it may be answered in the first place, that it is questionable, whether, in a limited constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. a proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt. publius federalist no. 75 the treaty-making power of the executive for the independent journal. wednesday, march 26, 1788 hamilton to the people of the state of new york: the president is to have power, "by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur." though this provision has been assailed, on different grounds, with no small degree of vehemence, i scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. one ground of objection is the trite topic of the intermixture of powers; some contending that the president ought alone to possess the power of making treaties; others, that it ought to have been exclusively deposited in the senate. another source of objection is derived from the small number of persons by whom a treaty may be made. of those who espouse this objection, a part are of opinion that the house of representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of all the members of the senate, to two thirds of the members present. as i flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a discerning eye, in a very favorable light, i shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated. with regard to the intermixture of powers, i shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the executive with the senate, in the article of treaties, is no infringement of that rule. i venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. the essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. the power of making treaties is, plainly, neither the one nor the other. it relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. they are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. the power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. the qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them. however proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration. it has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. but a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. an avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. an ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. the history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a president of the united states. to have intrusted the power of making treaties to the senate alone, would have been to relinquish the benefits of the constitutional agency of the president in the conduct of foreign negotiations. it is true that the senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former. besides this, the ministerial servant of the senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy. while the union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the co-operation of the executive. though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. it must indeed be clear to a demonstration that the joint possession of the power in question, by the president and senate, would afford a greater prospect of security, than the separate possession of it by either of them. and whoever has maturely weighed the circumstances which must concur in the appointment of a president, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity. the remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the house of representatives to a share in the formation of treaties. the fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous. the very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. the greater frequency of the calls upon the house of representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project. the only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members present. it has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. this consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. if two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. and the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. proofs of this position might be adduced from the examples of the roman tribuneship, the polish diet, and the states-general of the netherlands, did not an example at home render foreign precedents unnecessary. to require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. the former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. the latter, by making the capacity of the body to depend on a proportion which may be varied by the absence or presence of a single member, has the contrary effect. and as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. it ought not to be forgotten that, under the existing confederation, two members may, and usually do, represent a state; whence it happens that congress, who now are solely invested with all the powers of the union, rarely consist of a greater number of persons than would compose the intended senate. if we add to this, that as the members vote by states, and that where there is only a single member present from a state, his vote is lost, it will justify a supposition that the active voices in the senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing congress. when, in addition to these considerations, we take into view the co-operation of the president, we shall not hesitate to infer that the people of america would have greater security against an improper use of the power of making treaties, under the new constitution, than they now enjoy under the confederation. and when we proceed still one step further, and look forward to the probable augmentation of the senate, by the erection of new states, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the senate would be likely to become, would be very little fit for the proper discharge of the trust. publius federalist no. 76 the appointing power of the executive from the new york packet. tuesday, april 1, 1788. hamilton to the people of the state of new york: the president is "to nominate, and, by and with the advice and consent of the senate, to appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the united states whose appointments are not otherwise provided for in the constitution. but the congress may by law vest the appointment of such inferior officers as they think proper, in the president alone, or in the courts of law, or in the heads of departments. the president shall have power to fill up all vacancies which may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session." it has been observed in a former paper, that "the true test of a good government is its aptitude and tendency to produce a good administration." if the justness of this observation be admitted, the mode of appointing the officers of the united states contained in the foregoing clauses, must, when examined, be allowed to be entitled to particular commendation. it is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the union; and it will not need proof, that on this point must essentially depend the character of its administration. it will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. it ought either to be vested in a single man, or in a select assembly of a moderate number; or in a single man, with the concurrence of such an assembly. the exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. when, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. the people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men. those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the president, will, i presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. premising this, i proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment. the sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. he will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. he will have fewer personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. a single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. there is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. the choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. in either case, the intrinsic merit of the candidate will be too often out of sight. in the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. in the last, the coalition will commonly turn upon some interested equivalent: "give us the man we wish for this office, and you shall have the one you wish for that." this will be the usual condition of the bargain. and it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations. the truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. they contend that the president ought solely to have been authorized to make the appointments under the federal government. but it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. in the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. there can, in this view, be no difference between nominating and appointing. the same motives which would influence a proper discharge of his duty in one case, would exist in the other. and as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice. but might not his nomination be overruled? i grant it might, yet this could only be to make place for another nomination by himself. the person ultimately appointed must be the object of his preference, though perhaps not in the first degree. it is also not very probable that his nomination would often be overruled. the senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. they could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. to what purpose then require the co-operation of the senate? i answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. it would be an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity. in addition to this, it would be an efficacious source of stability in the administration. it will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. the possibility of rejection would be a strong motive to care in proposing. the danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. he would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same state to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. to this reasoning it has been objected that the president, by the influence of the power of nomination, may secure the complaisance of the senate to his views. this supposition of universal venalty in human nature is little less an error in political reasoning, than the supposition of universal rectitude. the institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. it has been found to exist in the most corrupt periods of the most corrupt governments. the venalty of the british house of commons has been long a topic of accusation against that body, in the country to which they belong as well as in this; and it cannot be doubted that the charge is, to a considerable extent, well founded. but it is as little to be doubted, that there is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation. hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. though it might therefore be allowable to suppose that the executive might occasionally influence some individuals in the senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. a man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the senate, to rest satisfied, not only that it will be impracticable to the executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. nor is the integrity of the senate the only reliance. the constitution has provided some important guards against the danger of executive influence upon the legislative body: it declares that "no senator or representative shall during the time for which he was elected, be appointed to any civil office under the united states, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the united states, shall be a member of either house during his continuance in office." publius federalist no. 77 the appointing power continued and other powers of the executive considered. from the independent journal. wednesday, april 2, 1788. hamilton to the people of the state of new york: it has been mentioned as one of the advantages to be expected from the co-operation of the senate, in the business of appointments, that it would contribute to the stability of the administration. the consent of that body would be necessary to displace as well as to appoint. a change of the chief magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the senate might frustrate the attempt, and bring some degree of discredit upon himself. those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government. to this union of the senate with the president, in the article of appointments, it has in some cases been suggested that it would serve to give the president an undue influence over the senate, and in others that it would have an opposite tendency--a strong proof that neither suggestion is true. to state the first in its proper form, is to refute it. it amounts to this: the president would have an improper influence over the senate, because the senate would have the power of restraining him. this is an absurdity in terms. it cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their control. let us take a view of the converse of the proposition: "the senate would influence the executive." as i have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. in what manner is this influence to be exerted? in relation to what objects? the power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. how could the senate confer a benefit upon the president by the manner of employing their right of negative upon his nominations? if it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, i answer, that the instances in which the president could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the senate. the power which can originate the disposition of honors and emoluments, is more likely to attract than to be attracted by the power which can merely obstruct their course. if by influencing the president be meant restraining him, this is precisely what must have been intended. and it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that magistrate. the right of nomination would produce all the (good, without the ill.)(e1) (good of that of appointment, and would in a great measure avoid its evils.)(e1) upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this state, a decided preference must be given to the former. in that plan the power of nomination is unequivocally vested in the executive. and as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. the blame of a bad nomination would fall upon the president singly and absolutely. the censure of rejecting a good one would lie entirely at the door of the senate; aggravated by the consideration of their having counteracted the good intentions of the executive. if an ill appointment should be made, the executive for nominating, and the senate for approving, would participate, though in different degrees, in the opprobrium and disgrace. the reverse of all this characterizes the manner of appointment in this state. the council of appointment consists of from three to five persons, of whom the governor is always one. this small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them. it is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed. the censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither poignancy nor duration. and while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. the most that the public can know, is that the governor claims the right of nomination; that two out of the inconsiderable number of four men can too often be managed without much difficulty; that if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition by regulating the times of meeting in such a manner as to render their attendance inconvenient; and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made. whether a governor of this state avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture. every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. and as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. the private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived. if, to avoid an accumulation of offices, there was to be a frequent change in the persons who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent. such a council would also be more liable to executive influence than the senate, because they would be fewer in number, and would act less immediately under the public inspection. such a council, in fine, as a substitute for the plan of the convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the executive. and yet such a council has been warmly contended for as an essential amendment in the proposed constitution. i could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates; i mean that of uniting the house of representatives in the power of making them. i shall, however, do little more than mention it, as i cannot imagine that it is likely to gain the countenance of any considerable part of the community. a body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power. its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. all the advantages of the stability, both of the executive and of the senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned. the example of most of the states in their local constitutions encourages us to reprobate the idea. the only remaining powers of the executive are comprehended in giving information to congress of the state of the union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the united states. except some cavils about the power of convening either house of the legislature, and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. it required, indeed, an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. in regard to the power of convening either house of the legislature, i shall barely remark, that in respect to the senate at least, we can readily discover a good reason for it. as this body has a concurrent power with the executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the house of representatives. as to the reception of ambassadors, what i have said in a former paper will furnish a sufficient answer. we have now completed a survey of the structure and powers of the executive department, which, i have endeavored to show, combines, as far as republican principles will admit, all the requisites to energy. the remaining inquiry is: does it also combine the requisites to safety, in a republican sense--a due dependence on the people, a due responsibility? the answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the president once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. but these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. in the only instances in which the abuse of the executive authority was materially to be feared, the chief magistrate of the united states would, by that plan, be subjected to the control of a branch of the legislative body. what more could be desired by an enlightened and reasonable people? publius e1. these two alternate endings of this sentence appear in different editions. federalist no. 78 the judiciary department from mclean's edition, new york. wednesday, may 28, 1788 hamilton to the people of the state of new york: we proceed now to an examination of the judiciary department of the proposed government. in unfolding the defects of the existing confederation, the utility and necessity of a federal judicature have been clearly pointed out. it is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. to these points, therefore, our observations shall be confined. the manner of constituting it seems to embrace these several objects: 1st. the mode of appointing the judges. 2d. the tenure by which they are to hold their places. 3d. the partition of the judiciary authority between different courts, and their relations to each other. first. as to the mode of appointing the judges; this is the same with that of appointing the officers of the union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition. second. as to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility. according to the plan of the convention, all judges who may be appointed by the united states are to hold their offices during good behavior; which is conformable to the most approved of the state constitutions and among the rest, to that of this state. its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. the standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. in a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. and it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. the executive not only dispenses the honors, but holds the sword of the community. the legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. the judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. it may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. this simple view of the matter suggests several important consequences. it proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power(1); that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. it equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; i mean so long as the judiciary remains truly distinct from both the legislature and the executive. for i agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."(2) and it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. the complete independence of the courts of justice is peculiarly essential in a limited constitution. by a limited constitution, i understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. without this, all the reservations of particular rights or privileges would amount to nothing. some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. it is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. as this doctrine is of great importance in all the american constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. there is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. no legislative act, therefore, contrary to the constitution, can be valid. to deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. if it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. it is not otherwise to be supposed, that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. it is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. the interpretation of the laws is the proper and peculiar province of the courts. a constitution is, in fact, and must be regarded by the judges, as a fundamental law. it therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. if there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. it only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the constitution, the judges ought to be governed by the latter rather than the former. they ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. this exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. it not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. in such a case, it is the province of the courts to liquidate and fix their meaning and operation. so far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. the rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. but this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. it is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. they thought it reasonable, that between the interfering acts of an equal authority, that which was the last indication of its will should have the preference. but in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. they teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. it can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. this might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. the courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body. the observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. if, then, the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. this independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. though i trust the friends of the proposed constitution will never concur with its enemies,(3) in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. but it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community. but it is not with a view to infractions of the constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. these sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. it not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. this is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. the benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. and every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. that inflexible and uniform adherence to the rights of the constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. if the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws. there is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. it has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. and making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. these considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. in the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject. upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. the experience of great britain affords an illustrious comment on the excellence of the institution. publius 1. the celebrated montesquieu, speaking of them, says: "of the three powers above mentioned, the judiciary is next to nothing."--spirit of laws. vol. i, page 186. 2. idem, page 181. 3. vide protest of the minority of the convention of pennsylvania, martin's speech, etc. federalist no. 79 the judiciary continued from mclean's edition, new york. wednesday, may 28, 1788 hamilton to the people of the state of new york: next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. the remark made in relation to the president is equally applicable here. in the general course of human nature, a power over a man's subsistence amounts to a power over his will. and we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. the enlightened friends to good government in every state, have seen cause to lament the want of precise and explicit precautions in the state constitutions on this head. some of these indeed have declared that permanent(1) salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. something still more positive and unequivocal has been evinced to be requisite. the plan of the convention accordingly has provided that the judges of the united states "shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." this, all circumstances considered, is the most eligible provision that could have been devised. it will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the constitution inadmissible. what might be extravagant to-day, might in half a century become penurious and inadequate. it was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. a man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. the clause which has been quoted combines both advantages. the salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. it will be observed that a difference has been made by the convention between the compensation of the president and of the judges, that of the former can neither be increased nor diminished; that of the latter can only not be diminished. this probably arose from the difference in the duration of the respective offices. as the president is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. but with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service. this provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the states in regard to their own judges. the precautions for their responsibility are comprised in the article respecting impeachments. they are liable to be impeached for malconduct by the house of representatives, and tried by the senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. this is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges. the want of a provision for removing the judges on account of inability has been a subject of complaint. but all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. the mensuration of the faculties of the mind has, i believe, no place in the catalogue of known arts. an attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. the result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification. the constitution of new york, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. no man can be a judge beyond sixty. i believe there are few at present who do not disapprove of this provision. there is no station, in relation to which it is less proper than to that of a judge. the deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. in a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench. publius 1. vide constitution of massachusetts, chapter 2, section 1, article 13. federalist no. 80 the powers of the judiciary from mclean's edition, new york. wednesday, may 28, 1788. hamilton to the people of the state of new york: to judge with accuracy of the proper extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects. it seems scarcely to admit of controversy, that the judiciary authority of the union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the united states, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of union; 3d, to all those in which the united states are a party; 4th, to all those which involve the peace of the confederacy, whether they relate to the intercourse between the united states and foreign nations, or to that between the states themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the state tribunals cannot be supposed to be impartial and unbiased. the first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. what, for instance, would avail restrictions on the authority of the state legislatures, without some constitutional mode of enforcing the observance of them? the states, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the union, and others with the principles of good government. the imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. no man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. this power must either be a direct negative on the state laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of union. there is no third course that i can imagine. the latter appears to have been thought by the convention preferable to the former, and, i presume, will be most agreeable to the states. as to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. if there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. the mere necessity of uniformity in the interpretation of the national laws, decides the question. thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed. still less need be said in regard to the third point. controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. any other plan would be contrary to reason, to precedent, and to decorum. the fourth point rests on this plain proposition, that the peace of the whole ought not to be left at the disposal of a part. the union will undoubtedly be answerable to foreign powers for the conduct of its members. and the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. as the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. this is not less essential to the preservation of the public faith, than to the security of the public tranquillity. a distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. the former kind may be supposed proper for the federal jurisdiction, the latter for that of the states. but it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. and a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. so great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals. the power of determining causes between two states, between one state and the citizens of another, and between the citizens of different states, is perhaps not less essential to the peace of the union than that which has been just examined. history gives us a horrid picture of the dissensions and private wars which distracted and desolated germany prior to the institution of the imperial chamber by maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. this was a court invested with authority to decide finally all differences among the members of the germanic body. a method of terminating territorial disputes between the states, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. but there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the union. to some of these we have been witnesses in the course of our past experience. it will readily be conjectured that i allude to the fraudulent laws which have been passed in too many of the states. and though the proposed constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. whatever practices may have a tendency to disturb the harmony between the states, are proper objects of federal superintendence and control. it may be esteemed the basis of the union, that "the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states." and if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the union will be entitled, the national judiciary ought to preside in all cases in which one state or its citizens are opposed to another state or its citizens. to secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different states and their citizens, and which, owing its official existence to the union, will never be likely to feel any bias inauspicious to the principles on which it is founded. the fifth point will demand little animadversion. the most bigoted idolizers of state authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. these so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. the most important part of them are, by the present confederation, submitted to federal jurisdiction. the reasonableness of the agency of the national courts in cases in which the state tribunals cannot be supposed to be impartial, speaks for itself. no man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. this principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different states and their citizens. and it ought to have the same operation in regard to some cases between citizens of the same state. claims to land under grants of different states, founded upon adverse pretensions of boundary, are of this description. the courts of neither of the granting states could be expected to be unbiased. the laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the state to which they belonged. and even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government. having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. it is to comprehend "all cases in law and equity arising under the constitution, the laws of the united states, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the united states shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands and grants of different states; and between a state or the citizens thereof and foreign states, citizens, and subjects." this constitutes the entire mass of the judicial authority of the union. let us now review it in detail. it is, then, to extend: first. to all cases in law and equity, arising under the constitution and the laws of the united states. this corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the united states. it has been asked, what is meant by "cases arising under the constitution," in contradiction from those "arising under the laws of the united states"? the difference has been already explained. all the restrictions upon the authority of the state legislatures furnish examples of it. they are not, for instance, to emit paper money; but the interdiction results from the constitution, and will have no connection with any law of the united states. should paper money, notwithstanding, be emited, the controversies concerning it would be cases arising under the constitution and not the laws of the united states, in the ordinary signification of the terms. this may serve as a sample of the whole. it has also been asked, what need of the word "equity". what equitable causes can grow out of the constitution and laws of the united states? there is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the states. it is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. in such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. agreements to convey lands claimed under the grants of different states, may afford another example of the necessity of an equitable jurisdiction in the federal courts. this reasoning may not be so palpable in those states where the formal and technical distinction between law and equity is not maintained, as in this state, where it is exemplified by every day's practice. the judiciary authority of the union is to extend: second. to treaties made, or which shall be made, under the authority of the united states, and to all cases affecting ambassadors, other public ministers, and consuls. these belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace. third. to cases of admiralty and maritime jurisdiction. these form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts. fourth. to controversies to which the united states shall be a party. these constitute the third of those classes. fifth. to controversies between two or more states; between a state and citizens of another state; between citizens of different states. these belong to the fourth of those classes, and partake, in some measure, of the nature of the last. sixth. to cases between the citizens of the same state, claiming lands under grants of different states. these fall within the last class, and are the only instances in which the proposed constitution directly contemplates the cognizance of disputes between the citizens of the same state. seventh. to cases between a state and the citizens thereof, and foreign states, citizens, or subjects. these have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature. from this review of the particular powers of the federal judiciary, as marked out in the constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. if some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. the possibility of particular mischiefs can never be viewed, by a wellinformed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. publius federalist no. 81 the judiciary continued, and the distribution of the judicial authority. from mclean's edition, new york. wednesday, may 28, 1788. hamilton to the people of the state of new york: let us now return to the partition of the judiciary authority between different courts, and their relations to each other. "the judicial power of the united states is" (by the plan of the convention) "to be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish."(1) that there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. the reasons for it have been assigned in another place, and are too obvious to need repetition. the only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. the same contradiction is observable in regard to this matter which has been remarked in several other cases. the very men who object to the senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body. the arguments, or rather suggestions, upon which this charge is founded, are to this effect: "the authority of the proposed supreme court of the united states, which is to be a separate and independent body, will be superior to that of the legislature. the power of construing the laws according to the spirit of the constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. this is as unprecedented as it is dangerous. in britain, the judicial power, in the last resort, resides in the house of lords, which is a branch of the legislature; and this part of the british government has been imitated in the state constitutions in general. the parliament of great britain, and the legislatures of the several states, can at any time rectify, by law, the exceptionable decisions of their respective courts. but the errors and usurpations of the supreme court of the united states will be uncontrollable and remediless." this, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact. in the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every state. i admit, however, that the constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the constitution. but this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited constitution; and as far as it is true, is equally applicable to most, if not to all the state governments. there can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion. but perhaps the force of the objection may be thought to consist in the particular organization of the supreme court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of great britain and that of the state. to insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. it shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a part of the legislative body. but though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. from a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. the same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the constitution in the character of legislators, would be disposed to repair the breach in the character of judges. nor is this all. every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. there is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. and there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. the members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. the habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity. these considerations teach us to applaud the wisdom of those states who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of new hampshire, massachusetts, pennsylvania, delaware, maryland, virginia, north carolina, south carolina, and georgia; and the preference which has been given to those models is highly to be commended. it is not true, in the second place, that the parliament of great britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the united states. the theory, neither of the british, nor the state constitutions, authorizes the revisal of a judicial sentence by a legislative act. nor is there any thing in the proposed constitution, more than in either of them, by which it is forbidden. in the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. a legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. this is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the state governments, as to the national government now under consideration. not the least difference can be pointed out in any view of the subject. it may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. this may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. and the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. this is alone a complete security. there never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. while this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the senate a court for the trial of impeachments. having now examined, and, i trust, removed the objections to the distinct and independent organization of the supreme court, i proceed to consider the propriety of the power of constituting inferior courts,(2) and the relations which will subsist between these and the former. the power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the supreme court in every case of federal cognizance. it is intended to enable the national government to institute or authorize, in each state or district of the united states, a tribunal competent to the determination of matters of national jurisdiction within its limits. but why, it is asked, might not the same purpose have been accomplished by the instrumentality of the state courts? this admits of different answers. though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national constitution. to confer the power of determining such causes upon the existing courts of the several states, would perhaps be as much "to constitute tribunals," as to create new courts with the like power. but ought not a more direct and explicit provision to have been made in favor of the state courts? there are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the states would be improper channels of the judicial authority of the union. state judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. and if there was a necessity for confiding the original cognizance of causes arising under those laws to them there would be a correspondent necessity for leaving the door of appeal as wide as possible. in proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. and well satisfied as i am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention. i should consider every thing calculated to give, in practice, an unrestrained course to appeals, as a source of public and private inconvenience. i am not sure, but that it will be found highly expedient and useful, to divide the united states into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every state. the judges of these courts, with the aid of the state judges, may hold circuits for the trial of causes in the several parts of the respective districts. justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. this plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed constitution. these reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the union. the supreme court is to be invested with original jurisdiction, only "in cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party." public ministers of every class are the immediate representatives of their sovereigns. all questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. in cases in which a state might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. though it may rather be a digression from the immediate subject of this paper, i shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. it has been suggested that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation. it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. this is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union. unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal. the circumstances which are necessary to produce an alienation of state sovereignty were discussed in considering the article of taxation, and need not be repeated here. a recurrence to the principles there established will satisfy us, that there is no color to pretend that the state governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. the contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. they confer no right of action, independent of the sovereign will. to what purpose would it be to authorize suits against states for the debts they owe? how could recoveries be enforced? it is evident, it could not be done without waging war against the contracting state; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable. let us resume the train of our observations. we have seen that the original jurisdiction of the supreme court would be confined to two classes of causes, and those of a nature rarely to occur. in all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the supreme court would have nothing more than an appellate jurisdiction, "with such exceptions and under such regulations as the congress shall make." the propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. some well-intentioned men in this state, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. a technical sense has been affixed to the term "appellate," which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. but if i am not misinformed, the same meaning would not be given to it in any part of new england. there an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. the word "appellate," therefore, will not be understood in the same sense in new england as in new york, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular state. the expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. the mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. if, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the supreme court. but it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the supreme court. why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this state, that the latter has jurisdiction of the fact as well as the law? it is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it.(3) this is jurisdiction of both fact and law; nor is it even possible to separate them. though the common-law courts of this state ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. i contend, therefore, on this ground, that the expressions, "appellate jurisdiction, both as to law and fact," do not necessarily imply a re-examination in the supreme court of facts decided by juries in the inferior courts. the following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. the appellate jurisdiction of the supreme court (it may have been argued) will extend to causes determinable in different modes, some in the course of the common law, others in the course of the civil law. in the former, the revision of the law only will be, generally speaking, the proper province of the supreme court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. it is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. it will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the states all causes are tried in this mode(4); and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. to avoid all inconveniencies, it will be safest to declare generally, that the supreme court shall possess appellate jurisdiction both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the national legislature may prescribe. this will enable the government to modify it in such a manner as will best answer the ends of public justice and security. this view of the matter, at any rate, puts it out of all doubt that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. the legislature of the united states would certainly have full power to provide, that in appeals to the supreme court there should be no re-examination of facts where they had been tried in the original causes by juries. this would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial. the amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the supreme court, and the rest consigned to the subordinate tribunals; that the supreme court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source. publius 1. article 3, sec. 1. 2. this power has been absurdly represented as intended to abolish all the county courts in the several states, which are commonly called inferior courts. but the expressions of the constitution are, to constitute "tribunals inferior to the supreme court"; and the evident design of the provision is to enable the institution of local courts, subordinate to the supreme, either in states or larger districts. it is ridiculous to imagine that county courts were in contemplation. 3. this word is composed of jus and dictio, juris dictio or a speaking and pronouncing of the law. 4. i hold that the states will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper. federalist no. 82 the judiciary continued. from mclean's edition, new york. wednesday, may 28, 1788 hamilton to the people of the state of new york: the erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. 'tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent whole. such questions, accordingly, have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. the principal of these respect the situation of the state courts in regard to those causes which are to be submitted to federal jurisdiction. is this to be exclusive, or are those courts to possess a concurrent jurisdiction? if the latter, in what relation will they stand to the national tribunals? these are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention. the principles established in a former paper(1) teach us that the states will retain all pre-existing authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the union; or where a particular authority is granted to the union, and the exercise of a like authority is prohibited to the states; or where an authority is granted to the union, with which a similar authority in the states would be utterly incompatible. though these principles may not apply with the same force to the judiciary as to the legislative power, yet i am inclined to think that they are, in the main, just with respect to the former, as well as the latter. and under this impression, i shall lay it down as a rule, that the state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. the only thing in the proposed constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage: "the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as the congress shall from time to time ordain and establish." this might either be construed to signify, that the supreme and subordinate courts of the union should alone have the power of deciding those causes to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one supreme court, and as many subordinate courts as congress should think proper to appoint; or in other words, that the united states should exercise the judicial power with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. the first excludes, the last admits, the concurrent jurisdiction of the state tribunals; and as the first would amount to an alienation of state power by implication, the last appears to me the most natural and the most defensible construction. but this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the state courts have previous cognizance. it is not equally evident in relation to cases which may grow out of, and be peculiar to, the constitution to be established; for not to allow the state courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority. i mean not therefore to contend that the united states, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but i hold that the state courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and i am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. this i infer from the nature of judiciary power, and from the general genius of the system. the judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. those of japan, not less than of new york, may furnish the objects of legal discussion to our courts. when in addition to this we consider the state governments and the national governments, as they truly are, in the light of kindred systems, and as parts of one whole, the inference seems to be conclusive, that the state courts would have a concurrent jurisdiction in all cases arising under the laws of the union, where it was not expressly prohibited. here another question occurs: what relation would subsist between the national and state courts in these instances of concurrent jurisdiction? i answer, that an appeal would certainly lie from the latter, to the supreme court of the united states. the constitution in direct terms gives an appellate jurisdiction to the supreme court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. the objects of appeal, not the tribunals from which it is to be made, are alone contemplated. from this circumstance, and from the reason of the thing, it ought to be construed to extend to the state tribunals. either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the union may be eluded at the pleasure of every plaintiff or prosecutor. neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. nor do i perceive any foundation for such a supposition. agreeably to the remark already made, the national and state systems are to be regarded as one whole. the courts of the latter will of course be natural auxiliaries to the execution of the laws of the union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions. the evident aim of the plan of the convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the union. to confine, therefore, the general expressions giving appellate jurisdiction to the supreme court, to appeals from the subordinate federal courts, instead of allowing their extension to the state courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation. but could an appeal be made to lie from the state courts to the subordinate federal judicatories? this is another of the questions which have been raised, and of greater difficulty than the former. the following considerations countenance the affirmative. the plan of the convention, in the first place, authorizes the national legislature "to constitute tribunals inferior to the supreme court."(2) it declares, in the next place, that "the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as congress shall ordain and establish"; and it then proceeds to enumerate the cases to which this judicial power shall extend. it afterwards divides the jurisdiction of the supreme court into original and appellate, but gives no definition of that of the subordinate courts. the only outlines described for them, are that they shall be "inferior to the supreme court," and that they shall not exceed the specified limits of the federal judiciary. whether their authority shall be original or appellate, or both, is not declared. all this seems to be left to the discretion of the legislature. and this being the case, i perceive at present no impediment to the establishment of an appeal from the state courts to the subordinate national tribunals; and many advantages attending the power of doing it may be imagined. it would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the supreme court. the state tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases in which they may be deemed proper, instead of being carried to the supreme court, may be made to lie from the state courts to district courts of the union. publius 1. no. 31. 2. sec. 8, art. 1. federalist no. 83 the judiciary continued in relation to trial by jury from mclean's edition, new york. wednesday, may 28, 1788 hamilton to the people of the state of new york: the objection to the plan of the convention, which has met with most success in this state, and perhaps in several of the other states, is that relative to the want of a constitutional provision for the trial by jury in civil cases. the disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. the mere silence of the constitution in regard to civil causes, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to criminal causes. to argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the existence of matter, or to demonstrate any of those propositions which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning. with regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only not provided for, is entirely abolished. every man of discernment must at once perceive the wide difference between silence and abolition. but as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken. the maxims on which they rely are of this nature: "a specification of particulars is an exclusion of generals"; or, "the expression of one thing is the exclusion of another." hence, say they, as the constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter. the rules of legal interpretation are rules of common sense, adopted by the courts in the construction of the laws. the true test, therefore, of a just application of them is its conformity to the source from which they are derived. this being the case, let me ask if it is consistent with common-sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? if such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others. a power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. this discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. the specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge the power of the legislature to exercise that mode if it should be thought proper. the pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation. from these observations this conclusion results: that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common-sense, and therefore not admissible. even if these maxims had a precise technical sense, corresponding with the idea of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. in relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction. having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. this will be best done by examples. the plan of the convention declares that the power of congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. this specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. in like manner the judicial authority of the federal judicatures is declared by the constitution to comprehend certain cases particularly specified. the expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. these examples are sufficient to elucidate the maxims which have been mentioned, and to designate the manner in which they should be used. but that there may be no misapprehensions upon this subject, i shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them. let us suppose that by the laws of this state a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. in such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance, because the woman having no previous power to alienate her property, the specification determines the particular mode which she is, for that purpose, to avail herself of. but let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value? the position is too absurd to merit a refutation, and yet this is precisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in cases of a criminal nature. from these observations it must appear unquestionably true, that trial by jury is in no case abolished by the proposed constitution, and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the state constitutions, and will be in no degree altered or influenced by the adoption of the plan under consideration. the foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the state courts only, and in the manner which the state constitutions and laws prescribe. all land causes, except where claims under the grants of different states come into question, and all other controversies between the citizens of the same state, unless where they depend upon positive violations of the articles of union, by acts of the state legislatures, will belong exclusively to the jurisdiction of the state tribunals. add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected to any great extent by the proposed alteration in our system of government. the friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. for my own part, the more the operation of the institution has fallen under my observation, the more reason i have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. but i must acknowledge that i cannot readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases. arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. the trial by jury in criminal cases, aided by the habeas corpus act, seems therefore to be alone concerned in the question. and both of these are provided for, in the most ample manner, in the plan of the convention. it has been observed, that trial by jury is a safeguard against an oppressive exercise of the power of taxation. this observation deserves to be canvassed. it is evident that it can have no influence upon the legislature, in regard to the amount of taxes to be laid, to the objects upon which they are to be imposed, or to the rule by which they are to be apportioned. if it can have any influence, therefore, it must be upon the mode of collection, and the conduct of the officers intrusted with the execution of the revenue laws. as to the mode of collection in this state, under our own constitution, the trial by jury is in most cases out of use. the taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. and it is acknowledged on all hands, that this is essential to the efficacy of the revenue laws. the dilatory course of a trial at law to recover the taxes imposed on individuals, would neither suit the exigencies of the public nor promote the convenience of the citizens. it would often occasion an accumulation of costs, more burdensome than the original sum of the tax to be levied. and as to the conduct of the officers of the revenue, the provision in favor of trial by jury in criminal cases, will afford the security aimed at. wilful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case. the excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. the strongest argument in its favor is, that it is a security against corruption. as there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. the force of this consideration is, however, diminished by others. the sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. it is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. in the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. but making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. it greatly multiplies the impediments to its success. as matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. by increasing the obstacles to success, it discourages attempts to seduce the integrity of either. the temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes. notwithstanding, therefore, the doubts i have expressed, as to the essentiality of trial by jury in civil cases to liberty, i admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that on this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended. there is, however, in all cases, great difficulty in this; and men not blinded by enthusiasm must be sensible that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other, that difficulty must be not a little augmented. for my own part, at every new view i take of the subject, i become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention. the great difference between the limits of the jury trial in different states is not generally understood; and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point, an explanation of it is necessary. in this state, our judicial establishments resemble, more nearly than in any other, those of great britain. we have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in england), a court of admiralty and a court of chancery. in the courts of common law only, the trial by jury prevails, and this with some exceptions. in all the others a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury.(1) in new jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. in that state the courts of common law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in new jersey than in new york. in pennsylvania, this is perhaps still more the case, for there is no court of chancery in that state, and its common-law courts have equity jurisdiction. it has a court of admiralty, but none of probates, at least on the plan of ours. delaware has in these respects imitated pennsylvania. maryland approaches more nearly to new york, as does also virginia, except that the latter has a plurality of chancellors. north carolina bears most affinity to pennsylvania; south carolina to virginia. i believe, however, that in some of those states which have distinct courts of admiralty, the causes depending in them are triable by juries. in georgia there are none but common-law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. in connecticut, they have no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. their common-law courts have admiralty and, to a certain extent, equity jurisdiction. in cases of importance, their general assembly is the only court of chancery. in connecticut, therefore, the trial by jury extends in practice further than in any other state yet mentioned. rhode island is, i believe, in this particular, pretty much in the situation of connecticut. massachusetts and new hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. in the four eastern states, the trial by jury not only stands upon a broader foundation than in the other states, but it is attended with a peculiarity unknown, in its full extent, to any of them. there is an appeal of course from one jury to another, till there have been two verdicts out of three on one side. from this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several states; and from this fact these obvious reflections flow: first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the states; and secondly, that more or at least as much might have been hazarded by taking the system of any one state for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation. the propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. the minority of pennsylvania have proposed this mode of expression for the purpose--"trial by jury shall be as heretofore"--and this i maintain would be senseless and nugatory. the united states, in their united or collective capacity, are the object to which all general provisions in the constitution must necessarily be construed to refer. now it is evident that though trial by jury, with various limitations, is known in each state individually, yet in the united states, as such, it is at this time altogether unknown, because the present federal government has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term heretofore could relate. it would therefore be destitute of a precise meaning, and inoperative from its uncertainty. as, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if i apprehend that intent rightly, it would be in itself inexpedient. i presume it to be, that causes in the federal courts should be tried by jury, if, in the state where the courts sat, that mode of trial would obtain in a similar case in the state courts; that is to say, admiralty causes should be tried in connecticut by a jury, in new york without one. the capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every wellregulated judgment towards it. whether the cause should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties. but this is not, in my estimation, the greatest objection. i feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. i think it so particularly in cases which concern the public peace with foreign nations--that is, in most cases where the question turns wholly on the laws of nations. of this nature, among others, are all prize causes. juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. there would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable. it will add great weight to this remark, in relation to prize causes, to mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of europe, and that, pursuant to such treaties, they are determinable in great britain, in the last resort, before the king himself, in his privy council, where the fact, as well as the law, undergoes a re-examination. this alone demonstrates the impolicy of inserting a fundamental provision in the constitution which would make the state systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable. my convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. the great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions(2) to general rules. to unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a special determination; while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. they require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. the simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars. it is true that the separation of the equity from the legal jurisdiction is peculiar to the english system of jurisprudence: which is the model that has been followed in several of the states. but it is equally true that the trial by jury has been unknown in every case in which they have been united. and the separation is essential to the preservation of that institution in its pristine purity. the nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this state, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode. these appeared to be conclusive reasons against incorporating the systems of all the states, in the formation of the national judiciary, according to what may be conjectured to have been the attempt of the pennsylvania minority. let us now examine how far the proposition of massachusetts is calculated to remedy the supposed defect. it is in this form: "in civil actions between citizens of different states, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them request it." this, at best, is a proposition confined to one description of causes; and the inference is fair, either that the massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. if the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. if the last, it affords a strong corroboration of the extreme difficulty of the thing. but this is not all: if we advert to the observations already made respecting the courts that subsist in the several states of the union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize that species of causes which it is intended shall be entitled to a trial by jury. in this state, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in england upon that subject. in many of the other states the boundaries are less precise. in some of them every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. hence the same irregularity and confusion would be introduced by a compliance with this proposition, that i have already noticed as resulting from the regulation proposed by the pennsylvania minority. in one state a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another state, a cause exactly similar to the other, must be decided without the intervention of a jury, because the state judicatories varied as to common-law jurisdiction. it is obvious, therefore, that the massachusetts proposition, upon this subject cannot operate as a general regulation, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different states. to devise a plan of that kind is a task arduous in itself, and which it would require much time and reflection to mature. it would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the states in the union, or that would perfectly quadrate with the several state institutions. it may be asked, why could not a reference have been made to the constitution of this state, taking that, which is allowed by me to be a good one, as a standard for the united states? i answer that it is not very probable the other states would entertain the same opinion of our institutions as we do ourselves. it is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. if the plan of taking one state as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government; and it must be uncertain which of the states would have been taken as the model. it has been shown that many of them would be improper ones. and i leave it to conjecture, whether, under all circumstances, it is most likely that new york, or some other state, would have been preferred. but admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other states, at the partiality which had been shown to the institutions of one. the enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment. to avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. for this i believe, no precedent is to be found in any member of the union; and the considerations which have been stated in discussing the proposition of the minority of pennsylvania, must satisfy every sober mind that the establishment of the trial by jury in all cases would have been an unpardonable error in the plan. in short, the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government. i cannot but persuade myself, on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds the apprehensions they may have entertained on the point. they have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the state constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished(3) by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a constitution for the united states. the best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining questions of property preferable in many cases in which that mode of trial now prevails. for my part, i acknowledge myself to be convinced that even in this state it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. it is conceded by all reasonable men that it ought not to obtain in all cases. the examples of innovations which contract its ancient limits, as well in these states as in great britain, afford a strong presumption that its former extent has been found inconvenient, and give room to suppose that future experience may discover the propriety and utility of other exceptions. i suspect it to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the legislature. this is now clearly understood to be the case in great britain, and it is equally so in the state of connecticut; and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this state since the revolution, though provided for by a positive article of our constitution, than has happened in the same time either in connecticut or great britain. it may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career. the truth is that the general genius of a government is all that can be substantially relied upon for permanent effects. particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them; and the want of them will never be, with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good government. it certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a constitution which expressly establishes the trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that connecticut, which has been always regarded as the most popular state in the union, can boast of no constitutional provision for either. publius 1. it has been erroneously insinuated with regard to the court of chancery, that this court generally tries disputed facts by a jury. the truth is, that references to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question. 2. it is true that the principles by which that relief is governed are now reduced to a regular system; but it is not the less true that they are in the main applicable to special circumstances, which form exceptions to general rules. 3. vide no. 81, in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the supreme court, is examined and refuted. federalist no. 84 certain general and miscellaneous objections to the constitution considered and answered. from mclean's edition, new york. wednesday, may 28, 1788 hamilton to the people of the state of new york: in the course of the foregoing review of the constitution, i have taken notice of, and endeavored to answer most of the objections which have appeared against it. there, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. these shall now be discussed; but as the subject has been drawn into great length, i shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper. the most considerable of the remaining objections is that the plan of the convention contains no bill of rights. among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the states are in a similar predicament. i add that new york is of the number. and yet the opposers of the new system, in this state, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. to justify their zeal in this matter, they allege two things: one is that, though the constitution of new york has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the constitution adopts, in their full extent, the common and statute law of great britain, by which many other rights, not expressed in it, are equally secured. to the first i answer, that the constitution proposed by the convention contains, as well as the constitution of this state, a number of such provisions. independent of those which relate to the structure of the government, we find the following: article 1, section 3, clause 7--"judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the united states; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." section 9, of the same article, clause 2--"the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." clause 3--"no bill of attainder or ex-post-facto law shall be passed." clause 7--"no title of nobility shall be granted by the united states; and no person holding any office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." article 3, section 2, clause 3--"the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed." section 3, of the same article--"treason against the united states shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." and clause 3, of the same section--"the congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." it may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this state. the establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of titles of nobility, to which we have no corresponding provision in our constitution, are perhaps greater securities to liberty and republicanism than any it contains. the creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. the observations of the judicious blackstone,(1) in reference to the latter, are well worthy of recital: "to bereave a man of life, (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." and as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the bulwark of the british constitution."(2) nothing need be said to illustrate the importance of the prohibition of titles of nobility. this may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people. to the second that is, to the pretended establishment of the common and state law by the constitution, i answer, that they are expressly made subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." they are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. the only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the revolution. this consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself. it has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. such was magna charta, obtained by the barons, sword in hand, from king john. such were the subsequent confirmations of that charter by succeeding princes. such was the petition of right assented to by charles i., in the beginning of his reign. such, also, was the declaration of right presented by the lords and commons to the prince of orange in 1688, and afterwards thrown into the form of an act of parliament called the bill of rights. it is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "we, the people of the united states, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america." here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government. but a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. if, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this state. but the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired. i go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. they would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. for why declare that things shall not be done which there is no power to do? why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? i will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. they might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. this may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. on the subject of the liberty of the press, as much as has been said, i cannot forbear adding a remark or two: in the first place, i observe, that there is not a syllable concerning it in the constitution of this state; in the next, i contend, that whatever has been said about it in that of any other state, amounts to nothing. what signifies a declaration, that "the liberty of the press shall be inviolably preserved"? what is the liberty of the press? who can give it any definition which would not leave the utmost latitude for evasion? i hold it to be impracticable; and from this i infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.(3) and here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights. there remains but one other view of this matter to conclude the point. the truth is, after all the declamations we have heard, that the constitution is itself, in every rational sense, and to every useful purpose, a bill of rights. the several bills of rights in great britain form its constitution, and conversely the constitution of each state is its bill of rights. and the proposed constitution, if adopted, will be the bill of rights of the union. is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? this is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the state constitutions. is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? this we have seen has also been attended to, in a variety of cases, in the same plan. adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. it may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. it certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. and hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: "it is improper (say the objectors) to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the states to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body." this argument, if it proves any thing, proves that there ought to be no general government whatever. for the powers which, it seems to be agreed on all hands, ought to be vested in the union, cannot be safely intrusted to a body which is not under every requisite control. but there are satisfactory reasons to show that the objection is in reality not well founded. there is in most of the arguments which relate to distance a palpable illusion of the imagination. what are the sources of information by which the people in montgomery county must regulate their judgment of the conduct of their representatives in the state legislature? of personal observation they can have no benefit. this is confined to the citizens on the spot. they must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? evidently from the complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. this does not apply to montgomery county only, but to all the counties at any considerable distance from the seat of government. it is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the state governments. the executive and legislative bodies of each state will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. and we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their state representatives. it ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. the public papers will be expeditious messengers of intelligence to the most remote inhabitants of the union. among the many curious objections which have appeared against the proposed constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due to the united states. this has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. the newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. in addition to the remarks i have made upon the subject in another place, i shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that "states neither lose any of their rights, nor are discharged from any of their obligations, by a change in the form of their civil government."(4) the last objection of any consequence, which i at present recollect, turns upon the article of expense. if it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan. the great bulk of the citizens of america are with reason convinced, that union is the basis of their political happiness. men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government--a single body being an unsafe depositary of such ample authorities. in conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. the two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which congress, under the existing confederation, may be composed. it is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. it is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people. whence is the dreaded augmentation of expense to spring? one source indicated, is the multiplication of offices under the new government. let us examine this a little. it is evident that the principal departments of the administration under the present government, are the same which will be required under the new. there are now a secretary of war, a secretary of foreign affairs, a secretary for domestic affairs, a board of treasury, consisting of three persons, a treasurer, assistants, clerks, etc. these officers are indispensable under any system, and will suffice under the new as well as the old. as to ambassadors and other ministers and agents in foreign countries, the proposed constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. as to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. it will be in most cases nothing more than an exchange of state for national officers. in the collection of all duties, for instance, the persons employed will be wholly of the latter description. the states individually will stand in no need of any for this purpose. what difference can it make in point of expense to pay officers of the customs appointed by the state or by the united states? there is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former. where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? the chief item which occurs to me respects the support of the judges of the united states. i do not add the president, because there is now a president of congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the president of the united states. the support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. but upon no reasonable plan can it amount to a sum which will be an object of material consequence. let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. the first thing which presents itself is that a great part of the business which now keeps congress sitting through the year will be transacted by the president. even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the senate, and subject to their final concurrence. hence it is evident that a portion of the year will suffice for the session of both the senate and the house of representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. the extra business of treaties and appointments may give this extra occupation to the senate. from this circumstance we may infer that, until the house of representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future congress. but there is another circumstance of great importance in the view of economy. the business of the united states has hitherto occupied the state legislatures, as well as congress. the latter has made requisitions which the former have had to provide for. hence it has happened that the sessions of the state legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the states. more than half their time has been frequently employed in matters which related to the united states. now the members who compose the legislatures of the several states amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. the congress under the proposed government will do all the business of the united states themselves, without the intervention of the state legislatures, who thenceforth will have only to attend to the affairs of their particular states, and will not have to sit in any proportion as long as they have heretofore done. this difference in the time of the sessions of the state legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system. the result from these observations is that the sources of additional expense from the establishment of the proposed constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the union. publius 1. vide blackstone's commentaries, vol. 1, p. 136. 2. idem, vol. 4, p. 438. 3. to show that there is a power in the constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. it is said that duties may be laid upon the publications so high as to amount to a prohibition. i know not by what logic it could be maintained, that the declarations in the state constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the state legislatures. it cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. we know that newspapers are taxed in great britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. and if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. the same invasions of it may be effected under the state constitutions which contain those declarations through the means of taxation, as under the proposed constitution, which has nothing of the kind. it would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained. 4. vide rutherford's institutes, vol. 2, book ii, chapter x, sections xiv and xv. vide also grotius, book ii, chapter ix, sections viii and ix. federalist no. 85 concluding remarks from mclean's edition, new york. wednesday, may 28, 1788 hamilton to the people of the state of new york: according to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion two points: "the analogy of the proposed government to your own state constitution," and "the additional security which its adoption will afford to republican government, to liberty, and to property." but these heads have been so fully anticipated and exhausted in the progress of the work, that it would now scarcely be possible to do any thing more than repeat, in a more dilated form, what has been heretofore said, which the advanced stage of the question, and the time already spent upon it, conspire to forbid. it is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this state holds, not less with regard to many of the supposed defects, than to the real excellences of the former. among the pretended defects are the re-eligibility of the executive, the want of a council, the omission of a formal bill of rights, the omission of a provision respecting the liberty of the press. these and several others which have been noted in the course of our inquiries are as much chargeable on the existing constitution of this state, as on the one proposed for the union; and a man must have slender pretensions to consistency, who can rail at the latter for imperfections which he finds no difficulty in excusing in the former. nor indeed can there be a better proof of the insincerity and affectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally or perhaps more vulnerable. the additional securities to republican government, to liberty and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the union will impose on local factions and insurrections, and on the ambition of powerful individuals in single states, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportunities to foreign intrigue, which the dissolution of the confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the states in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the state governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals. thus have i, fellow-citizens, executed the task i had assigned to myself; with what success, your conduct must determine. i trust at least you will admit that i have not failed in the assurance i gave you respecting the spirit with which my endeavors should be conducted. i have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and which have been not a little provoked by the language and conduct of the opponents of the constitution. the charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. the perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. and the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men. it is not impossible that these circumstances may have occasionally betrayed me into intemperances of expression which i did not intend; it is certain that i have frequently felt a struggle between sensibility and moderation; and if the former has in some instances prevailed, it must be my excuse that it has been neither often nor much. let us now pause and ask ourselves whether, in the course of these papers, the proposed constitution has not been satisfactorily vindicated from the aspersions thrown upon it; and whether it has not been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. this is a duty from which nothing can give him a dispensation. 't is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. no partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation; and let him remember that a majority of america has already given its sanction to the plan which he is to approve or reject. i shall not dissemble that i feel an entire confidence in the arguments which recommend the proposed system to your adoption, and that i am unable to discern any real force in those by which it has been opposed. i am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced. concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. "why," say they, "should we adopt an imperfect thing? why not amend it and make it perfect before it is irrevocably established?" this may be plausible enough, but it is only plausible. in the first place i remark, that the extent of these concessions has been greatly exaggerated. they have been stated as amounting to an admission that the plan is radically defective, and that without material alterations the rights and the interests of the community cannot be safely confided to it. this, as far as i have understood the meaning of those who make the concessions, is an entire perversion of their sense. no advocate of the measure can be found, who will not declare as his sentiment, that the system, though it may not be perfect in every part, is, upon the whole, a good one; is the best that the present views and circumstances of the country will permit; and is such an one as promises every species of security which a reasonable people can desire. i answer in the next place, that i should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. i never expect to see a perfect work from imperfect man. the result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. the compacts which are to embrace thirteen distinct states in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. how can perfection spring from such materials? the reasons assigned in an excellent little pamphlet lately published in this city,(1) are unanswerable to show the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded. i will not repeat the arguments there used, as i presume the production itself has had an extensive circulation. it is certainly well worthy the perusal of every friend to his country. there is, however, one point of light in which the subject of amendments still remains to be considered, and in which it has not yet been exhibited to public view. i cannot resolve to conclude without first taking a survey of it in this aspect. it appears to me susceptible of absolute demonstration, that it will be far more easy to obtain subsequent than previous amendments to the constitution. the moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each state. to its complete establishment throughout the union, it will therefore require the concurrence of thirteen states. if, on the contrary, the constitution proposed should once be ratified by all the states as it stands, alterations in it may at any time be effected by nine states. here, then, the chances are as thirteen to nine(2) in favor of subsequent amendment, rather than of the original adoption of an entire system. this is not all. every constitution for the united states must inevitably consist of a great variety of particulars, in which thirteen independent states are to be accommodated in their interests or opinions of interest. we may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. many of those who form a majority on one question, may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act. the degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties. but every amendment to the constitution, if once established, would be a single proposition, and might be brought forward singly. there would then be no necessity for management or compromise, in relation to any other point--no giving nor taking. the will of the requisite number would at once bring the matter to a decisive issue. and consequently, whenever nine, or rather ten states, were united in the desire of a particular amendment, that amendment must infallibly take place. there can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete constitution. in opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. for my own part i acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, i think there is no weight in the observation just stated. i also think there is little weight in it on another account. the intrinsic difficulty of governing thirteen states at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. but there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. it is this that the national rulers, whenever nine states concur, will have no option upon the subject. by the fifth article of the plan, the congress will be obliged "on the application of the legislatures of two thirds of the states (which at present amount to nine), to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the constitution, when ratified by the legislatures of three fourths of the states, or by conventions in three fourths thereof." the words of this article are peremptory. the congress "shall call a convention." nothing in this particular is left to the discretion of that body. and of consequence, all the declamation about the disinclination to a change vanishes in air. nor however difficult it may be supposed to unite two thirds or three fourths of the state legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. we may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority. if the foregoing argument is a fallacy, certain it is that i am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object. the zeal for attempts to amend, prior to the establishment of the constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious: "to balance a large state or society (says he), whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. the judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments."(3) these judicious reflections contain a lesson of moderation to all the sincere lovers of the union, and ought to put them upon their guard against hazarding anarchy, civil war, a perpetual alienation of the states from each other, and perhaps the military despotism of a victorious demagogue, in the pursuit of what they are not likely to obtain, but from time and experience. it may be in me a defect of political fortitude, but i acknowledge that i cannot entertain an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. a nation, without a national government, is, in my view, an awful spectacle. the establishment of a constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which i look forward with trembling anxiety. i can reconcile it to no rules of prudence to let go the hold we now have, in so arduous an enterprise, upon seven out of the thirteen states, and after having passed over so considerable a part of the ground, to recommence the course. i dread the more the consequences of new attempts, because i know that powerful individuals, in this and in other states, are enemies to a general national government in every possible shape. publius 1. entitled "an address to the people of the state of new york." 2. it may rather be said ten, for though two thirds may set on foot the measure, three fourths must ratify. 3. hume's essays, vol. i, p. 128: "the rise of arts and sciences." this is the project gutenberg 1.5 release of the federalist papers federalist. no. 1 general introduction for the independent journal. hamilton to the people of the state of new york: after an unequivocal experience of the inefficacy of the subsisting federal government, you are called upon to deliberate on a new constitution for the united states of america. the subject speaks its own importance; comprehending in its consequences nothing less than the existence of the union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. it has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. if there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind. this idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. but this is a thing more ardently to be wished than seriously to be expected. the plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth. among the most formidable of the obstacles which the new constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every state to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the state establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government. it is not, however, my design to dwell upon observations of this nature. i am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable--the honest errors of minds led astray by preconceived jealousies and fears. so numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. this circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. and a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. for in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. heresies in either can rarely be cured by persecution. and yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. a torrent of angry and malignant passions will be let loose. to judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. an enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. an over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. it will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. on the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. history will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants. in the course of the preceding observations, i have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. you will, no doubt, at the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new constitution. yes, my countrymen, i own to you that, after having given it an attentive consideration, i am clearly of opinion it is your interest to adopt it. i am convinced that this is the safest course for your liberty, your dignity, and your happiness. i affect not reserves which i do not feel. i will not amuse you with an appearance of deliberation when i have decided. i frankly acknowledge to you my convictions, and i will freely lay before you the reasons on which they are founded. the consciousness of good intentions disdains ambiguity. i shall not, however, multiply professions on this head. my motives must remain in the depository of my own breast. my arguments will be open to all, and may be judged of by all. they shall at least be offered in a spirit which will not disgrace the cause of truth. i propose, in a series of papers, to discuss the following interesting particulars: the utility of the union to your political prosperity the insufficiency of the present confederation to preserve that union the necessity of a government at least equally energetic with the one proposed, to the attainment of this object the conformity of the proposed constitution to the true principles of republican government its analogy to your own state constitution and lastly, the additional security which its adoption will afford to the preservation of that species of government, to liberty, and to property. in the progress of this discussion i shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention. it may perhaps be thought superfluous to offer arguments to prove the utility of the union, a point, no doubt, deeply engraved on the hearts of the great body of the people in every state, and one, which it may be imagined, has no adversaries. but the fact is, that we already hear it whispered in the private circles of those who oppose the new constitution, that the thirteen states are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.1 this doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. for nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new constitution or a dismemberment of the union. it will therefore be of use to begin by examining the advantages of that union, the certain evils, and the probable dangers, to which every state will be exposed from its dissolution. this shall accordingly constitute the subject of my next address. publius. 1 the same idea, tracing the arguments to their consequences, is held out in several of the late publications against the new constitution. federalist no. 2 concerning dangers from foreign force and influence for the independent journal. jay to the people of the state of new york: when the people of america reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important that ever engaged their attention, the propriety of their taking a very comprehensive, as well as a very serious, view of it, will be evident. nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers. it is well worthy of consideration therefore, whether it would conduce more to the interest of the people of america that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government. it has until lately been a received and uncontradicted opinion that the prosperity of the people of america depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object. but politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the states into distinct confederacies or sovereignties. however extraordinary this new doctrine may appear, it nevertheless has its advocates; and certain characters who were much opposed to it formerly, are at present of the number. whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound policy. it has often given me pleasure to observe that independent america was not composed of detached and distant territories, but that one connected, fertile, widespreading country was the portion of our western sons of liberty. providence has in a particular manner blessed it with a variety of soils and productions, and watered it with innumerable streams, for the delight and accommodation of its inhabitants. a succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities. with equal pleasure i have as often taken notice that providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence. this country and this people seem to have been made for each other, and it appears as if it was the design of providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties. similar sentiments have hitherto prevailed among all orders and denominations of men among us. to all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection. as a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states. a strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. they formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and wellbalanced government for a free people. it is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer. this intelligent people perceived and regretted these defects. still continuing no less attached to union than enamored of liberty, they observed the danger which immediately threatened the former and more remotely the latter; and being pursuaded that ample security for both could only be found in a national government more wisely framed, they as with one voice, convened the late convention at philadelphia, to take that important subject under consideration. this convention composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and hearts of men, undertook the arduous task. in the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally, without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils. admit, for so is the fact, that this plan is only recommended, not imposed, yet let it be remembered that it is neither recommended to blind approbation, nor to blind reprobation; but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive. but this (as was remarked in the foregoing number of this paper) is more to be wished than expected, that it may be so considered and examined. experience on a former occasion teaches us not to be too sanguine in such hopes. it is not yet forgotten that well-grounded apprehensions of imminent danger induced the people of america to form the memorable congress of 1774. that body recommended certain measures to their constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the press began to teem with pamphlets and weekly papers against those very measures. not only many of the officers of government, who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences, or the undue influence of former attachments, or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their efforts to pursuade the people to reject the advice of that patriotic congress. many, indeed, were deceived and deluded, but the great majority of the people reasoned and decided judiciously; and happy they are in reflecting that they did so. they considered that the congress was composed of many wise and experienced men. that, being convened from different parts of the country, they brought with them and communicated to each other a variety of useful information. that, in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head. that they were individually interested in the public liberty and prosperity, and therefore that it was not less their inclination than their duty to recommend only such measures as, after the most mature deliberation, they really thought prudent and advisable. these and similar considerations then induced the people to rely greatly on the judgment and integrity of the congress; and they took their advice, notwithstanding the various arts and endeavors used to deter them from it. but if the people at large had reason to confide in the men of that congress, few of whom had been fully tried or generally known, still greater reason have they now to respect the judgment and advice of the convention, for it is well known that some of the most distinguished members of that congress, who have been since tried and justly approved for patriotism and abilities, and who have grown old in acquiring political information, were also members of this convention, and carried into it their accumulated knowledge and experience. it is worthy of remark that not only the first, but every succeeding congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of america depended on its union. to preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. with what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the union? or why is it suggested that three or four confederacies would be better than one? i am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the union rests on great and weighty reasons, which i shall endeavor to develop and explain in some ensuing papers. they who promote the idea of substituting a number of distinct confederacies in the room of the plan of the convention, seem clearly to foresee that the rejection of it would put the continuance of the union in the utmost jeopardy. that certainly would be the case, and i sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the union arrives, america will have reason to exclaim, in the words of the poet: "farewell! a long farewell to all my greatness." publius. federalist no. 3 the same subject continued (concerning dangers from foreign force and influence) for the independent journal. jay to the people of the state of new york: it is not a new observation that the people of any country (if, like the americans, intelligent and wellinformed) seldom adopt and steadily persevere for many years in an erroneous opinion respecting their interests. that consideration naturally tends to create great respect for the high opinion which the people of america have so long and uniformly entertained of the importance of their continuing firmly united under one federal government, vested with sufficient powers for all general and national purposes. the more attentively i consider and investigate the reasons which appear to have given birth to this opinion, the more i become convinced that they are cogent and conclusive. among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be the first. the safety of the people doubtless has relation to a great variety of circumstances and considerations, and consequently affords great latitude to those who wish to define it precisely and comprehensively. at present i mean only to consider it as it respects security for the preservation of peace and tranquillity, as well as against dangers from foreign arms and influence, as from dangers of the like kind arising from domestic causes. as the former of these comes first in order, it is proper it should be the first discussed. let us therefore proceed to examine whether the people are not right in their opinion that a cordial union, under an efficient national government, affords them the best security that can be devised against hostilities from abroad. the number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether real or pretended, which provoke or invite them. if this remark be just, it becomes useful to inquire whether so many just causes of war are likely to be given by united america as by disunited america; for if it should turn out that united america will probably give the fewest, then it will follow that in this respect the union tends most to preserve the people in a state of peace with other nations. the just causes of war, for the most part, arise either from violation of treaties or from direct violence. america has already formed treaties with no less than six foreign nations, and all of them, except prussia, are maritime, and therefore able to annoy and injure us. she has also extensive commerce with portugal, spain, and britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to attend to. it is of high importance to the peace of america that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate states or by three or four distinct confederacies. because when once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it; for, although town or country, or other contracted influence, may place men in state assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,--especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the states. hence, it will result that the administration, the political counsels, and the judicial decisions of the national government will be more wise, systematical, and judicious than those of individual states, and consequently more satisfactory with respect to other nations, as well as more safe with respect to us. because, under the national government, treaties and articles of treaties, as well as the laws of nations, will always be expounded in one sense and executed in the same manner,--whereas, adjudications on the same points and questions, in thirteen states, or in three or four confederacies, will not always accord or be consistent; and that, as well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws and interests which may affect and influence them. the wisdom of the convention, in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government, cannot be too much commended. because the prospect of present loss or advantage may often tempt the governing party in one or two states to swerve from good faith and justice; but those temptations, not reaching the other states, and consequently having little or no influence on the national government, the temptation will be fruitless, and good faith and justice be preserved. the case of the treaty of peace with britain adds great weight to this reasoning. because, even if the governing party in a state should be disposed to resist such temptations, yet as such temptations may, and commonly do, result from circumstances peculiar to the state, and may affect a great number of the inhabitants, the governing party may not always be able, if willing, to prevent the injustice meditated, or to punish the aggressors. but the national government, not being affected by those local circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others. so far, therefore, as either designed or accidental violations of treaties and the laws of nations afford just causes of war, they are less to be apprehended under one general government than under several lesser ones, and in that respect the former most favors the safety of the people. as to those just causes of war which proceed from direct and unlawful violence, it appears equally clear to me that one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter. because such violences are more frequently caused by the passions and interests of a part than of the whole; of one or two states than of the union. not a single indian war has yet been occasioned by aggressions of the present federal government, feeble as it is; but there are several instances of indian hostilities having been provoked by the improper conduct of individual states, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants. the neighborhood of spanish and british territories, bordering on some states and not on others, naturally confines the causes of quarrel more immediately to the borderers. the bordering states, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations; and nothing can so effectually obviate that danger as a national government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested. but not only fewer just causes of war will be given by the national government, but it will also be more in their power to accommodate and settle them amicably. they will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act advisedly than the offending state. the pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. the national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them. besides, it is well known that acknowledgments, explanations, and compensations are often accepted as satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a state or confederacy of little consideration or power. in the year 1685, the state of genoa having offended louis xiv., endeavored to appease him. he demanded that they should send their doge, or chief magistrate, accompanied by four of their senators, to france, to ask his pardon and receive his terms. they were obliged to submit to it for the sake of peace. would he on any occasion either have demanded or have received the like humiliation from spain, or britain, or any other powerful nation? publius. federalist no. 4 the same subject continued (concerning dangers from foreign force and influence) for the independent journal. jay to the people of the state of new york: my last paper assigned several reasons why the safety of the people would be best secured by union against the danger it may be exposed to by just causes of war given to other nations; and those reasons show that such causes would not only be more rarely given, but would also be more easily accommodated, by a national government than either by the state governments or the proposed little confederacies. but the safety of the people of america against dangers from foreign force depends not only on their forbearing to give just causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to invite hostility or insult; for it need not be observed that there are pretended as well as just causes of war. it is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. these and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people. but, independent of these inducements to war, which are more prevalent in absolute monarchies, but which well deserve our attention, there are others which affect nations as often as kings; and some of them will on examination be found to grow out of our relative situation and circumstances. with france and with britain we are rivals in the fisheries, and can supply their markets cheaper than they can themselves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish. with them and with most other european nations we are rivals in navigation and the carrying trade; and we shall deceive ourselves if we suppose that any of them will rejoice to see it flourish; for, as our carrying trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more their policy, to restrain than to promote it. in the trade to china and india, we interfere with more than one nation, inasmuch as it enables us to partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with commodities which we used to purchase from them. the extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this continent, because the cheapness and excellence of our productions, added to the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a greater share in the advantages which those territories afford, than consists with the wishes or policy of their respective sovereigns. spain thinks it convenient to shut the mississippi against us on the one side, and britain excludes us from the saint lawrence on the other; nor will either of them permit the other waters which are between them and us to become the means of mutual intercourse and traffic. from these and such like considerations, which might, if consistent with prudence, be more amplified and detailed, it is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets of other nations, and that we are not to expect that they should regard our advancement in union, in power and consequence by land and by sea, with an eye of indifference and composure. the people of america are aware that inducements to war may arise out of these circumstances, as well as from others not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. wisely, therefore, do they consider union and a good national government as necessary to put and keep them in such a situation as, instead of inviting war, will tend to repress and discourage it. that situation consists in the best possible state of defense, and necessarily depends on the government, the arms, and the resources of the country. as the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one good government is not, relative to the object in question, more competent than any other given number whatever. one government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the union they may be found. it can move on uniform principles of policy. it can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. in the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. it can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than state governments or separate confederacies can possibly do, for want of concert and unity of system. it can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the chief magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies. what would the militia of britain be if the english militia obeyed the government of england, if the scotch militia obeyed the government of scotland, and if the welsh militia obeyed the government of wales? suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of great britain would? we have heard much of the fleets of britain, and the time may come, if we are wise, when the fleets of america may engage attention. but if one national government, had not so regulated the navigation of britain as to make it a nursery for seamen--if one national government had not called forth all the national means and materials for forming fleets, their prowess and their thunder would never have been celebrated. let england have its navigation and fleet--let scotland have its navigation and fleet--let wales have its navigation and fleet--let ireland have its navigation and fleet--let those four of the constituent parts of the british empire be under four independent governments, and it is easy to perceive how soon they would each dwindle into comparative insignificance. apply these facts to our own case. leave america divided into thirteen or, if you please, into three or four independent governments--what armies could they raise and pay--what fleets could they ever hope to have? if one was attacked, would the others fly to its succor, and spend their blood and money in its defense? would there be no danger of their being flattered into neutrality by its specious promises, or seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see diminished? although such conduct would not be wise, it would, nevertheless, be natural. the history of the states of greece, and of other countries, abounds with such instances, and it is not improbable that what has so often happened would, under similar circumstances, happen again. but admit that they might be willing to help the invaded state or confederacy. how, and when, and in what proportion shall aids of men and money be afforded? who shall command the allied armies, and from which of them shall he receive his orders? who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people. but whatever may be our situation, whether firmly united under one national government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will act toward us accordingly. if they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. if, on the other hand, they find us either destitute of an effectual government (each state doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably discordant republics or confederacies, one inclining to britain, another to france, and a third to spain, and perhaps played off against each other by the three, what a poor, pitiful figure will america make in their eyes! how liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves. publius. federalist no. 5 the same subject continued (concerning dangers from foreign force and influence) for the independent journal. jay to the people of the state of new york: queen anne, in her letter of the 1st july, 1706, to the scotch parliament, makes some observations on the importance of the union then forming between england and scotland, which merit our attention. i shall present the public with one or two extracts from it: "an entire and perfect union will be the solid foundation of lasting peace: it will secure your religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. it must increase your strength, riches, and trade; and by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be enabled to resist all its enemies." "we most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only effectual way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will doubtless, on this occasion, use their utmost endeavors to prevent or delay this union." it was remarked in the preceding paper, that weakness and divisions at home would invite dangers from abroad; and that nothing would tend more to secure us from them than union, strength, and good government within ourselves. this subject is copious and cannot easily be exhausted. the history of great britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. we may profit by their experience without paying the price which it cost them. although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other. should the people of america divide themselves into three or four nations, would not the same thing happen? would not similar jealousies arise, and be in like manner cherished? instead of their being "joined in affection" and free from all apprehension of different "interests," envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all america, would be the only objects of their policy and pursuits. hence, like most other bordering nations, they would always be either involved in disputes and war, or live in the constant apprehension of them. the most sanguine advocates for three or four confederacies cannot reasonably suppose that they would long remain exactly on an equal footing in point of strength, even if it was possible to form them so at first; but, admitting that to be practicable, yet what human contrivance can secure the continuance of such equality? independent of those local circumstances which tend to beget and increase power in one part and to impede its progress in another, we must advert to the effects of that superior policy and good management which would probably distinguish the government of one above the rest, and by which their relative equality in strength and consideration would be destroyed. for it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years. whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. much time would not be necessary to enable her to discern these unfriendly dispositions. she would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied. the north is generally the region of strength, and many local circumstances render it probable that the most northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. no sooner would this become evident than the northern hive would excite the same ideas and sensations in the more southern parts of america which it formerly did in the southern parts of europe. nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors. they who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers; that they would neither love nor trust one another, but on the contrary would be a prey to discord, jealousy, and mutual injuries; in short, that they would place us exactly in the situations in which some nations doubtless wish to see us, viz., formidable only to each other. from these considerations it appears that those gentlemen are greatly mistaken who suppose that alliances offensive and defensive might be formed between these confederacies, and would produce that combination and union of wills of arms and of resources, which would be necessary to put and keep them in a formidable state of defense against foreign enemies. when did the independent states, into which britain and spain were formerly divided, combine in such alliance, or unite their forces against a foreign enemy? the proposed confederacies will be distinct nations. each of them would have its commerce with foreigners to regulate by distinct treaties; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different. different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations. hence it might and probably would happen that the foreign nation with whom the southern confederacy might be at war would be the one with whom the northern confederacy would be the most desirous of preserving peace and friendship. an alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith. nay, it is far more probable that in america, as in europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides. considering our distance from europe, it would be more natural for these confederacies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. and here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. how many conquests did the romans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect. let candid men judge, then, whether the division of america into any given number of independent sovereignties would tend to secure us against the hostilities and improper interference of foreign nations. publius. federalist no. 6 concerning dangers from dissensions between the states for the independent journal. hamilton to the people of the state of new york: the three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. i shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind--those which will in all probability flow from dissensions between the states themselves, and from domestic factions and convulsions. these have been already in some instances slightly anticipated; but they deserve a more particular and more full investigation. a man must be far gone in utopian speculations who can seriously doubt that, if these states should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. to presume a want of motives for such contests as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious. to look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages. the causes of hostility among nations are innumerable. there are some which have a general and almost constant operation upon the collective bodies of society. of this description are the love of power or the desire of pre-eminence and dominion--the jealousy of power, or the desire of equality and safety. there are others which have a more circumscribed though an equally operative influence within their spheres. such are the rivalships and competitions of commerce between commercial nations. and there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification. the celebrated pericles, in compliance with the resentment of a prostitute,1 at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the samnians. the same man, stimulated by private pique against the megarensians,2 another nation of greece, or to avoid a prosecution with which he was threatened as an accomplice of a supposed theft of the statuary phidias,3 or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity,4 or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the grecian annals by the name of the peloponnesian war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the athenian commonwealth. the ambitious cardinal, who was prime minister to henry viii., permitting his vanity to aspire to the triple crown,5 entertained hopes of succeeding in the acquisition of that splendid prize by the influence of the emperor charles v. to secure the favor and interest of this enterprising and powerful monarch, he precipitated england into a war with france, contrary to the plainest dictates of policy, and at the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels, as of europe in general. for if there ever was a sovereign who bid fair to realize the project of universal monarchy, it was the emperor charles v., of whose intrigues wolsey was at once the instrument and the dupe. the influence which the bigotry of one female,6 the petulance of another,7 and the cabals of a third,8 had in the contemporary policy, ferments, and pacifications, of a considerable part of europe, are topics that have been too often descanted upon not to be generally known. to multiply examples of the agency of personal considerations in the production of great national events, either foreign or domestic, according to their direction, would be an unnecessary waste of time. those who have but a superficial acquaintance with the sources from which they are to be drawn, will themselves recollect a variety of instances; and those who have a tolerable knowledge of human nature will not stand in need of such lights to form their opinion either of the reality or extent of that agency. perhaps, however, a reference, tending to illustrate the general principle, may with propriety be made to a case which has lately happened among ourselves. if shays had not been a desperate debtor, it is much to be doubted whether massachusetts would have been plunged into a civil war. but notwithstanding the concurring testimony of experience, in this particular, there are still to be found visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the states, though dismembered and alienated from each other. the genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. they will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord. is it not (we may ask these projectors in politics) the true interest of all nations to cultivate the same benevolent and philosophic spirit? if this be their true interest, have they in fact pursued it? has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice? have republics in practice been less addicted to war than monarchies? are not the former administered by men as well as the latter? are there not aversions, predilections, rivalships, and desires of unjust acquisitions, that affect nations as well as kings? are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? has commerce hitherto done anything more than change the objects of war? is not the love of wealth as domineering and enterprising a passion as that of power or glory? have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other? let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries. sparta, athens, rome, and carthage were all republics; two of them, athens and carthage, of the commercial kind. yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies of the same times. sparta was little better than a wellregulated camp; and rome was never sated of carnage and conquest. carthage, though a commercial republic, was the aggressor in the very war that ended in her destruction. hannibal had carried her arms into the heart of italy and to the gates of rome, before scipio, in turn, gave him an overthrow in the territories of carthage, and made a conquest of the commonwealth. venice, in later times, figured more than once in wars of ambition, till, becoming an object to the other italian states, pope julius ii. found means to accomplish that formidable league,9 which gave a deadly blow to the power and pride of this haughty republic. the provinces of holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous part in the wars of europe. they had furious contests with england for the dominion of the sea, and were among the most persevering and most implacable of the opponents of louis xiv. in the government of britain the representatives of the people compose one branch of the national legislature. commerce has been for ages the predominant pursuit of that country. few nations, nevertheless, have been more frequently engaged in war; and the wars in which that kingdom has been engaged have, in numerous instances, proceeded from the people. there have been, if i may so express it, almost as many popular as royal wars. the cries of the nation and the importunities of their representatives have, upon various occasions, dragged their monarchs into war, or continued them in it, contrary to their inclinations, and sometimes contrary to the real interests of the state. in that memorable struggle for superiority between the rival houses of austria and bourbon, which so long kept europe in a flame, it is well known that the antipathies of the english against the french, seconding the ambition, or rather the avarice, of a favorite leader,10 protracted the war beyond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court. the wars of these two last-mentioned nations have in a great measure grown out of commercial considerations,--the desire of supplanting and the fear of being supplanted, either in particular branches of traffic or in the general advantages of trade and navigation. from this summary of what has taken place in other countries, whose situations have borne the nearest resemblance to our own, what reason can we have to confide in those reveries which would seduce us into an expectation of peace and cordiality between the members of the present confederacy, in a state of separation? have we not already seen enough of the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses and evils incident to society in every shape? is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue? let the point of extreme depression to which our national dignity and credit have sunk, let the inconveniences felt everywhere from a lax and ill administration of government, let the revolt of a part of the state of north carolina, the late menacing disturbances in pennsylvania, and the actual insurrections and rebellions in massachusetts, declare--! so far is the general sense of mankind from corresponding with the tenets of those who endeavor to lull asleep our apprehensions of discord and hostility between the states, in the event of disunion, that it has from long observation of the progress of society become a sort of axiom in politics, that vicinity or nearness of situation, constitutes nations natural enemies. an intelligent writer expresses himself on this subject to this effect: "neighboring nations (says he) are naturally enemies of each other unless their common weakness forces them to league in a confederate republic, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors."11 this passage, at the same time, points out the evil and suggests the remedy. publius. 1 aspasia, vide "plutarch's life of pericles." 2 ibid. 3 ibid. 4 ] ibid. phidias was supposed to have stolen some public gold, with the connivance of pericles, for the embellishment of the statue of minerva. 5 p worn by the popes. 6 madame de maintenon. 7 duchess of marlborough. 8 madame de pompadour. 9 the league of cambray, comprehending the emperor, the king of france, the king of aragon, and most of the italian princes and states. 10 the duke of marlborough. 11 vide "principes des negociations" par l'abbe de mably. federalist. no. 7 the same subject continued (concerning dangers from dissensions between the states) for the independent journal. hamilton to the people of the state of new york: it is sometimes asked, with an air of seeming triumph, what inducements could the states have, if disunited, to make war upon each other? it would be a full answer to this question to say--precisely the same inducements which have, at different times, deluged in blood all the nations in the world. but, unfortunately for us, the question admits of a more particular answer. there are causes of differences within our immediate contemplation, of the tendency of which, even under the restraints of a federal constitution, we have had sufficient experience to enable us to form a judgment of what might be expected if those restraints were removed. territorial disputes have at all times been found one of the most fertile sources of hostility among nations. perhaps the greatest proportion of wars that have desolated the earth have sprung from this origin. this cause would exist among us in full force. we have a vast tract of unsettled territory within the boundaries of the united states. there still are discordant and undecided claims between several of them, and the dissolution of the union would lay a foundation for similar claims between them all. it is well known that they have heretofore had serious and animated discussion concerning the rights to the lands which were ungranted at the time of the revolution, and which usually went under the name of crown lands. the states within the limits of whose colonial governments they were comprised have claimed them as their property, the others have contended that the rights of the crown in this article devolved upon the union; especially as to all that part of the western territory which, either by actual possession, or through the submission of the indian proprietors, was subjected to the jurisdiction of the king of great britain, till it was relinquished in the treaty of peace. this, it has been said, was at all events an acquisition to the confederacy by compact with a foreign power. it has been the prudent policy of congress to appease this controversy, by prevailing upon the states to make cessions to the united states for the benefit of the whole. this has been so far accomplished as, under a continuation of the union, to afford a decided prospect of an amicable termination of the dispute. a dismemberment of the confederacy, however, would revive this dispute, and would create others on the same subject. at present, a large part of the vacant western territory is, by cession at least, if not by any anterior right, the common property of the union. if that were at an end, the states which made the cession, on a principle of federal compromise, would be apt when the motive of the grant had ceased, to reclaim the lands as a reversion. the other states would no doubt insist on a proportion, by right of representation. their argument would be, that a grant, once made, could not be revoked; and that the justice of participating in territory acquired or secured by the joint efforts of the confederacy, remained undiminished. if, contrary to probability, it should be admitted by all the states, that each had a right to a share of this common stock, there would still be a difficulty to be surmounted, as to a proper rule of apportionment. different principles would be set up by different states for this purpose; and as they would affect the opposite interests of the parties, they might not easily be susceptible of a pacific adjustment. in the wide field of western territory, therefore, we perceive an ample theatre for hostile pretensions, without any umpire or common judge to interpose between the contending parties. to reason from the past to the future, we shall have good ground to apprehend, that the sword would sometimes be appealed to as the arbiter of their differences. the circumstances of the dispute between connecticut and pennsylvania, respecting the land at wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences. the articles of confederation obliged the parties to submit the matter to the decision of a federal court. the submission was made, and the court decided in favor of pennsylvania. but connecticut gave strong indications of dissatisfaction with that determination; nor did she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained. nothing here said is intended to convey the slightest censure on the conduct of that state. she no doubt sincerely believed herself to have been injured by the decision; and states, like individuals, acquiesce with great reluctance in determinations to their disadvantage. those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this state and the district of vermont, can vouch the opposition we experienced, as well from states not interested as from those which were interested in the claim; and can attest the danger to which the peace of the confederacy might have been exposed, had this state attempted to assert its rights by force. two motives preponderated in that opposition: one, a jealousy entertained of our future power; and the other, the interest of certain individuals of influence in the neighboring states, who had obtained grants of lands under the actual government of that district. even the states which brought forward claims, in contradiction to ours, seemed more solicitous to dismember this state, than to establish their own pretensions. these were new hampshire, massachusetts, and connecticut. new jersey and rhode island, upon all occasions, discovered a warm zeal for the independence of vermont; and maryland, till alarmed by the appearance of a connection between canada and that state, entered deeply into the same views. these being small states, saw with an unfriendly eye the perspective of our growing greatness. in a review of these transactions we may trace some of the causes which would be likely to embroil the states with each other, if it should be their unpropitious destiny to become disunited. the competitions of commerce would be another fruitful source of contention. the states less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. each state, or separate confederacy, would pursue a system of commercial policy peculiar to itself. this would occasion distinctions, preferences, and exclusions, which would beget discontent. the habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance. we should be ready to denominate injuries those things which were in reality the justifiable acts of independent sovereignties consulting a distinct interest. the spirit of enterprise, which characterizes the commercial part of america, has left no occasion of displaying itself unimproved. it is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular states might endeavor to secure exclusive benefits to their own citizens. the infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and wars. the opportunities which some states would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary states. the relative situation of new york, connecticut, and new jersey would afford an example of this kind. new york, from the necessities of revenue, must lay duties on her importations. a great part of these duties must be paid by the inhabitants of the two other states in the capacity of consumers of what we import. new york would neither be willing nor able to forego this advantage. her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets. would connecticut and new jersey long submit to be taxed by new york for her exclusive benefit? should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? should we be able to preserve it against the incumbent weight of connecticut on the one side, and the co-operating pressure of new jersey on the other? these are questions that temerity alone will answer in the affirmative. the public debt of the union would be a further cause of collision between the separate states or confederacies. the apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill-humor and animosity. how would it be possible to agree upon a rule of apportionment satisfactory to all? there is scarcely any that can be proposed which is entirely free from real objections. these, as usual, would be exaggerated by the adverse interest of the parties. there are even dissimilar views among the states as to the general principle of discharging the public debt. some of them, either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at any rate. these would be inclined to magnify the difficulties of a distribution. others of them, a numerous body of whose citizens are creditors to the public beyond proportion of the state in the total amount of the national debt, would be strenuous for some equitable and effective provision. the procrastinations of the former would excite the resentments of the latter. the settlement of a rule would, in the meantime, be postponed by real differences of opinion and affected delays. the citizens of the states interested would clamour; foreign powers would urge for the satisfaction of their just demands, and the peace of the states would be hazarded to the double contingency of external invasion and internal contention. suppose the difficulties of agreeing upon a rule surmounted, and the apportionment made. still there is great room to suppose that the rule agreed upon would, upon experiment, be found to bear harder upon some states than upon others. those which were sufferers by it would naturally seek for a mitigation of the burden. the others would as naturally be disinclined to a revision, which was likely to end in an increase of their own incumbrances. their refusal would be too plausible a pretext to the complaining states to withhold their contributions, not to be embraced with avidity; and the non-compliance of these states with their engagements would be a ground of bitter discussion and altercation. if even the rule adopted should in practice justify the equality of its principle, still delinquencies in payments on the part of some of the states would result from a diversity of other causes--the real deficiency of resources; the mismanagement of their finances; accidental disorders in the management of the government; and, in addition to the rest, the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them, and interfere with the supply of immediate wants. delinquencies, from whatever causes, would be productive of complaints, recriminations, and quarrels. there is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. for it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money. laws in violation of private contracts, as they amount to aggressions on the rights of those states whose citizens are injured by them, may be considered as another probable source of hostility. we are not authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the individual states hereafter, if unrestrained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes. we have observed the disposition to retaliation excited in connecticut in consequence of the enormities perpetrated by the legislature of rhode island; and we reasonably infer that, in similar cases, under other circumstances, a war, not of parchment, but of the sword, would chastise such atrocious breaches of moral obligation and social justice. the probability of incompatible alliances between the different states or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. from the view they have exhibited of this part of the subject, this conclusion is to be drawn, that america, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of european politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all. divide et impera1 must be the motto of every nation that either hates or fears us.2 publius. 1 divide and command. 2 in order that the whole subject of these papers may as soon as possible be laid before the public, it is proposed to publish them four times a week--on tuesday in the new york packet and on thursday in the daily advertiser. federalist no. 8 the consequences of hostilities between the states from the new york packet. tuesday, november 20, 1787. hamilton to the people of the state of new york: assuming it therefore as an established truth that the several states, in case of disunion, or such combinations of them as might happen to be formed out of the wreck of the general confederacy, would be subject to those vicissitudes of peace and war, of friendship and enmity, with each other, which have fallen to the lot of all neighboring nations not united under one government, let us enter into a concise detail of some of the consequences that would attend such a situation. war between the states, in the first period of their separate existence, would be accompanied with much greater distresses than it commonly is in those countries where regular military establishments have long obtained. the disciplined armies always kept on foot on the continent of europe, though they bear a malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advantage of rendering sudden conquests impracticable, and of preventing that rapid desolation which used to mark the progress of war prior to their introduction. the art of fortification has contributed to the same ends. the nations of europe are encircled with chains of fortified places, which mutually obstruct invasion. campaigns are wasted in reducing two or three frontier garrisons, to gain admittance into an enemy's country. similar impediments occur at every step, to exhaust the strength and delay the progress of an invader. formerly, an invading army would penetrate into the heart of a neighboring country almost as soon as intelligence of its approach could be received; but now a comparatively small force of disciplined troops, acting on the defensive, with the aid of posts, is able to impede, and finally to frustrate, the enterprises of one much more considerable. the history of war, in that quarter of the globe, is no longer a history of nations subdued and empires overturned, but of towns taken and retaken; of battles that decide nothing; of retreats more beneficial than victories; of much effort and little acquisition. in this country the scene would be altogether reversed. the jealousy of military establishments would postpone them as long as possible. the want of fortifications, leaving the frontiers of one state open to another, would facilitate inroads. the populous states would, with little difficulty, overrun their less populous neighbors. conquests would be as easy to be made as difficult to be retained. war, therefore, would be desultory and predatory. plunder and devastation ever march in the train of irregulars. the calamities of individuals would make the principal figure in the events which would characterize our military exploits. this picture is not too highly wrought; though, i confess, it would not long remain a just one. safety from external danger is the most powerful director of national conduct. even the ardent love of liberty will, after a time, give way to its dictates. the violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. to be more safe, they at length become willing to run the risk of being less free. the institutions chiefly alluded to are standing armies and the correspondent appendages of military establishments. standing armies, it is said, are not provided against in the new constitution; and it is therefore inferred that they may exist under it.1 their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. but standing armies, it may be replied, must inevitably result from a dissolution of the confederacy. frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. the weaker states or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. they would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. they would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. it is of the nature of war to increase the executive at the expense of the legislative authority. the expedients which have been mentioned would soon give the states or confederacies that made use of them a superiority over their neighbors. small states, or states of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. neither the pride nor the safety of the more important states or confederacies would permit them long to submit to this mortifying and adventitious superiority. they would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre-eminence. thus, we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the old world. this, at least, would be the natural course of things; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard. these are not vague inferences drawn from supposed or speculative defects in a constitution, the whole power of which is lodged in the hands of a people, or their representatives and delegates, but they are solid conclusions, drawn from the natural and necessary progress of human affairs. it may, perhaps, be asked, by way of objection to this, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of greece? different answers, equally satisfactory, may be given to this question. the industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those republics. the means of revenue, which have been so greatly multiplied by the increase of gold and silver and of the arts of industry, and the science of finance, which is the offspring of modern times, concurring with the habits of nations, have produced an entire revolution in the system of war, and have rendered disciplined armies, distinct from the body of the citizens, the inseparable companions of frequent hostility. there is a wide difference, also, between military establishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. the rulers of the former can have a good pretext, if they are even so inclined, to keep on foot armies so numerous as must of necessity be maintained in the latter. these armies being, in the first case, rarely, if at all, called into activity for interior defense, the people are in no danger of being broken to military subordination. the laws are not accustomed to relaxations, in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. the smallness of the army renders the natural strength of the community an over-match for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. the army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the people. in a country in the predicament last described, the contrary of all this happens. the perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. the continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. the military state becomes elevated above the civil. the inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. the transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power. the kingdom of great britain falls within the first description. an insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. a sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. no motive of national policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its domestic establishment. there has been, for a long time past, little room for the operation of the other causes, which have been enumerated as the consequences of internal war. this peculiar felicity of situation has, in a great degree, contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption. if, on the contrary, britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home coextensive with those of the other great powers of europe, she, like them, would in all probability be, at this day, a victim to the absolute power of a single man. 't is possible, though not easy, that the people of that island may be enslaved from other causes; but it cannot be by the prowess of an army so inconsiderable as that which has been usually kept up within the kingdom. if we are wise enough to preserve the union we may for ages enjoy an advantage similar to that of an insulated situation. europe is at a great distance from us. her colonies in our vicinity will be likely to continue too much disproportioned in strength to be able to give us any dangerous annoyance. extensive military establishments cannot, in this position, be necessary to our security. but if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of europe --our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other. this is an idea not superficial or futile, but solid and weighty. it deserves the most serious and mature consideration of every prudent and honest man of whatever party. if such men will make a firm and solemn pause, and meditate dispassionately on the importance of this interesting idea; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a constitution, the rejection of which would in all probability put a final period to the union. the airy phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place to the more substantial forms of dangers, real, certain, and formidable. publius. 1 this objection will be fully examined in its proper place, and it will be shown that the only natural precaution which could have been taken on this subject has been taken; and a much better one than is to be found in any constitution that has been heretofore framed in america, most of which contain no guard at all on this subject. federalist no. 9 the union as a safeguard against domestic faction and insurrection for the independent journal. hamilton to the people of the state of new york: a firm union will be of the utmost moment to the peace and liberty of the states, as a barrier against domestic faction and insurrection. it is impossible to read the history of the petty republics of greece and italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. if they exhibit occasional calms, these only serve as short-lived contrast to the furious storms that are to succeed. if now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. if momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated. from the disorders that disfigure the annals of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty. they have decried all free government as inconsistent with the order of society, and have indulged themselves in malicious exultation over its friends and partisans. happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. and, i trust, america will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments of their errors. but it is not to be denied that the portraits they have sketched of republican government were too just copies of the originals from which they were taken. if it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of government as indefensible. the science of politics, however, like most other sciences, has received great improvement. the efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. the regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. they are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided. to this catalogue of circumstances that tend to the amelioration of popular systems of civil government, i shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new constitution; i mean the enlargement of the orbit within which such systems are to revolve, either in respect to the dimensions of a single state or to the consolidation of several smaller states into one great confederacy. the latter is that which immediately concerns the object under consideration. it will, however, be of use to examine the principle in its application to a single state, which shall be attended to in another place. the utility of a confederacy, as well to suppress faction and to guard the internal tranquillity of states, as to increase their external force and security, is in reality not a new idea. it has been practiced upon in different countries and ages, and has received the sanction of the most approved writers on the subject of politics. the opponents of the plan proposed have, with great assiduity, cited and circulated the observations of montesquieu on the necessity of a contracted territory for a republican government. but they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence. when montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these states. neither virginia, massachusetts, pennsylvania, new york, north carolina, nor georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. if we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt. some of the writers who have come forward on the other side of the question seem to have been aware of the dilemma; and have even been bold enough to hint at the division of the larger states as a desirable thing. such an infatuated policy, such a desperate expedient, might, by the multiplication of petty offices, answer the views of men who possess not qualifications to extend their influence beyond the narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of america. referring the examination of the principle itself to another place, as has been already mentioned, it will be sufficient to remark here that, in the sense of the author who has been most emphatically quoted upon the occasion, it would only dictate a reduction of the size of the more considerable members of the union, but would not militate against their being all comprehended in one confederate government. and this is the true question, in the discussion of which we are at present interested. so far are the suggestions of montesquieu from standing in opposition to a general union of the states, that he explicitly treats of a confederate republic as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism. "it is very probable," (says he1) "that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. i mean a confederate republic. "this form of government is a convention by which several smaller states agree to become members of a larger one, which they intend to form. it is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body. "a republic of this kind, able to withstand an external force, may support itself without any internal corruptions. the form of this society prevents all manner of inconveniences. "if a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. were he to have too great influence over one, this would alarm the rest. were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation. "should a popular insurrection happen in one of the confederate states the others are able to quell it. should abuses creep into one part, they are reformed by those that remain sound. the state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty. "as this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies." i have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. they have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the union to repress domestic faction and insurrection. a distinction, more subtle than accurate, has been raised between a confederacy and a consolidation of the states. the essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. it is contended that the national council ought to have no concern with any object of internal administration. an exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. these positions are, in the main, arbitrary; they are supported neither by principle nor precedent. it has indeed happened, that governments of this kind have generally operated in the manner which the distinction taken notice of, supposes to be inherent in their nature; but there have been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go, that there is no absolute rule on the subject. and it will be clearly shown in the course of this investigation that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government. the definition of a confederate republic seems simply to be "an assemblage of societies," or an association of two or more states into one state. the extent, modifications, and objects of the federal authority are mere matters of discretion. so long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. the proposed constitution, so far from implying an abolition of the state governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the senate, and leaves in their possession certain exclusive and very important portions of sovereign power. this fully corresponds, in every rational import of the terms, with the idea of a federal government. in the lycian confederacy, which consisted of twenty-three cities or republics, the largest were entitled to three votes in the common council, those of the middle class to two, and the smallest to one. the common council had the appointment of all the judges and magistrates of the respective cities. this was certainly the most, delicate species of interference in their internal administration; for if there be any thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own officers. yet montesquieu, speaking of this association, says: "were i to give a model of an excellent confederate republic, it would be that of lycia." thus we perceive that the distinctions insisted upon were not within the contemplation of this enlightened civilian; and we shall be led to conclude, that they are the novel refinements of an erroneous theory. publius. 1 "spirit of lawa," vol. i., book ix., chap. i. federalist no. 10 the same subject continued (the union as a safeguard against domestic faction and insurrection) from the new york packet. friday, november 23, 1787. madison to the people of the state of new york: among the numerous advantages promised by a wellconstructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. the friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. he will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. the instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. the valuable improvements made by the american constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. however anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. it will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. these must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations. by a faction, i understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. there are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. there are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. it could never be more truly said than of the first remedy, that it was worse than the disease. liberty is to faction what air is to fire, an aliment without which it instantly expires. but it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. the second expedient is as impracticable as the first would be unwise. as long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. as long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. the diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. the protection of these faculties is the first object of government. from the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties. the latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. a zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. so strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. but the most common and durable source of factions has been the various and unequal distribution of property. those who hold and those who are without property have ever formed distinct interests in society. those who are creditors, and those who are debtors, fall under a like discrimination. a landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. the regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government. no man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. with equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? and what are the different classes of legislators but advocates and parties to the causes which they determine? is a law proposed concerning private debts? it is a question to which the creditors are parties on one side and the debtors on the other. justice ought to hold the balance between them. yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. the apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. every shilling with which they overburden the inferior number, is a shilling saved to their own pockets. it is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. enlightened statesmen will not always be at the helm. nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole. the inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects. if a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. it may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the constitution. when a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. to secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind. by what means is this object attainable? evidently by one of two only. either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. if the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. they are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful. from this view of the subject it may be concluded that a pure democracy, by which i mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. a common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. a republic, by which i mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the union. the two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. the effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. on the other hand, the effect may be inverted. men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. the question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations: in the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice. in the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters. it must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. by enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. the federal constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the state legislatures. the other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. the smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary. hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the union over the states composing it. does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? it will not be denied that the representation of the union will be most likely to possess these requisite endowments. does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? in an equal degree does the increased variety of parties comprised within the union, increase this security. does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? here, again, the extent of the union gives it the most palpable advantage. the influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states. a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire state. in the extent and proper structure of the union, therefore, we behold a republican remedy for the diseases most incident to republican government. and according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of federalists. publius. federalist no. 11 the utility of the union in respect to commercial relations and a navy for the independent journal. hamilton to the people of the state of new york: the importance of the union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject. this applies as well to our intercourse with foreign countries as with each other. there are appearances to authorize a supposition that the adventurous spirit, which distinguishes the commercial character of america, has already excited uneasy sensations in several of the maritime powers of europe. they seem to be apprehensive of our too great interference in that carrying trade, which is the support of their navigation and the foundation of their naval strength. those of them which have colonies in america look forward to what this country is capable of becoming, with painful solicitude. they foresee the dangers that may threaten their american dominions from the neighborhood of states, which have all the dispositions, and would possess all the means, requisite to the creation of a powerful marine. impressions of this kind will naturally indicate the policy of fostering divisions among us, and of depriving us, as far as possible, of an active commerce in our own bottoms. this would answer the threefold purpose of preventing our interference in their navigation, of monopolizing the profits of our trade, and of clipping the wings by which we might soar to a dangerous greatness. did not prudence forbid the detail, it would not be difficult to trace, by facts, the workings of this policy to the cabinets of ministers. if we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. by prohibitory regulations, extending, at the same time, throughout the states, we may oblige foreign countries to bid against each other, for the privileges of our markets. this assertion will not appear chimerical to those who are able to appreciate the importance of the markets of three millions of people--increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local circumstances to remain so--to any manufacturing nation; and the immense difference there would be to the trade and navigation of such a nation, between a direct communication in its own ships, and an indirect conveyance of its products and returns, to and from america, in the ships of another country. suppose, for instance, we had a government in america, capable of excluding great britain (with whom we have at present no treaty of commerce) from all our ports; what would be the probable operation of this step upon her politics? would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom? when these questions have been asked, upon other occasions, they have received a plausible, but not a solid or satisfactory answer. it has been said that prohibitions on our part would produce no change in the system of britain, because she could prosecute her trade with us through the medium of the dutch, who would be her immediate customers and paymasters for those articles which were wanted for the supply of our markets. but would not her navigation be materially injured by the loss of the important advantage of being her own carrier in that trade? would not the principal part of its profits be intercepted by the dutch, as a compensation for their agency and risk? would not the mere circumstance of freight occasion a considerable deduction? would not so circuitous an intercourse facilitate the competitions of other nations, by enhancing the price of british commodities in our markets, and by transferring to other hands the management of this interesting branch of the british commerce? a mature consideration of the objects suggested by these questions will justify a belief that the real disadvantages to britain from such a state of things, conspiring with the pre-possessions of a great part of the nation in favor of the american trade, and with the importunities of the west india islands, would produce a relaxation in her present system, and would let us into the enjoyment of privileges in the markets of those islands elsewhere, from which our trade would derive the most substantial benefits. such a point gained from the british government, and which could not be expected without an equivalent in exemptions and immunities in our markets, would be likely to have a correspondent effect on the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade. a further resource for influencing the conduct of european nations toward us, in this respect, would arise from the establishment of a federal navy. there can be no doubt that the continuance of the union under an efficient government would put it in our power, at a period not very distant, to create a navy which, if it could not vie with those of the great maritime powers, would at least be of respectable weight if thrown into the scale of either of two contending parties. this would be more peculiarly the case in relation to operations in the west indies. a few ships of the line, sent opportunely to the reinforcement of either side, would often be sufficient to decide the fate of a campaign, on the event of which interests of the greatest magnitude were suspended. our position is, in this respect, a most commanding one. and if to this consideration we add that of the usefulness of supplies from this country, in the prosecution of military operations in the west indies, it will readily be perceived that a situation so favorable would enable us to bargain with great advantage for commercial privileges. a price would be set not only upon our friendship, but upon our neutrality. by a steady adherence to the union we may hope, erelong, to become the arbiter of europe in america, and to be able to incline the balance of european competitions in this part of the world as our interest may dictate. but in the reverse of this eligible situation, we shall discover that the rivalships of the parts would make them checks upon each other, and would frustrate all the tempting advantages which nature has kindly placed within our reach. in a state so insignificant our commerce would be a prey to the wanton intermeddlings of all nations at war with each other; who, having nothing to fear from us, would with little scruple or remorse, supply their wants by depredations on our property as often as it fell in their way. the rights of neutrality will only be respected when they are defended by an adequate power. a nation, despicable by its weakness, forfeits even the privilege of being neutral. under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of european jealousy to restrain our growth. this situation would even take away the motive to such combinations, by inducing an impracticability of success. an active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. we might defy the little arts of the little politicians to control or vary the irresistible and unchangeable course of nature. but in a state of disunion, these combinations might exist and might operate with success. it would be in the power of the maritime nations, availing themselves of our universal impotence, to prescribe the conditions of our political existence; and as they have a common interest in being our carriers, and still more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation in such a manner as would in effect destroy it, and confine us to a passive commerce. we should then be compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors. that unequaled spirit of enterprise, which signalizes the genius of the american merchants and navigators, and which is in itself an inexhaustible mine of national wealth, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world. there are rights of great moment to the trade of america which are rights of the union--i allude to the fisheries, to the navigation of the western lakes, and to that of the mississippi. the dissolution of the confederacy would give room for delicate questions concerning the future existence of these rights; which the interest of more powerful partners would hardly fail to solve to our disadvantage. the disposition of spain with regard to the mississippi needs no comment. france and britain are concerned with us in the fisheries, and view them as of the utmost moment to their navigation. they, of course, would hardly remain long indifferent to that decided mastery, of which experience has shown us to be possessed in this valuable branch of traffic, and by which we are able to undersell those nations in their own markets. what more natural than that they should be disposed to exclude from the lists such dangerous competitors? this branch of trade ought not to be considered as a partial benefit. all the navigating states may, in different degrees, advantageously participate in it, and under circumstances of a greater extension of mercantile capital, would not be unlikely to do it. as a nursery of seamen, it now is, or when time shall have more nearly assimilated the principles of navigation in the several states, will become, a universal resource. to the establishment of a navy, it must be indispensable. to this great national object, a navy, union will contribute in various ways. every institution will grow and flourish in proportion to the quantity and extent of the means concentred towards its formation and support. a navy of the united states, as it would embrace the resources of all, is an object far less remote than a navy of any single state or partial confederacy, which would only embrace the resources of a single part. it happens, indeed, that different portions of confederated america possess each some peculiar advantage for this essential establishment. the more southern states furnish in greater abundance certain kinds of naval stores--tar, pitch, and turpentine. their wood for the construction of ships is also of a more solid and lasting texture. the difference in the duration of the ships of which the navy might be composed, if chiefly constructed of southern wood, would be of signal importance, either in the view of naval strength or of national economy. some of the southern and of the middle states yield a greater plenty of iron, and of better quality. seamen must chiefly be drawn from the northern hive. the necessity of naval protection to external or maritime commerce does not require a particular elucidation, no more than the conduciveness of that species of commerce to the prosperity of a navy. an unrestrained intercourse between the states themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. the veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. commercial enterprise will have much greater scope, from the diversity in the productions of different states. when the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. the variety, not less than the value, of products for exportation contributes to the activity of foreign commerce. it can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value; arising from the competitions of trade and from the fluctations of markets. particular articles may be in great demand at certain periods, and unsalable at others; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. the speculative trader will at once perceive the force of these observations, and will acknowledge that the aggregate balance of the commerce of the united states would bid fair to be much more favorable than that of the thirteen states without union or with partial unions. it may perhaps be replied to this, that whether the states are united or disunited, there would still be an intimate intercourse between them which would answer the same ends; this intercourse would be fettered, interrupted, and narrowed by a multiplicity of causes, which in the course of these papers have been amply detailed. a unity of commercial, as well as political, interests, can only result from a unity of government. there are other points of view in which this subject might be placed, of a striking and animating kind. but they would lead us too far into the regions of futurity, and would involve topics not proper for a newspaper discussion. i shall briefly observe, that our situation invites and our interests prompt us to aim at an ascendant in the system of american affairs. the world may politically, as well as geographically, be divided into four parts, each having a distinct set of interests. unhappily for the other three, europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. africa, asia, and america, have successively felt her domination. the superiority she has long maintained has tempted her to plume herself as the mistress of the world, and to consider the rest of mankind as created for her benefit. men admired as profound philosophers have, in direct terms, attributed to her inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in america--that even dogs cease to bark after having breathed awhile in our atmosphere.1 facts have too long supported these arrogant pretensions of the europeans. it belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. union will enable us to do it. disunion will will add another victim to his triumphs. let americans disdain to be the instruments of european greatness! let the thirteen states, bound together in a strict and indissoluble union, concur in erecting one great american system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world! publius. "recherches philosophiques sur les americains." federalist no. 12 the utility of the union in respect to revenue from the new york packet. tuesday, november 27, 1787. hamilton to the people of the state of new york: the effects of union upon the commercial prosperity of the states have been sufficiently delineated. its tendency to promote the interests of revenue will be the subject of our present inquiry. the prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares. by multiplying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate the channels of industry, and to make them flow with greater activity and copiousness. the assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,--all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils. the often-agitated question between agriculture and commerce has, from indubitable experience, received a decision which has silenced the rivalship that once subsisted between them, and has proved, to the satisfaction of their friends, that their interests are intimately blended and interwoven. it has been found in various countries that, in proportion as commerce has flourished, land has risen in value. and how could it have happened otherwise? could that which procures a freer vent for the products of the earth, which furnishes new incitements to the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state--could that, in fine, which is the faithful handmaid of labor and industry, in every shape, fail to augment that article, which is the prolific parent of far the greatest part of the objects upon which they are exerted? it is astonishing that so simple a truth should ever have had an adversary; and it is one, among a multitude of proofs, how apt a spirit of ill-informed jealousy, or of too great abstraction and refinement, is to lead men astray from the plainest truths of reason and conviction. the ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates. commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury. the hereditary dominions of the emperor of germany contain a great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. in some parts of this territory are to be found the best gold and silver mines in europe. and yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues. he has several times been compelled to owe obligations to the pecuniary succors of other nations for the preservation of his essential interests, and is unable, upon the strength of his own resources, to sustain a long or continued war. but it is not in this aspect of the subject alone that union will be seen to conduce to the purpose of revenue. there are other points of view, in which its influence will appear more immediate and decisive. it is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation. tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the states have remained empty. the popular system of administration inherent in the nature of popular government, coinciding with the real scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them. no person acquainted with what happens in other countries will be surprised at this circumstance. in so opulent a nation as that of britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in america, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. duties on imported articles form a large branch of this latter description. in america, it is evident that we must a long time depend for the means of revenue chiefly on such duties. in most parts of it, excises must be confined within a narrow compass. the genius of the people will ill brook the inquisitive and peremptory spirit of excise laws. the pockets of the farmers, on the other hand, will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands; and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the inperceptible agency of taxes on consumption. if these remarks have any foundation, that state of things which will best enable us to improve and extend so valuable a resource must be best adapted to our political welfare. and it cannot admit of a serious doubt, that this state of things must rest on the basis of a general union. as far as this would be conducive to the interests of commerce, so far it must tend to the extension of the revenue to be drawn from that source. as far as it would contribute to rendering regulations for the collection of the duties more simple and efficacious, so far it must serve to answer the purposes of making the same rate of duties more productive, and of putting it into the power of the government to increase the rate without prejudice to trade. the relative situation of these states; the number of rivers with which they are intersected, and of bays that wash there shores; the facility of communication in every direction; the affinity of language and manners; the familiar habits of intercourse; --all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other. the separate states or confederacies would be necessitated by mutual jealousy to avoid the temptations to that kind of trade by the lowness of their duties. the temper of our governments, for a long time to come, would not permit those rigorous precautions by which the european nations guard the avenues into their respective countries, as well by land as by water; and which, even there, are found insufficient obstacles to the adventurous stratagems of avarice. in france, there is an army of patrols (as they are called) constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. mr. neckar computes the number of these patrols at upwards of twenty thousand. this shows the immense difficulty in preventing that species of traffic, where there is an inland communication, and places in a strong light the disadvantages with which the collection of duties in this country would be encumbered, if by disunion the states should be placed in a situation, with respect to each other, resembling that of france with respect to her neighbors. the arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a free country. if, on the contrary, there be but one government pervading all the states, there will be, as to the principal part of our commerce, but one side to guard--the atlantic coast. vessels arriving directly from foreign countries, laden with valuable cargoes, would rarely choose to hazard themselves to the complicated and critical perils which would attend attempts to unlade prior to their coming into port. they would have to dread both the dangers of the coast, and of detection, as well after as before their arrival at the places of their final destination. an ordinary degree of vigilance would be competent to the prevention of any material infractions upon the rights of the revenue. a few armed vessels, judiciously stationed at the entrances of our ports, might at a small expense be made useful sentinels of the laws. and the government having the same interest to provide against violations everywhere, the co-operation of its measures in each state would have a powerful tendency to render them effectual. here also we should preserve by union, an advantage which nature holds out to us, and which would be relinquished by separation. the united states lie at a great distance from europe, and at a considerable distance from all other places with which they would have extensive connections of foreign trade. the passage from them to us, in a few hours, or in a single night, as between the coasts of france and britain, and of other neighboring nations, would be impracticable. this is a prodigious security against a direct contraband with foreign countries; but a circuitous contraband to one state, through the medium of another, would be both easy and safe. the difference between a direct importation from abroad, and an indirect importation through the channel of a neighboring state, in small parcels, according to time and opportunity, with the additional facilities of inland communication, must be palpable to every man of discernment. it is therefore evident, that one national government would be able, at much less expense, to extend the duties on imports, beyond comparison, further than would be practicable to the states separately, or to any partial confederacies. hitherto, i believe, it may safely be asserted, that these duties have not upon an average exceeded in any state three per cent. in france they are estimated to be about fifteen per cent., and in britain they exceed this proportion.1 there seems to be nothing to hinder their being increased in this country to at least treble their present amount. the single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. upon a ratio to the importation into this state, the whole quantity imported into the united states may be estimated at four millions of gallons; which, at a shilling per gallon, would produce two hundred thousand pounds. that article would well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. there is, perhaps, nothing so much a subject of national extravagance as these spirits. what will be the consequence, if we are not able to avail ourselves of the resource in question in its full extent? a nation cannot long exist without revenues. destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. this is an extremity to which no government will of choice accede. revenue, therefore, must be had at all events. in this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. it has been already intimated that excises, in their true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation; nor, indeed, in the states where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. personal estate (as has been before remarked), from the difficulty in tracing it, cannot be subjected to large contributions, by any other means than by taxes on consumption. in populous cities, it may be enough the subject of conjecture, to occasion the oppression of individuals, without much aggregate benefit to the state; but beyond these circles, it must, in a great measure, escape the eye and the hand of the tax-gatherer. as the necessities of the state, nevertheless, must be satisfied in some mode or other, the defect of other resources must throw the principal weight of public burdens on the possessors of land. and as, on the other hand, the wants of the government can never obtain an adequate supply, unless all the sources of revenue are open to its demands, the finances of the community, under such embarrassments, cannot be put into a situation consistent with its respectability or its security. thus we shall not even have the consolations of a full treasury, to atone for the oppression of that valuable class of the citizens who are employed in the cultivation of the soil. but public and private distress will keep pace with each other in gloomy concert; and unite in deploring the infatuation of those counsels which led to disunion. publius. 1 if my memory be right they amount to twenty per cent. federalist no. 13 advantage of the union in respect to economy in government for the independent journal. hamilton to the people of the state of new york: as connected with the subject of revenue, we may with propriety consider that of economy. the money saved from one object may be usefully applied to another, and there will be so much the less to be drawn from the pockets of the people. if the states are united under one government, there will be but one national civil list to support; if they are divided into several confederacies, there will be as many different national civil lists to be provided for--and each of them, as to the principal departments, coextensive with that which would be necessary for a government of the whole. the entire separation of the states into thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many advocates. the ideas of men who speculate upon the dismemberment of the empire seem generally turned toward three confederacies--one consisting of the four northern, another of the four middle, and a third of the five southern states. there is little probability that there would be a greater number. according to this distribution, each confederacy would comprise an extent of territory larger than that of the kingdom of great britain. no well-informed man will suppose that the affairs of such a confederacy can be properly regulated by a government less comprehensive in its organs or institutions than that which has been proposed by the convention. when the dimensions of a state attain to a certain magnitude, it requires the same energy of government and the same forms of administration which are requisite in one of much greater extent. this idea admits not of precise demonstration, because there is no rule by which we can measure the momentum of civil power necessary to the government of any given number of individuals; but when we consider that the island of britain, nearly commensurate with each of the supposed confederacies, contains about eight millions of people, and when we reflect upon the degree of authority required to direct the passions of so large a society to the public good, we shall see no reason to doubt that the like portion of power would be sufficient to perform the same task in a society far more numerous. civil power, properly organized and exerted, is capable of diffusing its force to a very great extent; and can, in a manner, reproduce itself in every part of a great empire by a judicious arrangement of subordinate institutions. the supposition that each confederacy into which the states would be likely to be divided would require a government not less comprehensive than the one proposed, will be strengthened by another supposition, more probable than that which presents us with three confederacies as the alternative to a general union. if we attend carefully to geographical and commercial considerations, in conjunction with the habits and prejudices of the different states, we shall be led to conclude that in case of disunion they will most naturally league themselves under two governments. the four eastern states, from all the causes that form the links of national sympathy and connection, may with certainty be expected to unite. new york, situated as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that confederacy. there are other obvious reasons that would facilitate her accession to it. new jersey is too small a state to think of being a frontier, in opposition to this still more powerful combination; nor do there appear to be any obstacles to her admission into it. even pennsylvania would have strong inducements to join the northern league. an active foreign commerce, on the basis of her own navigation, is her true policy, and coincides with the opinions and dispositions of her citizens. the more southern states, from various circumstances, may not think themselves much interested in the encouragement of navigation. they may prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities. pennsylvania may not choose to confound her interests in a connection so adverse to her policy. as she must at all events be a frontier, she may deem it most consistent with her safety to have her exposed side turned towards the weaker power of the southern, rather than towards the stronger power of the northern, confederacy. this would give her the fairest chance to avoid being the flanders of america. whatever may be the determination of pennsylvania, if the northern confederacy includes new jersey, there is no likelihood of more than one confederacy to the south of that state. nothing can be more evident than that the thirteen states will be able to support a national government better than one half, or one third, or any number less than the whole. this reflection must have great weight in obviating that objection to the proposed plan, which is founded on the principle of expense; an objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on mistaken ground. if, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who must necessarily be employed to guard the inland communication between the different confederacies against illicit trade, and who in time will infallibly spring up out of the necessities of revenue; and if we also take into view the military establishments which it has been shown would unavoidably result from the jealousies and conflicts of the several nations into which the states would be divided, we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of every part. publius. federalist no. 14 objections to the proposed constitution from extent of territory answered from the new york packet. friday, november 30, 1787. madison to the people of the state of new york: we have seen the necessity of the union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the old world, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. all that remains, within this branch of our inquiries, is to take notice of an objection that may be drawn from the great extent of country which the union embraces. a few observations on this subject will be the more proper, as it is perceived that the adversaries of the new constitution are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find. the error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. i remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. the true distinction between these forms was also adverted to on a former occasion. it is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. a democracy, consequently, will be confined to a small spot. a republic may be extended over a large region. to this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient greece and modern italy. under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory. such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. if europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentred, and its force directed to any object which the public good requires, america can claim the merit of making the discovery the basis of unmixed and extensive republics. it is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration. as the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the centre which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs. can it be said that the limits of the united states exceed this distance? it will not be said by those who recollect that the atlantic coast is the longest side of the union, that during the term of thirteen years, the representatives of the states have been almost continually assembled, and that the members from the most distant states are not chargeable with greater intermissions of attendance than those from the states in the neighborhood of congress. that we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the union. the limits, as fixed by the treaty of peace, are: on the east the atlantic, on the south the latitude of thirty-one degrees, on the west the mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. the southern shore of lake erie lies below that latitude. computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three-fourths. the mean distance from the atlantic to the mississippi does not probably exceed seven hundred and fifty miles. on a comparison of this extent with that of several countries in europe, the practicability of rendering our system commensurate to it appears to be demonstrable. it is not a great deal larger than germany, where a diet representing the whole empire is continually assembled; or than poland before the late dismemberment, where another national diet was the depositary of the supreme power. passing by france and spain, we find that in great britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the union. favorable as this view of the subject may be, some observations remain which will place it in a light still more satisfactory. in the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. the subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. were it proposed by the plan of the convention to abolish the governments of the particular states, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction. a second observation to be made is that the immediate object of the federal constitution is to secure the union of the thirteen primitive states, which we know to be practicable; and to add to them such other states as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable. the arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left to those whom further discoveries and experience will render more equal to the task. let it be remarked, in the third place, that the intercourse throughout the union will be facilitated by new improvements. roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the whole extent of the thirteen states. the communication between the western and atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete. a fourth and still more important consideration is, that as almost every state will, on one side or other, be a frontier, and will thus find, in regard to its safety, an inducement to make some sacrifices for the sake of the general protection; so the states which lie at the greatest distance from the heart of the union, and which, of course, may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its strength and resources. it may be inconvenient for georgia, or the states forming our western or northeastern borders, to send their representatives to the seat of government; but they would find it more so to struggle alone against an invading enemy, or even to support alone the whole expense of those precautions which may be dictated by the neighborhood of continual danger. if they should derive less benefit, therefore, from the union in some respects than the less distant states, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout. i submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect; and that you will never suffer difficulties, however formidable in appearance, or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you. hearken not to the unnatural voice which tells you that the people of america, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellowcitizens of one great, respectable, and flourishing empire. hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. no, my countrymen, shut your ears against this unhallowed language. shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of american citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their union, and excite horror at the idea of their becoming aliens, rivals, enemies. and if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces, in order to preserve our liberties and promote our happiness. but why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? is it not the glory of the people of america, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? to this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the american theatre, in favor of private rights and public happiness. had no important step been taken by the leaders of the revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the united states might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. happily for america, happily, we trust, for the whole human race, they pursued a new and more noble course. they accomplished a revolution which has no parallel in the annals of human society. they reared the fabrics of governments which have no model on the face of the globe. they formed the design of a great confederacy, which it is incumbent on their successors to improve and perpetuate. if their works betray imperfections, we wonder at the fewness of them. if they erred most in the structure of the union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide. publius. federalist no. 15 the insufficiency of the present confederation to preserve the union for the independent journal. hamilton to the people of the state of new york. in the course of the preceding papers, i have endeavored, my fellow-citizens, to place before you, in a clear and convincing light, the importance of union to your political safety and happiness. i have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of america together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation. in the sequel of the inquiry through which i propose to accompany you, the truths intended to be inculcated will receive further confirmation from facts and arguments hitherto unnoticed. if the road over which you will still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous which can engage the attention of a free people, that the field through which you have to travel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset the way. it will be my aim to remove the obstacles from your progress in as compendious a manner as it can be done, without sacrificing utility to despatch. in pursuance of the plan which i have laid down for the discussion of the subject, the point next in order to be examined is the "insufficiency of the present confederation to the preservation of the union." it may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new constitution. it must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. the facts that support this opinion are no longer objects of speculation. they have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the union. we may indeed with propriety be said to have reached almost the last stage of national humiliation. there is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience. are there engagements to the performance of which we are held by every tie respectable among men? these are the subjects of constant and unblushing violation. do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence? these remain without any proper or satisfactory provision for their discharge. have we valuable territories and important posts in the possession of a foreign power which, by express stipulations, ought long since to have been surrendered? these are still retained, to the prejudice of our interests, not less than of our rights. are we in a condition to resent or to repel the aggression? we have neither troops, nor treasury, nor government.1 are we even in a condition to remonstrate with dignity? the just imputations on our own faith, in respect to the same treaty, ought first to be removed. are we entitled by nature and compact to a free participation in the navigation of the mississippi? spain excludes us from it. is public credit an indispensable resource in time of public danger? we seem to have abandoned its cause as desperate and irretrievable. is commerce of importance to national wealth? ours is at the lowest point of declension. is respectability in the eyes of foreign powers a safeguard against foreign encroachments? the imbecility of our government even forbids them to treat with us. our ambassadors abroad are the mere pageants of mimic sovereignty. is a violent and unnatural decrease in the value of land a symptom of national distress? the price of improved land in most parts of the country is much lower than can be accounted for by the quantity of waste land at market, and can only be fully explained by that want of private and public confidence, which are so alarmingly prevalent among all ranks, and which have a direct tendency to depreciate property of every kind. is private credit the friend and patron of industry? that most useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. to shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes? this is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed constitution; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity. it is true, as has been before observed that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. while they admit that the government of the united states is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. they seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of state authority; at sovereignty in the union, and complete independence in the members. they still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. this renders a full display of the principal defects of the confederation necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric. the great and radical vice in the construction of the existing confederation is in the principle of legislation for states or governments, in their corporate or collective capacities, and as contradistinguished from the individuals of which they consist. though this principle does not run through all the powers delegated to the union, yet it pervades and governs those on which the efficacy of the rest depends. except as to the rule of appointment, the united states has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of america. the consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the union, yet in practice they are mere recommendations which the states observe or disregard at their option. it is a singular instance of the capriciousness of the human mind, that after all the admonitions we have had from experience on this head, there should still be found men who object to the new constitution, for deviating from a principle which has been found the bane of the old, and which is in itself evidently incompatible with the idea of government; a principle, in short, which, if it is to be executed at all, must substitute the violent and sanguinary agency of the sword to the mild influence of the magistracy. there is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion; and depending for its execution on the good faith of the parties. compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and non-observance, as the interests or passions of the contracting powers dictate. in the early part of the present century there was an epidemical rage in europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. with a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion. if the particular states in this country are disposed to stand in a similar relation to each other, and to drop the project of a general discretionary superintendence, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at least, consistent and practicable abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us. but if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the union to the persons of the citizens, --the only proper objects of government. government implies the power of making laws. it is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. if there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. this penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the coercion of the magistracy, or by the coercion of arms. the first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or states. it is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. in an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it. there was a time when we were told that breaches, by the states, of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the union. this language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. it at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. why has government been instituted at all? because the passions of men will not conform to the dictates of reason and justice, without constraint. has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? the contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. a spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity. in addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. from this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre. this tendency is not difficult to be accounted for. it has its origin in the love of power. power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. this simple proposition will teach us how little reason there is to expect, that the persons intrusted with the administration of the affairs of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. the reverse of this results from the constitution of human nature. if, therefore, the measures of the confederacy cannot be executed without the intervention of the particular administrations, there will be little prospect of their being executed at all. the rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. they will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption. all this will be done; and in a spirit of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead the decision. the same process must be repeated in every member of which the body is constituted; and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part. those who have been conversant in the proceedings of popular assemblies; who have seen how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a number of such assemblies, deliberating at a distance from each other, at different times, and under different impressions, long to co-operate in the same views and pursuits. in our case, the concurrence of thirteen distinct sovereign wills is requisite, under the confederation, to the complete execution of every important measure that proceeds from the union. it has happened as was to have been foreseen. the measures of the union have not been executed; the delinquencies of the states have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand. congress at this time scarcely possess the means of keeping up the forms of administration, till the states can have time to agree upon a more substantial substitute for the present shadow of a federal government. things did not come to this desperate extremity at once. the causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the union. the greater deficiencies of some states furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent states. why should we do more in proportion than those who are embarked with us in the same political voyage? why should we consent to bear more than our proper share of the common burden? these were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not, without hesitation, combat. each state, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins. publius. 1 "i mean for the union." federalist no. 16 the same subject continued (the insufficiency of the present confederation to preserve the union) from the new york packet. tuesday, december 4, 1787. hamilton to the people of the state of new york: the tendency of the principle of legislation for states, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. the confirmations of this fact will be worthy of a distinct and particular examination. i shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the lycian and achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers. this exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: it has been seen that delinquencies in the members of the union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war. it remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. if there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. it would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. independent of this motive of sympathy, if a large and influential state should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those states which were not chargeable with any violation or omission of duty. this would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent states. if associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a confederacy, from the firm union of which they had so much to fear. when the sword is once drawn, the passions of men observe no bounds of moderation. the suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the states against which the arms of the union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. the first war of this kind would probably terminate in a dissolution of the union. this may be considered as the violent death of the confederacy. its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. it is not probable, considering the genius of this country, that the complying states would often be inclined to support the authority of the union by engaging in a war against the non-complying states. they would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. and the guilt of all would thus become the security of all. our past experience has exhibited the operation of this spirit in its full light. there would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. in the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. the pretense of the latter would always be at hand. and the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. it is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of partiality, and of oppression, in the majority that happened to prevail in the national council. it seems to require no pains to prove that the states ought not to prefer a national constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. and yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. the resources of the union would not be equal to the maintenance of an army considerable enough to confine the larger states within the limits of their duty; nor would the means ever be furnished of forming such an army in the first instance. whoever considers the populousness and strength of several of these states singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. a project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity. even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign states, supported by military coercion, has never been found effectual. it has rarely been attempted to be employed, but against the weaker members; and in most instances attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half. the result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed constitution. it must carry its agency to the persons of the citizens. it must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. the majesty of the national authority must be manifested through the medium of the courts of justice. the government of the union, like that of each state, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. it must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular states. to this reasoning it may perhaps be objected, that if any state should be disaffected to the authority of the union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached. the plausibility of this objection will vanish the moment we advert to the essential difference between a mere non-compliance and a direct and active resistance. if the interposition of the state legislatures be necessary to give effect to a measure of the union, they have only not to act, or to act evasively, and the measure is defeated. this neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the constitution. the state leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage. but if the execution of the laws of the national government should not require the intervention of the state legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. no omissions nor evasions would answer the end. they would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. an experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. the success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. if the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. if the people were not tainted with the spirit of their state representatives, they, as the natural guardians of the constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority. if opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the state governments. the magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. as to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional illhumors that do not infect the great body of the community the general government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single member. and as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. when they happen, they commonly amount to revolutions and dismemberments of empire. no form of government can always either avoid or control them. it is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities. publius. federalist no. 17 the same subject continued (the insufficiency of the present confederation to preserve the union) for the independent journal. hamilton to the people of the state of new york: an objection, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of america. it may be said that it would tend to render the government of the union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the states for local purposes. allowing the utmost latitude to the love of power which any reasonable man can require, i confess i am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the states of the authorities of that description. the regulation of the mere domestic police of a state appears to me to hold out slender allurements to ambition. commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. the administration of private justice between the citizens of the same state, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. it is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government. but let it be admitted, for argument's sake, that mere wantonness and lust of domination would be sufficient to beget that disposition; still it may be safely affirmed, that the sense of the constituent body of the national representatives, or, in other words, the people of the several states, would control the indulgence of so extravagant an appetite. it will always be far more easy for the state governments to encroach upon the national authorities than for the national government to encroach upon the state authorities. the proof of this proposition turns upon the greater degree of influence which the state governments if they administer their affairs with uprightness and prudence, will generally possess over the people; a circumstance which at the same time teaches us that there is an inherent and intrinsic weakness in all federal constitutions; and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty. the superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the state administrations would be directed. it is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each state would be apt to feel a stronger bias towards their local governments than towards the government of the union; unless the force of that principle should be destroyed by a much better administration of the latter. this strong propensity of the human heart would find powerful auxiliaries in the objects of state regulation. the variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford. there is one transcendant advantage belonging to the province of the state governments, which alone suffices to place the matter in a clear and satisfactory light,--i mean the ordinary administration of criminal and civil justice. this, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. it is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government. this great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the union. the operations of the national government, on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment. the reasoning on this head has been abundantly exemplified by the experience of all federal constitutions with which we are acquainted, and of all others which have borne the least analogy to them. though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association. there was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of inferior vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience, to the persons of whom they held it. each principal vassal was a kind of sovereign, within his particular demesnes. the consequences of this situation were a continual opposition to authority of the sovereign, and frequent wars between the great barons or chief feudatories themselves. the power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords. this period of european affairs is emphatically styled by historians, the times of feudal anarchy. when the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority. but in general, the power of the barons triumphed over that of the prince; and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or states. in those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. the barons, or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy. had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority. this is not an assertion founded merely in speculation or conjecture. among other illustrations of its truth which might be cited, scotland will furnish a cogent example. the spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of kindred, rendered the aristocracy a constant overmatch for the power of the monarch, till the incorporation with england subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom. the separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government. it will be well if they are not able to counteract its legitimate and necessary authority. the points of similitude consist in the rivalship of power, applicable to both, and in the concentration of large portions of the strength of the community into particular deposits, in one case at the disposal of individuals, in the other case at the disposal of political bodies. a concise review of the events that have attended confederate governments will further illustrate this important doctrine; an inattention to which has been the great source of our political mistakes, and has given our jealousy a direction to the wrong side. this review shall form the subject of some ensuing papers. publius. federalist no. 18 the same subject continued (the insufficiency of the present confederation to preserve the union) for the independent journal. hamilton and madison to the people of the state of new york: among the confederacies of antiquity, the most considerable was that of the grecian republics, associated under the amphictyonic council. from the best accounts transmitted of this celebrated institution, it bore a very instructive analogy to the present confederation of the american states. the members retained the character of independent and sovereign states, and had equal votes in the federal council. this council had a general authority to propose and resolve whatever it judged necessary for the common welfare of greece; to declare and carry on war; to decide, in the last resort, all controversies between the members; to fine the aggressing party; to employ the whole force of the confederacy against the disobedient; to admit new members. the amphictyons were the guardians of religion, and of the immense riches belonging to the temple of delphos, where they had the right of jurisdiction in controversies between the inhabitants and those who came to consult the oracle. as a further provision for the efficacy of the federal powers, they took an oath mutually to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple. in theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes. in several material instances, they exceed the powers enumerated in the articles of confederation. the amphictyons had in their hands the superstition of the times, one of the principal engines by which government was then maintained; they had a declared authority to use coercion against refractory cities, and were bound by oath to exert this authority on the necessary occasions. very different, nevertheless, was the experiment from the theory. the powers, like those of the present congress, were administered by deputies appointed wholly by the cities in their political capacities; and exercised over them in the same capacities. hence the weakness, the disorders, and finally the destruction of the confederacy. the more powerful members, instead of being kept in awe and subordination, tyrannized successively over all the rest. athens, as we learn from demosthenes, was the arbiter of greece seventy-three years. the lacedaemonians next governed it twenty-nine years; at a subsequent period, after the battle of leuctra, the thebans had their turn of domination. it happened but too often, according to plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker; and that judgment went in favor of the most powerful party. even in the midst of defensive and dangerous wars with persia and macedon, the members never acted in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. the intervals of foreign war were filled up by domestic vicissitudes convulsions, and carnage. after the conclusion of the war with xerxes, it appears that the lacedaemonians required that a number of the cities should be turned out of the confederacy for the unfaithful part they had acted. the athenians, finding that the lacedaemonians would lose fewer partisans by such a measure than themselves, and would become masters of the public deliberations, vigorously opposed and defeated the attempt. this piece of history proves at once the inefficiency of the union, the ambition and jealousy of its most powerful members, and the dependent and degraded condition of the rest. the smaller members, though entitled by the theory of their system to revolve in equal pride and majesty around the common center, had become, in fact, satellites of the orbs of primary magnitude. had the greeks, says the abbe milot, been as wise as they were courageous, they would have been admonished by experience of the necessity of a closer union, and would have availed themselves of the peace which followed their success against the persian arms, to establish such a reformation. instead of this obvious policy, athens and sparta, inflated with the victories and the glory they had acquired, became first rivals and then enemies; and did each other infinitely more mischief than they had suffered from xerxes. their mutual jealousies, fears, hatreds, and injuries ended in the celebrated peloponnesian war; which itself ended in the ruin and slavery of the athenians who had begun it. as a weak government, when not at war, is ever agitated by internal dissentions, so these never fail to bring on fresh calamities from abroad. the phocians having ploughed up some consecrated ground belonging to the temple of apollo, the amphictyonic council, according to the superstition of the age, imposed a fine on the sacrilegious offenders. the phocians, being abetted by athens and sparta, refused to submit to the decree. the thebans, with others of the cities, undertook to maintain the authority of the amphictyons, and to avenge the violated god. the latter, being the weaker party, invited the assistance of philip of macedon, who had secretly fostered the contest. philip gladly seized the opportunity of executing the designs he had long planned against the liberties of greece. by his intrigues and bribes he won over to his interests the popular leaders of several cities; by their influence and votes, gained admission into the amphictyonic council; and by his arts and his arms, made himself master of the confederacy. such were the consequences of the fallacious principle on which this interesting establishment was founded. had greece, says a judicious observer on her fate, been united by a stricter confederation, and persevered in her union, she would never have worn the chains of macedon; and might have proved a barrier to the vast projects of rome. the achaean league, as it is called, was another society of grecian republics, which supplies us with valuable instruction. the union here was far more intimate, and its organization much wiser, than in the preceding instance. it will accordingly appear, that though not exempt from a similar catastrophe, it by no means equally deserved it. the cities composing this league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality. the senate, in which they were represented, had the sole and exclusive right of peace and war; of sending and receiving ambassadors; of entering into treaties and alliances; of appointing a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and consent of ten of the senators, not only administered the government in the recess of the senate, but had a great share in its deliberations, when assembled. according to the primitive constitution, there were two praetors associated in the administration; but on trial a single one was preferred. it appears that the cities had all the same laws and customs, the same weights and measures, and the same money. but how far this effect proceeded from the authority of the federal council is left in uncertainty. it is said only that the cities were in a manner compelled to receive the same laws and usages. when lacedaemon was brought into the league by philopoemen, it was attended with an abolition of the institutions and laws of lycurgus, and an adoption of those of the achaeans. the amphictyonic confederacy, of which she had been a member, left her in the full exercise of her government and her legislation. this circumstance alone proves a very material difference in the genius of the two systems. it is much to be regretted that such imperfect monuments remain of this curious political fabric. could its interior structure and regular operation be ascertained, it is probable that more light would be thrown by it on the science of federal government, than by any of the like experiments with which we are acquainted. one important fact seems to be witnessed by all the historians who take notice of achaean affairs. it is, that as well after the renovation of the league by aratus, as before its dissolution by the arts of macedon, there was infinitely more of moderation and justice in the administration of its government, and less of violence and sedition in the people, than were to be found in any of the cities exercising singly all the prerogatives of sovereignty. the abbe mably, in his observations on greece, says that the popular government, which was so tempestuous elsewhere, caused no disorders in the members of the achaean republic, because it was there tempered by the general authority and laws of the confederacy. we are not to conclude too hastily, however, that faction did not, in a certain degree, agitate the particular cities; much less that a due subordination and harmony reigned in the general system. the contrary is sufficiently displayed in the vicissitudes and fate of the republic. whilst the amphictyonic confederacy remained, that of the achaeans, which comprehended the less important cities only, made little figure on the theatre of greece. when the former became a victim to macedon, the latter was spared by the policy of philip and alexander. under the successors of these princes, however, a different policy prevailed. the arts of division were practiced among the achaeans. each city was seduced into a separate interest; the union was dissolved. some of the cities fell under the tyranny of macedonian garrisons; others under that of usurpers springing out of their own confusions. shame and oppression erelong awaken their love of liberty. a few cities reunited. their example was followed by others, as opportunities were found of cutting off their tyrants. the league soon embraced almost the whole peloponnesus. macedon saw its progress; but was hindered by internal dissensions from stopping it. all greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy in sparta and athens, of the rising glory of the achaeans, threw a fatal damp on the enterprise. the dread of the macedonian power induced the league to court the alliance of the kings of egypt and syria, who, as successors of alexander, were rivals of the king of macedon. this policy was defeated by cleomenes, king of sparta, who was led by his ambition to make an unprovoked attack on his neighbors, the achaeans, and who, as an enemy to macedon, had interest enough with the egyptian and syrian princes to effect a breach of their engagements with the league. the achaeans were now reduced to the dilemma of submitting to cleomenes, or of supplicating the aid of macedon, its former oppressor. the latter expedient was adopted. the contests of the greeks always afforded a pleasing opportunity to that powerful neighbor of intermeddling in their affairs. a macedonian army quickly appeared. cleomenes was vanquished. the achaeans soon experienced, as often happens, that a victorious and powerful ally is but another name for a master. all that their most abject compliances could obtain from him was a toleration of the exercise of their laws. philip, who was now on the throne of macedon, soon provoked by his tyrannies, fresh combinations among the greeks. the achaeans, though weakened by internal dissensions and by the revolt of messene, one of its members, being joined by the aetolians and athenians, erected the standard of opposition. finding themselves, though thus supported, unequal to the undertaking, they once more had recourse to the dangerous expedient of introducing the succor of foreign arms. the romans, to whom the invitation was made, eagerly embraced it. philip was conquered; macedon subdued. a new crisis ensued to the league. dissensions broke out among it members. these the romans fostered. callicrates and other popular leaders became mercenary instruments for inveigling their countrymen. the more effectually to nourish discord and disorder the romans had, to the astonishment of those who confided in their sincerity, already proclaimed universal liberty1 throughout greece. with the same insidious views, they now seduced the members from the league, by representing to their pride the violation it committed on their sovereignty. by these arts this union, the last hope of greece, the last hope of ancient liberty, was torn into pieces; and such imbecility and distraction introduced, that the arms of rome found little difficulty in completing the ruin which their arts had commenced. the achaeans were cut to pieces, and achaia loaded with chains, under which it is groaning at this hour. i have thought it not superfluous to give the outlines of this important portion of history; both because it teaches more than one lesson, and because, as a supplement to the outlines of the achaean constitution, it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to tyranny in the head. publius. 1 this was but another name more specious for the independence of the members on the federal head. federalist no. 19 the same subject continued (the insufficiency of the present confederation to preserve the union) for the independent journal. hamilton and madison to the people of the state of new york: the examples of ancient confederacies, cited in my last paper, have not exhausted the source of experimental instruction on this subject. there are existing institutions, founded on a similar principle, which merit particular consideration. the first which presents itself is the germanic body. in the early ages of christianity, germany was occupied by seven distinct nations, who had no common chief. the franks, one of the number, having conquered the gauls, established the kingdom which has taken its name from them. in the ninth century charlemagne, its warlike monarch, carried his victorious arms in every direction; and germany became a part of his vast dominions. on the dismemberment, which took place under his sons, this part was erected into a separate and independent empire. charlemagne and his immediate descendants possessed the reality, as well as the ensigns and dignity of imperial power. but the principal vassals, whose fiefs had become hereditary, and who composed the national diets which charlemagne had not abolished, gradually threw off the yoke and advanced to sovereign jurisdiction and independence. the force of imperial sovereignty was insufficient to restrain such powerful dependants; or to preserve the unity and tranquillity of the empire. the most furious private wars, accompanied with every species of calamity, were carried on between the different princes and states. the imperial authority, unable to maintain the public order, declined by degrees till it was almost extinct in the anarchy, which agitated the long interval between the death of the last emperor of the suabian, and the accession of the first emperor of the austrian lines. in the eleventh century the emperors enjoyed full sovereignty: in the fifteenth they had little more than the symbols and decorations of power. out of this feudal system, which has itself many of the important features of a confederacy, has grown the federal system which constitutes the germanic empire. its powers are vested in a diet representing the component members of the confederacy; in the emperor, who is the executive magistrate, with a negative on the decrees of the diet; and in the imperial chamber and the aulic council, two judiciary tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members. the diet possesses the general power of legislating for the empire; of making war and peace; contracting alliances; assessing quotas of troops and money; constructing fortresses; regulating coin; admitting new members; and subjecting disobedient members to the ban of the empire, by which the party is degraded from his sovereign rights and his possessions forfeited. the members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. and the ban is denounced against such as shall violate any of these restrictions. the members of the diet, as such, are subject in all cases to be judged by the emperor and diet, and in their private capacities by the aulic council and imperial chamber. the prerogatives of the emperor are numerous. the most important of them are: his exclusive right to make propositions to the diet; to negative its resolutions; to name ambassadors; to confer dignities and titles; to fill vacant electorates; to found universities; to grant privileges not injurious to the states of the empire; to receive and apply the public revenues; and generally to watch over the public safety. in certain cases, the electors form a council to him. in quality of emperor, he possesses no territory within the empire, nor receives any revenue for his support. but his revenue and dominions, in other qualities, constitute him one of the most powerful princes in europe. from such a parade of constitutional powers, in the representatives and head of this confederacy, the natural supposition would be, that it must form an exception to the general character which belongs to its kindred systems. nothing would be further from the reality. the fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels. the history of germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the licentiousness of the strong, and the oppression of the weak; of foreign intrusions, and foreign intrigues; of requisitions of men and money disregarded, or partially complied with; of attempts to enforce them, altogether abortive, or attended with slaughter and desolation, involving the innocent with the guilty; of general inbecility, confusion, and misery. in the sixteenth century, the emperor, with one part of the empire on his side, was seen engaged against the other princes and states. in one of the conflicts, the emperor himself was put to flight, and very near being made prisoner by the elector of saxony. the late king of prussia was more than once pitted against his imperial sovereign; and commonly proved an overmatch for him. controversies and wars among the members themselves have been so common, that the german annals are crowded with the bloody pages which describe them. previous to the peace of westphalia, germany was desolated by a war of thirty years, in which the emperor, with one half of the empire, was on one side, and sweden, with the other half, on the opposite side. peace was at length negotiated, and dictated by foreign powers; and the articles of it, to which foreign powers are parties, made a fundamental part of the germanic constitution. if the nation happens, on any emergency, to be more united by the necessity of self-defense, its situation is still deplorable. military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies, that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters. the small body of national troops, which has been judged necessary in time of peace, is defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury. the impossibility of maintaining order and dispensing justice among these sovereign subjects, produced the experiment of dividing the empire into nine or ten circles or districts; of giving them an interior organization, and of charging them with the military execution of the laws against delinquent and contumacious members. this experiment has only served to demonstrate more fully the radical vice of the constitution. each circle is the miniature picture of the deformities of this political monster. they either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. sometimes whole circles are defaulters; and then they increase the mischief which they were instituted to remedy. we may form some judgment of this scheme of military coercion from a sample given by thuanus. in donawerth, a free and imperial city of the circle of suabia, the abb 300 de st. croix enjoyed certain immunities which had been reserved to him. in the exercise of these, on some public occasions, outrages were committed on him by the people of the city. the consequence was that the city was put under the ban of the empire, and the duke of bavaria, though director of another circle, obtained an appointment to enforce it. he soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion, as he had secretly intended from the beginning, to revive an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory,1 he took possession of it in his own name, disarmed, and punished the inhabitants, and reannexed the city to his domains. it may be asked, perhaps, what has so long kept this disjointed machine from falling entirely to pieces? the answer is obvious: the weakness of most of the members, who are unwilling to expose themselves to the mercy of foreign powers; the weakness of most of the principal members, compared with the formidable powers all around them; the vast weight and influence which the emperor derives from his separate and heriditary dominions; and the interest he feels in preserving a system with which his family pride is connected, and which constitutes him the first prince in europe; --these causes support a feeble and precarious union; whilst the repellant quality, incident to the nature of sovereignty, and which time continually strengthens, prevents any reform whatever, founded on a proper consolidation. nor is it to be imagined, if this obstacle could be surmounted, that the neighboring powers would suffer a revolution to take place which would give to the empire the force and preeminence to which it is entitled. foreign nations have long considered themselves as interested in the changes made by events in this constitution; and have, on various occasions, betrayed their policy of perpetuating its anarchy and weakness. if more direct examples were wanting, poland, as a government over local sovereigns, might not improperly be taken notice of. nor could any proof more striking be given of the calamities flowing from such institutions. equally unfit for self-government and self-defense, it has long been at the mercy of its powerful neighbors; who have lately had the mercy to disburden it of one third of its people and territories. the connection among the swiss cantons scarcely amounts to a confederacy; though it is sometimes cited as an instance of the stability of such institutions. they have no common treasury; no common troops even in war; no common coin; no common judicatory; nor any other common mark of sovereignty. they are kept together by the peculiarity of their topographical position; by their individual weakness and insignificancy; by the fear of powerful neighbors, to one of which they were formerly subject; by the few sources of contention among a people of such simple and homogeneous manners; by their joint interest in their dependent possessions; by the mutual aid they stand in need of, for suppressing insurrections and rebellions, an aid expressly stipulated and often required and afforded; and by the necessity of some regular and permanent provision for accomodating disputes among the cantons. the provision is, that the parties at variance shall each choose four judges out of the neutral cantons, who, in case of disagreement, choose an umpire. this tribunal, under an oath of impartiality, pronounces definitive sentence, which all the cantons are bound to enforce. the competency of this regulation may be estimated by a clause in their treaty of 1683, with victor amadeus of savoy; in which he obliges himself to interpose as mediator in disputes between the cantons, and to employ force, if necessary, against the contumacious party. so far as the peculiarity of their case will admit of comparison with that of the united states, it serves to confirm the principle intended to be established. whatever efficacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed. the controversies on the subject of religion, which in three instances have kindled violent and bloody contests, may be said, in fact, to have severed the league. the protestant and catholic cantons have since had their separate diets, where all the most important concerns are adjusted, and which have left the general diet little other business than to take care of the common bailages. that separation had another consequence, which merits attention. it produced opposite alliances with foreign powers: of berne, at the head of the protestant association, with the united provinces; and of luzerne, at the head of the catholic association, with france. publius. 1 pfeffel, "nouvel abreg. chronol. de l'hist., etc., d'allemagne," says the pretext was to indemnify himself for the expense of the expedition. federalist no. 20 the same subject continued (the insufficiency of the present confederation to preserve the union) from the new york packet. tuesday, december 11, 1787. hamilton and madison to the people of the state of new york: the united netherlands are a confederacy of republics, or rather of aristocracies of a very remarkable texture, yet confirming all the lessons derived from those which we have already reviewed. the union is composed of seven coequal and sovereign states, and each state or province is a composition of equal and independent cities. in all important cases, not only the provinces but the cities must be unanimous. the sovereignty of the union is represented by the states-general, consisting usually of about fifty deputies appointed by the provinces. they hold their seats, some for life, some for six, three, and one years; from two provinces they continue in appointment during pleasure. the states-general have authority to enter into treaties and alliances; to make war and peace; to raise armies and equip fleets; to ascertain quotas and demand contributions. in all these cases, however, unanimity and the sanction of their constituents are requisite. they have authority to appoint and receive ambassadors; to execute treaties and alliances already formed; to provide for the collection of duties on imports and exports; to regulate the mint, with a saving to the provincial rights; to govern as sovereigns the dependent territories. the provinces are restrained, unless with the general consent, from entering into foreign treaties; from establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects. a council of state, a chamber of accounts, with five colleges of admiralty, aid and fortify the federal administration. the executive magistrate of the union is the stadtholder, who is now an hereditary prince. his principal weight and influence in the republic are derived from this independent title; from his great patrimonial estates; from his family connections with some of the chief potentates of europe; and, more than all, perhaps, from his being stadtholder in the several provinces, as well as for the union; in which provincial quality he has the appointment of town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and has throughout the power of pardon. as stadtholder of the union, he has, however, considerable prerogatives. in his political capacity he has authority to settle disputes between the provinces, when other methods fail; to assist at the deliberations of the states-general, and at their particular conferences; to give audiences to foreign ambassadors, and to keep agents for his particular affairs at foreign courts. in his military capacity he commands the federal troops, provides for garrisons, and in general regulates military affairs; disposes of all appointments, from colonels to ensigns, and of the governments and posts of fortified towns. in his marine capacity he is admiral-general, and superintends and directs every thing relative to naval forces and other naval affairs; presides in the admiralties in person or by proxy; appoints lieutenant-admirals and other officers; and establishes councils of war, whose sentences are not executed till he approves them. his revenue, exclusive of his private income, amounts to three hundred thousand florins. the standing army which he commands consists of about forty thousand men. such is the nature of the celebrated belgic confederacy, as delineated on parchment. what are the characters which practice has stamped upon it? imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war. it was long ago remarked by grotius, that nothing but the hatred of his countrymen to the house of austria kept them from being ruined by the vices of their constitution. the union of utrecht, says another respectable writer, reposes an authority in the states-general, seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory. the same instrument, says another, obliges each province to levy certain contributions; but this article never could, and probably never will, be executed; because the inland provinces, who have little commerce, cannot pay an equal quota. in matters of contribution, it is the practice to waive the articles of the constitution. the danger of delay obliges the consenting provinces to furnish their quotas, without waiting for the others; and then to obtain reimbursement from the others, by deputations, which are frequent, or otherwise, as they can. the great wealth and influence of the province of holland enable her to effect both these purposes. it has more than once happened, that the deficiencies had to be ultimately collected at the point of the bayonet; a thing practicable, though dreadful, in a confedracy where one of the members exceeds in force all the rest, and where several of them are too small to meditate resistance; but utterly impracticable in one composed of members, several of which are equal to each other in strength and resources, and equal singly to a vigorous and persevering defense. foreign ministers, says sir william temple, who was himself a foreign minister, elude matters taken ad referendum, by tampering with the provinces and cities. in 1726, the treaty of hanover was delayed by these means a whole year. instances of a like nature are numerous and notorious. in critical emergencies, the states-general are often compelled to overleap their constitutional bounds. in 1688, they concluded a treaty of themselves at the risk of their heads. the treaty of westphalia, in 1648, by which their independence was formerly and finally recognized, was concluded without the consent of zealand. even as recently as the last treaty of peace with great britain, the constitutional principle of unanimity was departed from. a weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities. notwithstanding the calamities produced by the stadtholdership, it has been supposed that without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. "under such a government," says the abbe mably, "the union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. this spring is the stadtholder." it is remarked by sir william temple, "that in the intermissions of the stadtholdership, holland, by her riches and her authority, which drew the others into a sort of dependence, supplied the place." these are not the only circumstances which have controlled the tendency to anarchy and dissolution. the surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always at their mercy. the true patriots have long bewailed the fatal tendency of these vices, and have made no less than four regular experiments by extraordinary assemblies, convened for the special purpose, to apply a remedy. as many times has their laudable zeal found it impossible to unite the public councils in reforming the known, the acknowledged, the fatal evils of the existing constitution. let us pause, my fellow-citizens, for one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to heaven, for the propitious concord which has distinguished the consultations for our political happiness. a design was also conceived of establishing a general tax to be administered by the federal authority. this also had its adversaries and failed. this unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their destiny. all nations have their eyes fixed on the awful spectacle. the first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: the next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own. i make no apology for having dwelt so long on the contemplation of these federal precedents. experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. the important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting violence in place of law, or the destructive coercion of the sword in place of the mild and salutary coercion of the magistracy. publius. federalist no. 21 other defects of the present confederation for the independent journal. hamilton to the people of the state of new york: having in the three last numbers taken a summary review of the principal circumstances and events which have depicted the genius and fate of other confederate governments, i shall now proceed in the enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves. to form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease. the next most palpable defect of the subsisting confederation, is the total want of a sanction to its laws. the united states, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode. there is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the states, it must be by inference and construction, in the face of that part of the second article, by which it is declared, "that each state shall retain every power, jurisdiction, and right, not expressly delegated to the united states in congress assembled." there is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. if we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the united states afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. it will appear, from the specimens which have been cited, that the american confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world. the want of a mutual guaranty of the state governments is another capital imperfection in the federal plan. there is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations. the want of a guaranty, though it might in its consequences endanger the union, does not so immediately attack its existence as the want of a constitutional sanction to its laws. without a guaranty the assistance to be derived from the union in repelling those domestic dangers which may sometimes threaten the existence of the state constitutions, must be renounced. usurpation may rear its crest in each state, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. a successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the union to the friends and supporters of the government. the tempestuous situation from which massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a caesar or by a cromwell? who can predict what effect a despotism, established in massachusetts, would have upon the liberties of new hampshire or rhode island, of connecticut or new york? the inordinate pride of state importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an officious interference in the domestic concerns of the members. a scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. it could be no impediment to reforms of the state constitution by a majority of the people in a legal and peaceable mode. this right would remain undiminished. the guaranty could only operate against changes to be effected by violence. towards the preventions of calamities of this kind, too many checks cannot be provided. the peace of society and the stability of government depend absolutely on the efficacy of the precautions adopted on this head. where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the state. the natural cure for an ill-administration, in a popular or representative constitution, is a change of men. a guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and outrages of faction and sedition in the community. the principle of regulating the contributions of the states to the common treasury by quotas is another fundamental error in the confederation. its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. i speak of it now solely with a view to equality among the states. those who have been accustomed to contemplate the circumstances which produce and constitute national wealth, must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained. neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of state contributions, has any pretension to being a just representative. if we compare the wealth of the united netherlands with that of russia or germany, or even of france, and if we at the same time compare the total value of the lands and the aggregate population of that contracted district with the total value of the lands and the aggregate population of the immense regions of either of the three last-mentioned countries, we shall at once discover that there is no comparison between the proportion of either of these two objects and that of the relative wealth of those nations. if the like parallel were to be run between several of the american states, it would furnish a like result. let virginia be contrasted with north carolina, pennsylvania with connecticut, or maryland with new jersey, and we shall be convinced that the respective abilities of those states, in relation to revenue, bear little or no analogy to their comparative stock in lands or to their comparative population. the position may be equally illustrated by a similar process between the counties of the same state. no man who is acquainted with the state of new york will doubt that the active wealth of king's county bears a much greater proportion to that of montgomery than it would appear to be if we should take either the total value of the lands or the total number of the people as a criterion! the wealth of nations depends upon an infinite variety of causes. situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry, these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the relative opulence and riches of different countries. the consequence clearly is that there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. the attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression. this inequality would of itself be sufficient in america to work the eventual destruction of the union, if any mode of enforcing a compliance with its requisitions could be devised. the suffering states would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some states, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. this, however, is an evil inseparable from the principle of quotas and requisitions. there is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them. the amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. the rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions. if inequalities should arise in some states from duties on particular objects, these will, in all probability, be counterbalanced by proportional inequalities in other states, from the duties on other objects. in the course of time and things, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. or, if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised. it is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. they prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. when applied to this object, the saying is as just as it is witty, that, "in political arithmetic, two and two do not always make four." if duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. this forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them. impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. either the value of land, or the number of the people, may serve as a standard. the state of agriculture and the populousness of a country have been considered as nearly connected with each other. and, as a rule, for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. in every country it is a herculean task to obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. the expense of an accurate valuation is, in all situations, a formidable objection. in a branch of taxation where no limits to the discretion of the government are to be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be attended with fewer inconveniences than to leave that discretion altogether at large. publius. federalist no. 22 the same subject continued (other defects of the present confederation) from the new york packet. friday, december 14, 1787. hamilton to the people of the state of new york: in addition to the defects already enumerated in the existing federal system, there are others of not less importance, which concur in rendering it altogether unfit for the administration of the affairs of the union. the want of a power to regulate commerce is by all parties allowed to be of the number. the utility of such a power has been anticipated under the first head of our inquiries; and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place. it is indeed evident, on the most superficial view, that there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. the want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the states. no nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the united states, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest. it is not, therefore, to be wondered at that mr. jenkinson, in ushering into the house of commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of great britain, and that it would be prudent to persist in the plan until it should appear whether the american government was likely or not to acquire greater consistency. [1] several states have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the state, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist. the interfering and unneighborly regulations of some states, contrary to the true spirit of the union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the confederacy. "the commerce of the german empire [2] is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which germany is so happily watered are rendered almost useless." though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of state regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens. the power of raising armies, by the most obvious construction of the articles of the confederation, is merely a power of making requisitions upon the states for quotas of men. this practice in the course of the late war, was found replete with obstructions to a vigorous and to an economical system of defense. it gave birth to a competition between the states which created a kind of auction for men. in order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size. the hope of a still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment, and disinclined them from engaging for any considerable periods. hence, slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army. hence, also, those oppressive expedients for raising men which were upon several occasions practiced, and which nothing but the enthusiasm of liberty would have induced the people to endure. this method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden. the states near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions. the immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation. the states which did not pay their proportions of money might at least be charged with their deficiencies; but no account could be formed of the deficiencies in the supplies of men. we shall not, however, see much reason to reget the want of this hope, when we consider how little prospect there is, that the most delinquent states will ever be able to make compensation for their pecuniary failures. the system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of imbecility in the union, and of inequality and injustice among the members. the right of equal suffrage among the states is another exceptionable part of the confederation. every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to rhode island an equal weight in the scale of power with massachusetts, or connecticut, or new york; and to deleware an equal voice in the national deliberations with pennsylvania, or virginia, or north carolina. its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. sophistry may reply, that sovereigns are equal, and that a majority of the votes of the states will be a majority of confederated america. but this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. it may happen that this majority of states is a small minority of the people of america [3]; and two thirds of the people of america could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. the larger states would after a while revolt from the idea of receiving the law from the smaller. to acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. it is neither rational to expect the first, nor just to require the last. the smaller states, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration. it may be objected to this, that not seven but nine states, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine states would always comprehend a majority of the union. but this does not obviate the impropriety of an equal vote between states of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine states which contain less than a majority of the people [4]; and it is constitutionally possible that these nine may give the vote. besides, there are matters of considerable moment determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven states, would extend its operation to interests of the first magnitude. in addition to this, it is to be observed that there is a probability of an increase in the number of states, and no provision for a proportional augmentation of the ratio of votes. but this is not all: what at first sight may seem a remedy, is, in reality, a poison. to give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. congress, from the nonattendance of a few states, have been frequently in the situation of a polish diet, where a single vote has been sufficient to put a stop to all their movements. a sixtieth part of the union, which is about the proportion of delaware and rhode island, has several times been able to oppose an entire bar to its operations. this is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. the necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. but its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. in those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. the public business must, in some way or other, go forward. if a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. and yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. it is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. its situation must always savor of weakness, sometimes border upon anarchy. it is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. the mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. when the concurrence of a large number is required by the constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods. suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the war, with views that might justify us in making separate terms. in such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice. in the first case, he would have to corrupt a smaller number; in the last, a greater number. upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our exertions. and, in a commercial view, we may be subjected to similar inconveniences. a nation, with which we might have a treaty of commerce, could with much greater facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves. evils of this description ought not to be regarded as imaginary. one of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. an hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. the world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind. in republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments. how much this contributed to the ruin of the ancient commonwealths has been already delineated. it is well known that the deputies of the united provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. the earl of chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major's commission for one of those deputies. and in sweden the parties were alternately bought by france and england in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled. a circumstance which crowns the defects of the confederation remains yet to be mentioned, the want of a judiciary power. laws are a dead letter without courts to expound and define their true meaning and operation. the treaties of the united states, to have any force at all, must be considered as part of the law of the land. their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. to produce uniformity in these determinations, they ought to be submitted, in the last resort, to one supreme tribunal. and this tribunal ought to be instituted under the same authority which forms the treaties themselves. these ingredients are both indispensable. if there is in each state a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. there are endless diversities in the opinions of men. we often see not only different courts but the judges of the came court differing from each other. to avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. this is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. in this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. as often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. the treaties of the united states, under the present constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. the faith, the reputation, the peace of the whole union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. is it possible that foreign nations can either respect or confide in such a government? is it possible that the people of america will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation? in this review of the confederation, i have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. it must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters. the organization of congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the union. a single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed constitution admit, ought to reside in the united states. if that plan should not be adopted, and if the necessity of the union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force an energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. thus, we should create in reality that very tyranny which the adversaries of the new constitution either are, or affect to be, solicitous to avert. it has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the people. resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. owing its ratification to the law of a state, it has been contended that the same authority might repeal the law by which it was ratified. however gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. the possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. the fabric of american empire ought to rest on the solid basis of the consent of the people. the streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority. publius. fna1-@1 this, as nearly as i can recollect, was the sense of his speech on introducing the last bill. fna1-@2 encyclopedia, article "empire." fna1-@3 new hampshire, rhode island, new jersey, delaware, georgia, south carolina, and maryland are a majority of the whole number of the states, but they do not contain one third of the people. fna1-@4 add new york and connecticut to the foregoing seven, and they will be less than a majority. federalist no. 23 the necessity of a government as energetic as the one proposed to the preservation of the union from the new york packet. tuesday, december 18, 1787. hamilton to the people of the state of new york: the necessity of a constitution, at least equally energetic with the one proposed, to the preservation of the union, is the point at the examination of which we are now arrived. this inquiry will naturally divide itself into three branches the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. its distribution and organization will more properly claim our attention under the succeeding head. the principal purposes to be answered by union are these the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the states; the superintendence of our intercourse, political and commercial, with foreign countries. the authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. these powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. the circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. this power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. this is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. it rests upon axioms as simple as they are universal; the means ought to be proportioned to the end; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained. whether there ought to be a federal government intrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. and unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the formation, direction, or support of the national forces. defective as the present confederation has been proved to be, this principle appears to have been fully recognized by the framers of it; though they have not made proper or adequate provision for its exercise. congress have an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their operations. as their requisitions are made constitutionally binding upon the states, who are in fact under the most solemn obligations to furnish the supplies required of them, the intention evidently was that the united states should command whatever resources were by them judged requisite to the "common defense and general welfare." it was presumed that a sense of their true interests, and a regard to the dictates of good faith, would be found sufficient pledges for the punctual performance of the duty of the members to the federal head. the experiment has, however, demonstrated that this expectation was ill-founded and illusory; and the observations, made under the last head, will, i imagine, have sufficed to convince the impartial and discerning, that there is an absolute necessity for an entire change in the first principles of the system; that if we are in earnest about giving the union energy and duration, we must abandon the vain project of legislating upon the states in their collective capacities; we must extend the laws of the federal government to the individual citizens of america; we must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust. the result from all this is that the union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments. if the circumstances of our country are such as to demand a compound instead of a simple, a confederate instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate the objects, as far as it can be done, which shall appertain to the different provinces or departments of power; allowing to each the most ample authority for fulfilling the objects committed to its charge. shall the union be constituted the guardian of the common safety? are fleets and armies and revenues necessary to this purpose? the government of the union must be empowered to pass all laws, and to make all regulations which have relation to them. the same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend. is the administration of justice between the citizens of the same state the proper department of the local governments? these must possess all the authorities which are connected with this object, and with every other that may be allotted to their particular cognizance and direction. not to confer in each case a degree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success. who is likely to make suitable provisions for the public defense, as that body to which the guardianship of the public safety is confided; which, as the centre of information, will best understand the extent and urgency of the dangers that threaten; as the representative of the whole, will feel itself most deeply interested in the preservation of every part; which, from the responsibility implied in the duty assigned to it, will be most sensibly impressed with the necessity of proper exertions; and which, by the extension of its authority throughout the states, can alone establish uniformity and concert in the plans and measures by which the common safety is to be secured? is there not a manifest inconsistency in devolving upon the federal government the care of the general defense, and leaving in the state governments the effective powers by which it is to be provided for? is not a want of co-operation the infallible consequence of such a system? and will not weakness, disorder, an undue distribution of the burdens and calamities of war, an unnecessary and intolerable increase of expense, be its natural and inevitable concomitants? have we not had unequivocal experience of its effects in the course of the revolution which we have just accomplished? every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management. it will indeed deserve the most vigilant and careful attention of the people, to see that it be modeled in such a manner as to admit of its being safely vested with the requisite powers. if any plan which has been, or may be, offered to our consideration, should not, upon a dispassionate inspection, be found to answer this description, it ought to be rejected. a government, the constitution of which renders it unfit to be trusted with all the powers which a free people ought to delegate to any government, would be an unsafe and improper depositary of the national interests. wherever these can with propriety be confided, the coincident powers may safely accompany them. this is the true result of all just reasoning upon the subject. and the adversaries of the plan promulgated by the convention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. they ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers. the powers are not too extensive for the objects of federal administration, or, in other words, for the management of our national interests; nor can any satisfactory argument be framed to show that they are chargeable with such an excess. if it be true, as has been insinuated by some of the writers on the other side, that the difficulty arises from the nature of the thing, and that the extent of the country will not permit us to form a government in which such ample powers can safely be reposed, it would prove that we ought to contract our views, and resort to the expedient of separate confederacies, which will move within more practicable spheres. for the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensible to their proper and efficient management. let us not attempt to reconcile contradictions, but firmly embrace a rational alternative. i trust, however, that the impracticability of one general system cannot be shown. i am greatly mistaken, if any thing of weight has yet been advanced of this tendency; and i flatter myself, that the observations which have been made in the course of these papers have served to place the reverse of that position in as clear a light as any matter still in the womb of time and experience can be susceptible of. this, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government; for any other can certainly never preserve the union of so large an empire. if we embrace the tenets of those who oppose the adoption of the proposed constitution, as the standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the impracticability of a national system pervading entire limits of the present confederacy. publius. federalist no. 24 the powers necessary to the common defense further considered for the independent journal. hamilton to the people of the state of new york: to the powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, i have met with but one specific objection, which, if i understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, i shall now endeavor to show, rests on weak and unsubstantial foundations. it has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to the practice of other free nations, and to the general sense of america, as expressed in most of the existing constitutions. the proprietory of this remark will appear, the moment it is recollected that the objection under consideration turns upon a supposed necessity of restraining the legislative authority of the nation, in the article of military establishments; a principle unheard of, except in one or two of our state constitutions, and rejected in all the rest. a stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the executive the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature. if he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the legislature, not in the executive; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity. disappointed in his first surmise, the person i have supposed would be apt to pursue his conjectures a little further. he would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. it must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor. if, under this impression, he proceeded to pass in review the several state constitutions, how great would be his disappointment to find that two only of them [1] contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the legislature to authorize their existence. still, however he would be persuaded that there must be some plausible foundation for the cry raised on this head. he would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. it would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the states. here, at length, he would expect to meet with a solution of the enigma. no doubt, he would observe to himself, the existing confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions. if he should now apply himself to a careful and critical survey of the articles of confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the state legislatures in this particular, had not imposed a single restraint on that of the united states. if he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! how else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of america as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? if, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings. but however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. from a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed. though a wide ocean separates the united states from europe, yet there are various considerations that warn us against an excess of confidence or security. on one side of us, and stretching far into our rear, are growing settlements subject to the dominion of britain. on the other side, and extending to meet the british settlements, are colonies and establishments subject to the dominion of spain. this situation and the vicinity of the west india islands, belonging to these two powers create between them, in respect to their american possessions and in relation to us, a common interest. the savage tribes on our western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. the improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. britain and spain are among the principal maritime powers of europe. a future concert of views between these nations ought not to be regarded as improbable. the increasing remoteness of consanguinity is every day diminishing the force of the family compact between france and spain. and politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. these circumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger. previous to the revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our western frontier. no person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the indians. these garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. the first is impracticable; and if practicable, would be pernicious. the militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. and if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. it would be as burdensome and injurious to the public as ruinous to private citizens. the latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature. in proportion to our increase in strength, it is probable, nay, it may be said certain, that britain and spain would augment their military establishments in our neighborhood. if we should not be willing to be exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our western settlements might be annoyed. there are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. it may be added that some of those posts will be keys to the trade with the indian nations. can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? to act this part would be to desert all the usual maxims of prudence and policy. if we mean to be a commercial people, or even to be secure on our atlantic side, we must endeavor, as soon as possible, to have a navy. to this purpose there must be dock-yards and arsenals; and for the defense of these, fortifications, and probably garrisons. when a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself. publius. fna1-@1 this statement of the matter is taken from the printed collection of state constitutions. pennsylvania and north carolina are the two which contain the interdiction in these words: "as standing armies in time of peace are dangerous to liberty, they ought not to be kept up." this is, in truth, rather a caution than a prohibition. new hampshire, massachusetts, delaware, and maryland have, in each of their bils of rights, a clause to this effect: "standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature"; which is a formal admission of the authority of the legislature. new york has no bills of rights, and her constitution says not a word about the matter. no bills of rights appear annexed to the constitutions of the other states, except the foregoing, and their constitutions are equally silent. i am told, however that one or two states have bills of rights which do not appear in this collection; but that those also recognize the right of the legislative authority in this respect. federalist no. 25 the same subject continued (the powers necessary to the common defense further considered) from the new york packet. friday, december 21, 1787. hamilton to the people of the state of new york: it may perhaps be urged that the objects enumerated in the preceding number ought to be provided for by the state governments, under the direction of the union. but this would be, in reality, an inversion of the primary principle of our political association, as it would in practice transfer the care of the common defense from the federal head to the individual members: a project oppressive to some states, dangerous to all, and baneful to the confederacy. the territories of britain, spain, and of the indian nations in our neighborhood do not border on particular states, but encircle the union from maine to georgia. the danger, though in different degrees, is therefore common. and the means of guarding against it ought, in like manner, to be the objects of common councils and of a common treasury. it happens that some states, from local situation, are more directly exposed. new york is of this class. upon the plan of separate provisions, new york would have to sustain the whole weight of the establishments requisite to her immediate safety, and to the mediate or ultimate protection of her neighbors. this would neither be equitable as it respected new york nor safe as it respected the other states. various inconveniences would attend such a system. the states, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a considerable time to come, to bear the burden of competent provisions. the security of all would thus be subjected to the parsimony, improvidence, or inability of a part. if the resources of such part becoming more abundant and extensive, its provisions should be proportionally enlarged, the other states would quickly take the alarm at seeing the whole military force of the union in the hands of two or three of its members, and those probably amongst the most powerful. they would each choose to have some counterpoise, and pretenses could easily be contrived. in this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authority. reasons have been already given to induce a supposition that the state governments will too naturally be prone to a rivalship with that of the union, the foundation of which will be the love of power; and that in any contest between the federal head and one of its members the people will be most apt to unite with their local government. if, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the union. on the other hand, the liberty of the people would be less safe in this state of things than in that which left the national forces in the hands of the national government. as far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. for it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion. the framers of the existing confederation, fully aware of the danger to the union from the separate possession of military forces by the states, have, in express terms, prohibited them from having either ships or troops, unless with the consent of congress. the truth is, that the existence of a federal government and military establishments under state authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions. there are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. the design of the objection, which has been mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it is designed the prohibition should extend; whether to raising armies as well as to keeping them up in a season of tranquillity or not. if it be confined to the latter it will have no precise signification, and it will be ineffectual for the purpose intended. when armies are once raised what shall be denominated "keeping them up," contrary to the sense of the constitution? what time shall be requisite to ascertain the violation? shall it be a week, a month, a year? or shall we say they may be continued as long as the danger which occasioned their being raised continues? this would be to admit that they might be kept up in time of peace, against threatening or impending danger, which would be at once to deviate from the literal meaning of the prohibition, and to introduce an extensive latitude of construction. who shall judge of the continuance of the danger? this must undoubtedly be submitted to the national government, and the matter would then be brought to this issue, that the national government, to provide against apprehended danger, might in the first instance raise troops, and might afterwards keep them on foot as long as they supposed the peace or safety of the community was in any degree of jeopardy. it is easy to perceive that a discretion so latitudinary as this would afford ample room for eluding the force of the provision. the supposed utility of a provision of this kind can only be founded on the supposed probability, or at least possibility, of a combination between the executive and the legislative, in some scheme of usurpation. should this at any time happen, how easy would it be to fabricate pretenses of approaching danger! indian hostilities, instigated by spain or britain, would always be at hand. provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions. if we can reasonably presume such a combination to have been formed, and that the enterprise is warranted by a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext, may be applied to the execution of the project. if, to obviate this consequence, it should be resolved to extend the prohibition to the raising of armies in time of peace, the united states would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its constitution to prepare for defense, before it was actually invaded. as the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our territories must be waited for, as the legal warrant to the government to begin its levies of men for the protection of the state. we must receive the blow, before we could even prepare to return it. all that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. we must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation. here i expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. this doctrine, in substance, had like to have lost us our independence. it cost millions to the united states that might have been saved. the facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. the steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. considerations of economy, not less than of stability and vigor, confirm this position. the american militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. war, like most other things, is a science to be acquired and perfected by diligence, by perserverance, by time, and by practice. all violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself. pennsylvania, at this instant, affords an example of the truth of this remark. the bill of rights of that state declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace. the conduct of massachusetts affords a lesson on the same subject, though on different ground. that state (without waiting for the sanction of congress, as the articles of the confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. the particular constitution of massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. it also teaches us, in its application to the united states, how little the rights of a feeble government are likely to be respected, even by its own constituents. and it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity. it was a fundamental maxim of the lacedaemonian commonwealth, that the post of admiral should not be conferred twice on the same person. the peloponnesian confederates, having suffered a severe defeat at sea from the athenians, demanded lysander, who had before served with success in that capacity, to command the combined fleets. the lacedaemonians, to gratify their allies, and yet preserve the semblance of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing lysander with the real power of admiral, under the nominal title of vice-admiral. this instance is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples; which is, that nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society. wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable. publius. federalist no. 26 the idea of restraining the legislative authority in regard to the common defense considered for the independent journal. hamilton to the people of the state of new york: it was a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between power and privilege, and combines the energy of government with the security of private rights. a failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better. the idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. we have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, pennsylvania and north carolina are the only two states by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority. the opponents of the proposed constitution combat, in this respect, the general decision of america; and instead of being taught by experience the propriety of correcting any extremes into which we may have heretofore run, they appear disposed to conduct us into others still more dangerous, and more extravagant. as if the tone of government had been found too high, or too rigid, the doctrines they teach are calculated to induce us to depress or to relax it, by expedients which, upon other occasions, have been condemned or forborne. it may be affirmed without the imputation of invective, that if the principles they inculcate, on various points, could so far obtain as to become the popular creed, they would utterly unfit the people of this country for any species of government whatever. but a danger of this kind is not to be apprehended. the citizens of america have too much discernment to be argued into anarchy. and i am much mistaken, if experience has not wrought a deep and solemn conviction in the public mind, that greater energy of government is essential to the welfare and prosperity of the community. it may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the exclusion of military establishments in time of peace. though in speculative minds it may arise from a contemplation of the nature and tendency of such institutions, fortified by the events that have happened in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which we derive from the nation from whom the inhabitants of these states have in general sprung. in england, for a long time after the norman conquest, the authority of the monarch was almost unlimited. inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. but it was not till the revolution in 1688, which elevated the prince of orange to the throne of great britain, that english liberty was completely triumphant. as incident to the undefined power of making war, an acknowledged prerogative of the crown, charles ii. had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. and this number james ii. increased to 30,000; who were paid out of his civil list. at the revolution, to abolish the exercise of so dangerous an authority, it became an article of the bill of rights then framed, that "the raising or keeping a standing army within the kingdom in time of peace, unless with the consent of parliament, was against law." in that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. the patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. they were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community. from the same source, the people of america may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace. the circumstances of a revolution quickened the public sensibility on every point connected with the security of popular rights, and in some instances raise the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic. the attempts of two of the states to restrict the authority of the legislature in the article of military establishments, are of the number of these instances. the principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies. even in some of the states, where this error was not adopted, we find unnecessary declarations that standing armies ought not to be kept up, in time of peace, without the consent of the legislature. i call them unnecessary, because the reason which had introduced a similar provision into the english bill of rights is not applicable to any of the state constitutions. the power of raising armies at all, under those constitutions, can by no construction be deemed to reside anywhere else, than in the legislatures themselves; and it was superfluous, if not absurd, to declare that a matter should not be done without the consent of a body, which alone had the power of doing it. accordingly, in some of these constitutions, and among others, in that of this state of new york, which has been justly celebrated, both in europe and america, as one of the best of the forms of government established in this country, there is a total silence upon the subject. it is remarkable, that even in the two states which seem to have meditated an interdiction of military establishments in time of peace, the mode of expression made use of is rather cautionary than prohibitory. it is not said, that standing armies shall not be kept up, but that they ought not to be kept up, in time of peace. this ambiguity of terms appears to have been the result of a conflict between jealousy and conviction; between the desire of excluding such establishments at all events, and the persuasion that an absolute exclusion would be unwise and unsafe. can it be doubted that such a provision, whenever the situation of public affairs was understood to require a departure from it, would be interpreted by the legislature into a mere admonition, and would be made to yield to the necessities or supposed necessities of the state? let the fact already mentioned, with respect to pennsylvania, decide. what then (it may be asked) is the use of such a provision, if it cease to operate the moment there is an inclination to disregard it? let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new constitution, for restraining the appropriations of money for military purposes to the period of two years. the former, by aiming at too much, is calculated to effect nothing; the latter, by steering clear of an imprudent extreme, and by being perfectly compatible with a proper provision for the exigencies of the nation, will have a salutary and powerful operation. the legislature of the united states will be obliged, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. they are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. as the spirit of party, in different degrees, must be expected to infect all political bodies, there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. the provision for the support of a military force will always be a favorable topic for declamation. as often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. independent of parties in the national legislature itself, as often as the period of discussion arrived, the state legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the voice, but, if necessary, the arm of their discontent. schemes to subvert the liberties of a great community require time to mature them for execution. an army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. is it probable that such a combination would exist at all? is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? is it presumable, that every man, the instant he took his seat in the national senate or house of representatives, would commence a traitor to his constituents and to his country? can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? if such presumptions can fairly be made, there ought at once to be an end of all delegated authority. the people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many states as there are counties, in order that they may be able to manage their own concerns in person. if such suppositions could even be reasonably made, still the concealment of the design, for any duration, would be impracticable. it would be announced, by the very circumstance of augmenting the army to so great an extent in time of profound peace. what colorable reason could be assigned, in a country so situated, for such vast augmentations of the military force? it is impossible that the people could be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery. it has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. but the question again recurs, upon what pretense could he be put in possession of a force of that magnitude in time of peace? if we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is levelled against the power of keeping up troops in time of peace. few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamaties for which there is neither preventative nor cure. it cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defense. but it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the latter situation. it is not easy to conceive a possibility that dangers so formidable can assail the whole union, as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. but in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable. publius. federalist no. 27 the same subject continued (the idea of restraining the legislative authority in regard to the common defense considered) from the new york packet. tuesday, december 25, 1787. hamilton to the people of the state of new york: it has been urged, in different shapes, that a constitution of the kind proposed by the convention cannot operate without the aid of a military force to execute its laws. this, however, like most other things that have been alleged on that side, rests on mere general assertion, unsupported by any precise or intelligible designation of the reasons upon which it is founded. as far as i have been able to divine the latent meaning of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature. waiving any exception that might be taken to the inaccuracy or inexplicitness of the distinction between internal and external, let us inquire what ground there is to presuppose that disinclination in the people. unless we presume at the same time that the powers of the general government will be worse administered than those of the state government, there seems to be no room for the presumption of ill-will, disaffection, or opposition in the people. i believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration. it must be admitted that there are exceptions to this rule; but these exceptions depend so entirely on accidental causes, that they cannot be considered as having any relation to the intrinsic merits or demerits of a constitution. these can only be judged of by general principles and maxims. various reasons have been suggested, in the course of these papers, to induce a probability that the general government will be better administered than the particular governments; the principal of which reasons are that the extension of the spheres of election will present a greater option, or latitude of choice, to the people; that through the medium of the state legislatures which are select bodies of men, and which are to appoint the members of the national senate there is reason to expect that this branch will generally be composed with peculiar care and judgment; that these circumstances promise greater knowledge and more extensive information in the national councils, and that they will be less apt to be tainted by the spirit of faction, and more out of the reach of those occasional ill-humors, or temporary prejudices and propensities, which, in smaller societies, frequently contaminate the public councils, beget injustice and oppression of a part of the community, and engender schemes which, though they gratify a momentary inclination or desire, terminate in general distress, dissatisfaction, and disgust. several additional reasons of considerable force, to fortify that probability, will occur when we come to survey, with a more critical eye, the interior structure of the edifice which we are invited to erect. it will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members. the hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. will not the government of the union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole confederacy, be more likely to repress the former sentiment and to inspire the latter, than that of a single state, which can only command the resources within itself? a turbulent faction in a state may easily suppose itself able to contend with the friends to the government in that state; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the union. if this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the confederacy than to that of a single member. i will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. man is very much a creature of habit. a thing that rarely strikes his senses will generally have but little influence upon his mind. a government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. the inference is, that the authority of the union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. the more it circulates through those channels and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion. one thing, at all events, must be evident, that a government like the one proposed would bid much fairer to avoid the necessity of using force, than that species of league contend for by most of its opponents; the authority of which should only operate upon the states in their political or collective capacities. it has been shown that in such a confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the natural offspring of the very frame of the government; and that as often as these happen, they can only be redressed, if at all, by war and violence. the plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several states, will enable the government to employ the ordinary magistracy of each, in the execution of its laws. it is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each state, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole union. it merits particular attention in this place, that the laws of the confederacy, as to the enumerated and legitimate objects of its jurisdiction, will become the supreme law of the land; to the observance of which all officers, legislative, executive, and judicial, in each state, will be bound by the sanctity of an oath. thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws. [1%] any man who will pursue, by his own reflections, the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the union, if its powers are administered with a common share of prudence. if we will arbitrarily suppose the contrary, we may deduce any inferences we please from the supposition; for it is certainly possible, by an injudicious exercise of the authorities of the best government that ever was, or ever can be instituted, to provoke and precipitate the people into the wildest excesses. but though the adversaries of the proposed constitution should presume that the national rulers would be insensible to the motives of public good, or to the obligations of duty, i would still ask them how the interests of ambition, or the views of encroachment, can be promoted by such a conduct? publius. fna1-@1 the sophistry which has been employed to show that this will tend to the destruction of the state governments, will, in its will, in its proper place, be fully detected. federalist no. 28 the same subject continued (the idea of restraining the legislative authority in regard to the common defense considered) for the independent journal. hamilton to the people of the state of new york: that there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. should such emergencies at any time happen under the national government, there could be no remedy but force. the means to be employed must be proportioned to the extent of the mischief. if it should be a slight commotion in a small part of a state, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. an insurrection, whatever may be its immediate cause, eventually endangers all government. regard to the public peace, if not to the rights of the union, would engage the citizens to whom the contagion had not communicated itself to oppose the insurgents; and if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support. if, on the contrary, the insurrection should pervade a whole state, or a principal part of it, the employment of a different kind of force might become unavoidable. it appears that massachusetts found it necessary to raise troops for repressing the disorders within that state; that pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. suppose the state of new york had been inclined to re-establish her lost jurisdiction over the inhabitants of vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? would she not have been compelled to raise and to maintain a more regular force for the execution of her design? if it must then be admitted that the necessity of recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the state governments themselves, why should the possibility, that the national government might be under a like necessity, in similar extremities, be made an objection to its existence? is it not surprising that men who declare an attachment to the union in the abstract, should urge as an objection to the proposed constitution what applies with tenfold weight to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of civil society upon an enlarged scale? who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics? let us pursue this examination in another light. suppose, in lieu of one general system, two, or three, or even four confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these confederacies? would not each of them be exposed to the same casualties; and when these happened, be obliged to have recourse to the same expedients for upholding its authority which are objected to in a government for all the states? would the militia, in this supposition, be more ready or more able to support the federal authority than in the case of a general union? all candid and intelligent men must, upon due consideration, acknowledge that the principle of the objection is equally applicable to either of the two cases; and that whether we have one government for all the states, or different governments for different parcels of them, or even if there should be an entire separation of the states, there might sometimes be a necessity to make use of a force constituted differently from the militia, to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions. independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. this is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society. [1] if the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. in a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. the citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. the usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. the smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. in this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance. the obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. the natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. but in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. the people, by throwing themselves into either scale, will infallibly make it preponderate. if their rights are invaded by either, they can make use of the other as the instrument of redress. how wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized! it may safely be received as an axiom in our political system, that the state governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. the legislatures will have better means of information. they can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. they can readily communicate with each other in the different states, and unite their common forces for the protection of their common liberty. the great extent of the country is a further security. we have already experienced its utility against the attacks of a foreign power. and it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. if the federal army should be able to quell the resistance of one state, the distant states would have it in their power to make head with fresh forces. the advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive. we should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. for a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. when will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their state governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? the apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning. publius. fna1-@1 its full efficacy will be examined hereafter. federalist no. 29 concerning the militia from the daily advertiser. thursday, january 10, 1788 hamilton to the people of the state of new york: the power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the confederacy. it requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. it would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. this desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. it is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the united states, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress." of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. if a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. if standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the state is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. if the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. if it cannot avail itself of the former, it will be obliged to recur to the latter. to render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. in order to cast an odium upon the power of calling forth the militia to execute the laws of the union, it has been remarked that there is nowhere any provision in the proposed constitution for calling out the posse comitatus, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. there is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. the same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the posse comitatus. the latter, fortunately, is as much short of the truth as the former exceeds it. it would be as absurd to doubt, that a right to pass all laws necessary and proper to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. it being therefore evident that the supposition of a want of power to require the aid of the posse comitatus is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. what reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? what shall we think of the motives which could induce men of sense to reason in this manner? how shall we prevent a conflict between charity and judgment? by a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. it is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. what plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. but so far from viewing the matter in the same light with those who object to select corps as dangerous, were the constitution ratified, and were i to deliver my sentiments to a member of the federal legislature from this state on the subject of a militia establishment, i should hold to him, in substance, the following discourse: "the project of disciplining all the militia of the united states is as futile as it would be injurious, if it were capable of being carried into execution. a tolerable expertness in military movements is a business that requires time and practice. it is not a day, or even a week, that will suffice for the attainment of it. to oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. it would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the states. to attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. "but though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. the attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. by thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the state shall require it. this will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. this appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist." thus differently from the adversaries of the proposed constitution should i reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. but how the national legislature may reason on the point, is a thing which neither they nor i can foresee. there is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? what shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? what reasonable cause of apprehension can be inferred from a power in the union to prescribe regulations for the militia, and to command its services when necessary, while the particular states are to have the sole and exclusive appointment of the officers? if it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the states ought at once to extinguish it. there can be no doubt that this circumstance will always secure to them a preponderating influence over the militia. in reading many of the publications against the constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes "gorgons, hydras, and chimeras dire"; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster. a sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. that of new hampshire is to be marched to georgia, of georgia to new hampshire, of new york to kentucky, and of kentucky to lake champlain. nay, the debts due to the french and dutch are to be paid in militiamen instead of louis d'ors and ducats. at one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of massachusetts; and that of massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic virginians. do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of america for infallible truths? if there should be an army to be made use of as the engine of despotism, what need of the militia? if there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? is this the way in which usurpers stride to dominion over a numerous and enlightened nation? do they begin by exciting the detestation of the very instruments of their intended usurpations? do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? or are they the inflammatory ravings of incendiaries or distempered enthusiasts? if we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs. in times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring state should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. this was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. if the power of affording it be placed under the direction of the union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of selfpreservation to the too feeble impulses of duty and sympathy. publius. federalist no. 30 concerning the general power of taxation from the new york packet. friday, december 28, 1787. hamilton to the people of the state of new york: it has been already observed that the federal government ought to possess the power of providing for the support of the national forces; in which proposition was intended to be included the expense of raising troops, of building and equipping fleets, and all other expenses in any wise connected with military arrangements and operations. but these are not the only objects to which the jurisdiction of the union, in respect to revenue, must necessarily be empowered to extend. it must embrace a provision for the support of the national civil list; for the payment of the national debts contracted, or that may be contracted; and, in general, for all those matters which will call for disbursements out of the national treasury. the conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation, in one shape or another. money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. a complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. from a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short course of time, perish. in the ottoman or turkish empire, the sovereign, though in other respects absolute master of the lives and fortunes of his subjects, has no right to impose a new tax. the consequence is that he permits the bashaws or governors of provinces to pillage the people without mercy; and, in turn, squeezes out of them the sums of which he stands in need, to satisfy his own exigencies and those of the state. in america, from a like cause, the government of the union has gradually dwindled into a state of decay, approaching nearly to annihilation. who can doubt, that the happiness of the people in both countries would be promoted by competent authorities in the proper hands, to provide the revenues which the necessities of the public might require? the present confederation, feeble as it is intended to repose in the united states, an unlimited power of providing for the pecuniary wants of the union. but proceeding upon an erroneous principle, it has been done in such a manner as entirely to have frustrated the intention. congress, by the articles which compose that compact (as has already been stated), are authorized to ascertain and call for any sums of money necessary, in their judgment, to the service of the united states; and their requisitions, if conformable to the rule of apportionment, are in every constitutional sense obligatory upon the states. these have no right to question the propriety of the demand; no discretion beyond that of devising the ways and means of furnishing the sums demanded. but though this be strictly and truly the case; though the assumption of such a right would be an infringement of the articles of union; though it may seldom or never have been avowedly claimed, yet in practice it has been constantly exercised, and would continue to be so, as long as the revenues of the confederacy should remain dependent on the intermediate agency of its members. what the consequences of this system have been, is within the knowledge of every man the least conversant in our public affairs, and has been amply unfolded in different parts of these inquiries. it is this which has chiefly contributed to reduce us to a situation, which affords ample cause both of mortification to ourselves, and of triumph to our enemies. what remedy can there be for this situation, but in a change of the system which has produced it in a change of the fallacious and delusive system of quotas and requisitions? what substitute can there be imagined for this ignis fatuus in finance, but that of permitting the national government to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government? ingenious men may declaim with plausibility on any subject; but no human ingenuity can point out any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies of the public treasury. the more intelligent adversaries of the new constitution admit the force of this reasoning; but they qualify their admission by a distinction between what they call internal and external taxation. the former they would reserve to the state governments; the latter, which they explain into commercial imposts, or rather duties on imported articles, they declare themselves willing to concede to the federal head. this distinction, however, would violate the maxim of good sense and sound policy, which dictates that every power ought to be in proportion to its object; and would still leave the general government in a kind of tutelage to the state governments, inconsistent with every idea of vigor or efficiency. who can pretend that commercial imposts are, or would be, alone equal to the present and future exigencies of the union? taking into the account the existing debt, foreign and domestic, upon any plan of extinguishment which a man moderately impressed with the importance of public justice and public credit could approve, in addition to the establishments which all parties will acknowledge to be necessary, we could not reasonably flatter ourselves, that this resource alone, upon the most improved scale, would even suffice for its present necessities. its future necessities admit not of calculation or limitation; and upon the principle, more than once adverted to, the power of making provision for them as they arise ought to be equally unconfined. i believe it may be regarded as a position warranted by the history of mankind, that, in the usual progress of things, the necessities of a nation, in every stage of its existence, will be found at least equal to its resources. to say that deficiencies may be provided for by requisitions upon the states, is on the one hand to acknowledge that this system cannot be depended upon, and on the other hand to depend upon it for every thing beyond a certain limit. those who have carefully attended to its vices and deformities as they have been exhibited by experience or delineated in the course of these papers, must feel invincible repugnancy to trusting the national interests in any degree to its operation. its inevitable tendency, whenever it is brought into activity, must be to enfeeble the union, and sow the seeds of discord and contention between the federal head and its members, and between the members themselves. can it be expected that the deficiencies would be better supplied in this mode than the total wants of the union have heretofore been supplied in the same mode? it ought to be recollected that if less will be required from the states, they will have proportionably less means to answer the demand. if the opinions of those who contend for the distinction which has been mentioned were to be received as evidence of truth, one would be led to conclude that there was some known point in the economy of national affairs at which it would be safe to stop and to say: thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. how is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? how can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? how can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? how will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? how can it undertake or execute any liberal or enlarged plans of public good? let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged. we will presume, for argument's sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the union. thus circumstanced, a war breaks out. what would be the probable conduct of the government in such an emergency? taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defense of the state? it is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety. to imagine that at such a crisis credit might be dispensed with, would be the extreme of infatuation. in the modern system of war, nations the most wealthy are obliged to have recourse to large loans. a country so little opulent as ours must feel this necessity in a much stronger degree. but who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying? the loans it might be able to procure would be as limited in their extent as burdensome in their conditions. they would be made upon the same principles that usurers commonly lend to bankrupt and fraudulent debtors, with a sparing hand and at enormous premiums. it may perhaps be imagined that, from the scantiness of the resources of the country, the necessity of diverting the established funds in the case supposed would exist, though the national government should possess an unrestrained power of taxation. but two considerations will serve to quiet all apprehension on this head: one is, that we are sure the resources of the community, in their full extent, will be brought into activity for the benefit of the union; the other is, that whatever deficiences there may be, can without difficulty be supplied by loans. the power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require. foreigners, as well as the citizens of america, could then reasonably repose confidence in its engagements; but to depend upon a government that must itself depend upon thirteen other governments for the means of fulfilling its contracts, when once its situation is clearly understood, would require a degree of credulity not often to be met with in the pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice. reflections of this kind may have trifling weight with men who hope to see realized in america the halcyon scenes of the poetic or fabulous age; but to those who believe we are likely to experience a common portion of the vicissitudes and calamities which have fallen to the lot of other nations, they must appear entitled to serious attention. such men must behold the actual situation of their country with painful solicitude, and deprecate the evils which ambition or revenge might, with too much facility, inflict upon it. publius. federalist no. 31 the same subject continued (concerning the general power of taxation) from the new york packet. tuesday, january 1, 1788. hamilton to the people of the state of new york: in disquisitions of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. these contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. where it produces not this effect, it must proceed either from some defect or disorder in the organs of perception, or from the influence of some strong interest, or passion, or prejudice. of this nature are the maxims in geometry, that "the whole is greater than its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other." of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation. and there are other truths in the two latter sciences which, if they cannot pretend to rank in the class of axioms, are yet such direct inferences from them, and so obvious in themselves, and so agreeable to the natural and unsophisticated dictates of common-sense, that they challenge the assent of a sound and unbiased mind, with a degree of force and conviction almost equally irresistible. the objects of geometrical inquiry are so entirely abstracted from those pursuits which stir up and put in motion the unruly passions of the human heart, that mankind, without difficulty, adopt not only the more simple theorems of the science, but even those abstruse paradoxes which, however they may appear susceptible of demonstration, are at variance with the natural conceptions which the mind, without the aid of philosophy, would be led to entertain upon the subject. the infinite divisibility of matter, or, in other words, the infinite divisibility of a finite thing, extending even to the minutest atom, is a point agreed among geometricians, though not less incomprehensible to common-sense than any of those mysteries in religion, against which the batteries of infidelity have been so industriously leveled. but in the sciences of morals and politics, men are found far less tractable. to a certain degree, it is right and useful that this should be the case. caution and investigation are a necessary armor against error and imposition. but this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. though it cannot be pretended that the principles of moral and political knowledge have, in general, the same degree of certainty with those of the mathematics, yet they have much better claims in this respect than, to judge from the conduct of men in particular situations, we should be disposed to allow them. the obscurity is much oftener in the passions and prejudices of the reasoner than in the subject. men, upon too many occasions, do not give their own understandings fair play; but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties. how else could it happen (if we admit the objectors to be sincere in their opposition), that positions so clear as those which manifest the necessity of a general power of taxation in the government of the union, should have to encounter any adversaries among men of discernment? though these positions have been elsewhere fully stated, they will perhaps not be improperly recapitulated in this place, as introductory to an examination of what may have been offered by way of objection to them. they are in substance as follows: a government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people. as the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community. as revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies. as theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the states in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes. did not experience evince the contrary, it would be natural to conclude that the propriety of a general power of taxation in the national government might safely be permitted to rest on the evidence of these propositions, unassisted by any additional arguments or illustrations. but we find, in fact, that the antagonists of the proposed constitution, so far from acquiescing in their justness or truth, seem to make their principal and most zealous effort against this part of the plan. it may therefore be satisfactory to analyze the arguments with which they combat it. those of them which have been most labored with that view, seem in substance to amount to this: "it is not true, because the exigencies of the union may not be susceptible of limitation, that its power of laying taxes ought to be unconfined. revenue is as requisite to the purposes of the local administrations as to those of the union; and the former are at least of equal importance with the latter to the happiness of the people. it is, therefore, as necessary that the state governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the wants of the union. but an indefinite power of taxation in the latter might, and probably would in time, deprive the former of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. as the laws of the union are to become the supreme law of the land, as it is to have power to pass all laws that may be necessary for carrying into execution the authorities with which it is proposed to vest it, the national government might at any time abolish the taxes imposed for state objects upon the pretense of an interference with its own. it might allege a necessity of doing this in order to give efficacy to the national revenues. and thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the state governments." this mode of reasoning appears sometimes to turn upon the supposition of usurpation in the national government; at other times it seems to be designed only as a deduction from the constitutional operation of its intended powers. it is only in the latter light that it can be admitted to have any pretensions to fairness. the moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. whatever may be the limits or modifications of the powers of the union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution. i repeat here what i have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. the state governments, by their original constitutions, are invested with complete sovereignty. in what does our security consist against usurpation from that quarter? doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people. if the proposed construction of the federal government be found, upon an impartial examination of it, to be such as to afford, to a proper extent, the same species of security, all apprehensions on the score of usurpation ought to be discarded. it should not be forgotten that a disposition in the state governments to encroach upon the rights of the union is quite as probable as a disposition in the union to encroach upon the rights of the state governments. what side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ toward insuring success. as in republics strength is always on the side of the people, and as there are weighty reasons to induce a belief that the state governments will commonly possess most influence over them, the natural conclusion is that such contests will be most apt to end to the disadvantage of the union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members. but it is evident that all conjectures of this kind must be extremely vague and fallible: and that it is by far the safest course to lay them altogether aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in the constitution. every thing beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the state governments. upon this ground, which is evidently the true one, it will not be difficult to obviate the objections which have been made to an indefinite power of taxation in the united states. publius. federalist no. 32 the same subject continued (concerning the general power of taxation) from the daily advertiser. thursday, january 3, 1788. hamilton to the people of the state of new york: although i am of opinion that there would be no real danger of the consequences which seem to be apprehended to the state governments from a power in the union to control them in the levies of money, because i am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the state governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power; yet i am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual states should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. and making this concession, i affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its constitution. an entire consolidation of the states into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. but as the plan of the convention aims only at a partial union or consolidation, the state governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the united states. this exclusive delegation, or rather this alienation, of state sovereignty, would only exist in three cases: where the constitution in express terms granted an exclusive authority to the union; where it granted in one instance an authority to the union, and in another prohibited the states from exercising the like authority; and where it granted an authority to the union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant. i use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; i mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. these three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances: the last clause but one in the eighth section of the first article provides expressly that congress shall exercise "exclusive legislation" over the district to be appropriated as the seat of government. this answers to the first case. the first clause of the same section empowers congress "to lay and collect taxes, duties, imposts and excises"; and the second clause of the tenth section of the same article declares that, "no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws." hence would result an exclusive power in the union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any state; in consequence of which qualification, it now only extends to the duties on imports. this answers to the second case. the third will be found in that clause which declares that congress shall have power "to establish an uniform rule of naturalization throughout the united states." this must necessarily be exclusive; because if each state had power to prescribe a distinct rule, there could not be a uniform rule. a case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. i mean the power of imposing taxes on all articles other than exports and imports. this, i contend, is manifestly a concurrent and coequal authority in the united states and in the individual states. there is plainly no expression in the granting clause which makes that power exclusive in the union. there is no independent clause or sentence which prohibits the states from exercising it. so far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from the restraint laid upon the states in relation to duties on imports and exports. this restriction implies an admission that, if it were not inserted, the states would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the states remains undiminished. in any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the union of the power of laying such duties implied the exclusion of the states, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; i mean that the states, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the union. the restriction in question amounts to what lawyers call a negative pregnant that is, a negation of one thing, and an affirmance of another; a negation of the authority of the states to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. it would be mere sophistry to argue that it was meant to exclude them absolutely from the imposition of taxes of the former kind, and to leave them at liberty to lay others subject to the control of the national legislature. the restraining or prohibitory clause only says, that they shall not, without the consent of congress, lay such duties; and if we are to understand this in the sense last mentioned, the constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the states, with the consent of the national legislature, might tax imports and exports; and that they might tax every other article, unless controlled by the same body. if this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the union? it is evident that this could not have been the intention, and that it will not bear a construction of the kind. as to a supposition of repugnancy between the power of taxation in the states and in the union, it cannot be supported in that sense which would be requisite to work an exclusion of the states. it is, indeed, possible that a tax might be laid on a particular article by a state which might render it inexpedient that thus a further tax should be laid on the same article by the union; but it would not imply a constitutional inability to impose a further tax. the quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. the particular policy of the national and of the state systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. it is not, however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty. the necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the states are not explicitly divested in favor of the union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed constitution. we there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the states, to insert negative clauses prohibiting the exercise of them by the states. the tenth section of the first article consists altogether of such provisions. this circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position i have advanced and refutes every hypothesis to the contrary. publius. federalist no. 33 the same subject continued (concerning the general power of taxation) from the daily advertiser. january 3, 1788. hamilton to the people of the state of new york: the residue of the argument against the provisions of the constitution in respect to taxation is ingrafted upon the following clause. the last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature "to make all laws which shall be necessary and proper for carrying into execution the powers by that constitution vested in the government of the united states, or in any department or officer thereof"; and the second clause of the sixth article declares, "that the constitution and the laws of the united states made in pursuance thereof, and the treaties made by their authority shall be the supreme law of the land, any thing in the constitution or laws of any state to the contrary notwithstanding." these two clauses have been the source of much virulent invective and petulant declamation against the proposed constitution. they have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. they are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. this is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity. what is a power, but the ability or faculty of doing a thing? what is the ability to do a thing, but the power of employing the means necessary to its execution? what is a legislative power, but a power of making laws? what are the means to execute a legislative power but laws? what is the power of laying and collecting taxes, but a legislative power, or a power of making laws, to lay and collect taxes? what are the proper means of executing such a power, but necessary and proper laws? this simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. it conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power; and what does the unfortunate and culumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws necessary and proper to carry it into effect? i have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the union. but the same process will lead to the same result, in relation to all other powers declared in the constitution. and it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws. if there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. the declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless. but suspicion may ask, why then was it introduced? the answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the union. the convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the state governments will finally sap the foundations of the union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare. but it may be again asked, who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the union? i answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and i answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. if the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution as the exigency may suggest and prudence justify. the propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the federal legislature should attempt to vary the law of descent in any state, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the state? suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax imposed by the authority of a state; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its constitution plainly supposes to exist in the state governments? if there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths. but it is said that the laws of the union are to be the supreme law of the land. but what inference can be drawn from this, or what would they amount to, if they were not to be supreme? it is evident they would amount to nothing. a law, by the very meaning of the term, includes supremacy. it is a rule which those to whom it is prescribed are bound to observe. this results from every political association. if individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. if a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. it would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for political power and supremacy. but it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. these will be merely acts of usurpation, and will deserve to be treated as such. hence we perceive that the clause which declares the supremacy of the laws of the union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. it will not, i presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the constitution; which i mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed. though a law, therefore, laying a tax for the use of the united states would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the state, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the constitution. as far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. it is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. the inference from the whole is, that the individual states would, under the proposed constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. it will be shown in the next paper that this concurrent jurisdiction in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the state authority to that of the union. publius. federalist no. 34 the same subject continued (concerning the general power of taxation) from the new york packet. friday, january 4, 1788. hamilton to the people of the state of new york: i flatter myself it has been clearly shown in my last number that the particular states, under the proposed constitution, would have coequal authority with the union in the article of revenue, except as to duties on imports. as this leaves open to the states far the greatest part of the resources of the community, there can be no color for the assertion that they would not possess means as abundant as could be desired for the supply of their own wants, independent of all external control. that the field is sufficiently wide will more fully appear when we come to advert to the inconsiderable share of the public expenses for which it will fall to the lot of the state governments to provide. to argue upon abstract principles that this co-ordinate authority cannot exist, is to set up supposition and theory against fact and reality. however proper such reasonings might be to show that a thing ought not to exist, they are wholly to be rejected when they are made use of to prove that it does not exist contrary to the evidence of the fact itself. it is well known that in the roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to annul or repeal the acts of the other. but a man would have been regarded as frantic who should have attempted at rome to disprove their existence. it will be readily understood that i allude to the comitia centuriata and the comitia tributa. the former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy. and yet these two legislatures coexisted for ages, and the roman republic attained to the utmost height of human greatness. in the case particularly under consideration, there is no such contradiction as appears in the example cited; there is no power on either side to annul the acts of the other. and in practice there is little reason to apprehend any inconvenience; because, in a short course of time, the wants of the states will naturally reduce themselves within a very narrow compass; and in the interim, the united states will, in all probability, find it convenient to abstain wholly from those objects to which the particular states would be inclined to resort. to form a more precise judgment of the true merits of this question, it will be well to advert to the proportion between the objects that will require a federal provision in respect to revenue, and those which will require a state provision. we shall discover that the former are altogether unlimited, and that the latter are circumscribed within very moderate bounds. in pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. there ought to be a capacity to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. it is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the union, and to maintain those establishments which, for some time to come, would suffice in time of peace. but would it be wise, or would it not rather be the extreme of folly, to stop at this point, and to leave the government intrusted with the care of the national defense in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions? if, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise? though it is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable duration of the world. observations confined to the mere prospects of internal attacks can deserve no weight; though even these will admit of no satisfactory calculation: but if we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce. the support of a navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic. admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations. a cloud has been for some time hanging over the european world. if it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? no reasonable man would hastily pronounce that we are entirely out of its reach. or if the combustible materials that now seem to be collecting should be dissipated without coming to maturity, or if a flame should be kindled without extending to us, what security can we have that our tranquillity will long remain undisturbed from some other cause or from some other quarter? let us recollect that peace or war will not always be left to our option; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others. who could have imagined at the conclusion of the last war that france and britain, wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each other? to judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character. what are the chief sources of expense in every government? what has occasioned that enormous accumulation of debts with which several of the european nations are oppressed? the answers plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. the expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense. in the kingdom of great britain, where all the ostentatious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and armies. if, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. if we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good. but let us advert to the large debt which we have ourselves contracted in a single war, and let us only calculate on a common share of the events which disturb the peace of nations, and we shall instantly perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion between the objects of federal and state expenditures. it is true that several of the states, separately, are encumbered with considerable debts, which are an excrescence of the late war. but this cannot happen again, if the proposed system be adopted; and when these debts are discharged, the only call for revenue of any consequence, which the state governments will continue to experience, will be for the mere support of their respective civil list; to which, if we add all contingencies, the total amount in every state ought to fall considerably short of two hundred thousand pounds. in framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. if this principle be a just one our attention would be directed to a provision in favor of the state governments for an annual sum of about two hundred thousand pounds; while the exigencies of the union could be susceptible of no limits, even in imagination. in this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an exclusive source of revenue for any sum beyond the extent of two hundred thousand pounds? to extend its power further, in exclusion of the authority of the union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them. suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the union and its members, in proportion to their comparative necessities; what particular fund could have been selected for the use of the states, that would not either have been too much or too little too little for their present, too much for their future wants? as to the line of separation between external and internal taxes, this would leave to the states, at a rough computation, the command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its expenses; and to the union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. if we desert this boundary and content ourselves with leaving to the states an exclusive power of taxing houses and lands, there would still be a great disproportion between the means and the end; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. if any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular states, and would have left them dependent on the union for a provision for this purpose. the preceding train of observation will justify the position which has been elsewhere laid down, that "a concurrent jurisdiction in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of state authority to that of the union." any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great interests of the union to the power of the individual states. the convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the federal government with an adequate and independent power in the states to provide for their own necessities. there remain a few other lights, in which this important subject of taxation will claim a further consideration. publius. federalist no. 35 the same subject continued (concerning the general power of taxation) for the independent journal. hamilton to the people of the state of new york: before we proceed to examine any other objections to an indefinite power of taxation in the union, i shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several states as among the citizens of the same state. suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. there are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. but all extremes are pernicious in various ways. exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. when the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. i am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. it is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. the merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale. the maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing states. but it is not so generally true as to render it equitable, that those duties should form the only national fund. when they are paid by the merchant they operate as an additional tax upon the importing state, whose citizens pay their proportion of them in the character of consumers. in this view they are productive of inequality among the states; which inequality would be increased with the increased extent of the duties. the confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing states. the states which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those states which are not in the same favorable situation. they would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. to make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. new york is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the union to external taxation may be aware of. new york is an importing state, and is not likely speedily to be, to any great extent, a manufacturing state. she would, of course, suffer in a double light from restraining the jurisdiction of the union to commercial imposts. so far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. i readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, hope, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. the first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. but even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. let us now return to the examination of objections. one which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the house of representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. this argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. but when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. the object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. i reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries. the idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. unless it were expressly provided in the constitution, that each different occupation should send one or more members, the thing would never take place in practice. mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. many of them, indeed, are immediately connected with the operations of commerce. they know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. they are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. these considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. we must therefore consider merchants as the natural representatives of all these classes of the community. with regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community. nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, i take to be perfectly united, from the wealthiest landlord down to the poorest tenant. no tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. but if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? if we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all. it is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. but we have seen that this will never happen under any arrangement that leaves the votes of the people free. where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. but where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? will not the landholder know and feel whatever will promote or insure the interest of landed property? and will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society? if we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? this dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent. there is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. the man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. it might be demonstrated that the most productive system of finance will always be the least burdensome. there can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. and this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. in any other sense the proposition has either no meaning, or an absurd one. and in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found. publius. federalist no. 36 the same subject continued (concerning the general power of taxation) from the new york packet. tuesday january 8, 1788. hamilton to the people of the state of new york: we have seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly represent all those different interests and views. if it should be objected that we have seen other descriptions of men in the local legislatures, i answer that it is admitted there are exceptions to the rule, but not in sufficient number to influence the general complexion or character of the government. there are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. the door ought to be equally open to all; and i trust, for the credit of human nature, that we shall see examples of such vigorous plants flourishing in the soil of federal as well as of state legislation; but occasional instances of this sort will not render the reasoning founded upon the general course of things, less conclusive. the subject might be placed in several other lights that would all lead to the same result; and in particular it might be asked, what greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of them? it is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the representative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice. but i forbear to dwell any longer on a matter which has hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency. there is another objection of a somewhat more precise nature that claims our attention. it has been asserted that a power of internal taxation in the national legislature could never be exercised with advantage, as well from the want of a sufficient knowledge of local circumstances, as from an interference between the revenue laws of the union and of the particular states. the supposition of a want of proper knowledge seems to be entirely destitute of foundation. if any question is depending in a state legislature respecting one of the counties, which demands a knowledge of local details, how is it acquired? no doubt from the information of the members of the county. cannot the like knowledge be obtained in the national legislature from the representatives of each state? and is it not to be presumed that the men who will generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate that information? is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each state; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry? nations in general, even under governments of the more popular kind, usually commit the administration of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature. inquisitive and enlightened statesmen are deemed everywhere best qualified to make a judicious selection of the objects proper for revenue; which is a clear indication, as far as the sense of mankind can have weight in the question, of the species of knowledge of local circumstances requisite to the purposes of taxation. the taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the direct and those of the indirect kind. though the objection be made to both, yet the reasoning upon it seems to be confined to the former branch. and indeed, as to the latter, by which must be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the nature of the difficulties apprehended. the knowledge relating to them must evidently be of a kind that will either be suggested by the nature of the article itself, or can easily be procured from any well-informed man, especially of the mercantile class. the circumstances that may distinguish its situation in one state from its situation in another must be few, simple, and easy to be comprehended. the principal thing to be attended to, would be to avoid those articles which had been previously appropriated to the use of a particular state; and there could be no difficulty in ascertaining the revenue system of each. this could always be known from the respective codes of laws, as well as from the information of the members from the several states. the objection, when applied to real property or to houses and lands, appears to have, at first sight, more foundation, but even in this view it will not bear a close examination. land taxes are co monly laid in one of two modes, either by actual valuations, permanent or periodical, or by occasional assessments, at the discretion, or according to the best judgment, of certain officers whose duty it is to make them. in either case, the execution of the business, which alone requires the knowledge of local details, must be devolved upon discreet persons in the character of commissioners or assessors, elected by the people or appointed by the government for the purpose. all that the law can do must be to name the persons or to prescribe the manner of their election or appointment, to fix their numbers and qualifications and to draw the general outlines of their powers and duties. and what is there in all this that cannot as well be performed by the national legislature as by a state legislature? the attention of either can only reach to general principles; local details, as already observed, must be referred to those who are to execute the plan. but there is a simple point of view in which this matter may be placed that must be altogether satisfactory. the national legislature can make use of the system of each state within that state. the method of laying and collecting this species of taxes in each state can, in all its parts, be adopted and employed by the federal government. let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each state, as described in the second section of the first article. an actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression. the abuse of this power of taxation seems to have been provided against with guarded circumspection. in addition to the precaution just mentioned, there is a provision that "all duties, imposts, and excises shall be uniform throughout the united states." it has been very properly observed by different speakers and writers on the side of the constitution, that if the exercise of the power of internal taxation by the union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. by way of answer to this, it has been triumphantly asked, why not in the first instance omit that ambiguous power, and rely upon the latter resource? two solid answers may be given. the first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual; and it is impossible to prove in theory, or otherwise than by the experiment, that it cannot be advantageously exercised. the contrary, indeed, appears most probable. the second answer is, that the existence of such a power in the constitution will have a strong influence in giving efficacy to requisitions. when the states know that the union can apply itself without their agency, it will be a powerful motive for exertion on their part. as to the interference of the revenue laws of the union, and of its members, we have already seen that there can be no clashing or repugnancy of authority. the laws cannot, therefore, in a legal sense, interfere with each other; and it is far from impossible to avoid an interference even in the policy of their different systems. an effectual expedient for this purpose will be, mutually, to abstain from those objects which either side may have first had recourse to. as neither can control the other, each will have an obvious and sensible interest in this reciprocal forbearance. and where there is an immediate common interest, we may safely count upon its operation. when the particular debts of the states are done away, and their expenses come to be limited within their natural compass, the possibility almost of interference will vanish. a small land tax will answer the purpose of the states, and will be their most simple and most fit resource. many spectres have been raised out of this power of internal taxation, to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain. as to the first point, there are two cases in which there can be no room for double sets of officers: one, where the right of imposing the tax is exclusively vested in the union, which applies to the duties on imports; the other, where the object has not fallen under any state regulation or provision, which may be applicable to a variety of objects. in other cases, the probability is that the united states will either wholly abstain from the objects preoccupied for local purposes, or will make use of the state officers and state regulations for collecting the additional imposition. this will best answer the views of revenue, because it will save expense in the collection, and will best avoid any occasion of disgust to the state governments and to the people. at all events, here is a practicable expedient for avoiding such an inconvenience; and nothing more can be required than to show that evils predicted to not necessarily result from the plan. as to any argument derived from a supposed system of influence, it is a sufficient answer to say that it ought not to be presumed; but the supposition is susceptible of a more precise answer. if such a spirit should infest the councils of the union, the most certain road to the accomplishment of its aim would be to employ the state officers as much as possible, and to attach them to the union by an accumulation of their emoluments. this would serve to turn the tide of state influence into the channels of the national government, instead of making federal influence flow in an opposite and adverse current. but all suppositions of this kind are invidious, and ought to be banished from the consideration of the great question before the people. they can answer no other end than to cast a mist over the truth. as to the suggestion of double taxation, the answer is plain. the wants of the union are to be supplied in one way or another; if to be done by the authority of the federal government, it will not be to be done by that of the state government. the quantity of taxes to be paid by the community must be the same in either case; with this advantage, if the provision is to be made by the union that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under state regulation, and of course will render it less necessary to recur to more inconvenient methods; and with this further advantage, that as far as there may be any real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in the choice and arrangement of the means; and must naturally tend to make it a fixed point of policy in the national administration to go as far as may be practicable in making the luxury of the rich tributary to the public treasury, in order to diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society. happy it is when the interest which the government has in the preservation of its own power, coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression! as to poll taxes, i, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those states [1] which have uniformly been the most tenacious of their rights, i should lament to see them introduced into practice under the national government. but does it follow because there is a power to lay them that they will actually be laid? every state in the union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. are the state governments to be stigmatized as tyrannies, because they possess this power? if they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? as little friendly as i am to the species of imposition, i still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. there are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. and the government, from the possibility of such emergencies, ought ever to have the option of making use of them. the real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. there may exist certain critical and tempestuous conjunctures of the state, in which a poll tax may become an inestimable resource. and as i know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, i acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security. i have now gone through the examination of such of the powers proposed to be vested in the united states, which may be considered as having an immediate relation to the energy of the government; and have endeavored to answer the principal objections which have been made to them. i have passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the constitution, or of too manifest propriety to admit of controversy. the mass of judiciary power, however, might have claimed an investigation under this head, had it not been for the consideration that its organization and its extent may be more advantageously considered in connection. this has determined me to refer it to the branch of our inquiries upon which we shall next enter. publius. fna1-@1 the new england states. federalist no. 37 concerning the difficulties of the convention in devising a proper form of government from the daily advertiser. friday, january 11, 1788. madison to the people of the state of new york: in reviewing the defects of the existing confederation, and showing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration. but as the ultimate object of these papers is to determine clearly and fully the merits of this constitution, and the expediency of adopting it, our plan cannot be complete without taking a more critical and thorough survey of the work of the convention, without examining it on all its sides, comparing it in all its parts, and calculating its probable effects. that this remaining task may be executed under impressions conducive to a just and fair result, some reflections must in this place be indulged, which candor previously suggests. it is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. to those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. in some, it has been too evident from their own publications, that they have scanned the proposed constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question. in placing, however, these different characters on a level, with respect to the weight of their opinions, i wish not to insinuate that there may not be a material difference in the purity of their intentions. it is but just to remark in favor of the latter description, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. the predetermined adversary, on the other hand, can have been governed by no venial motive whatever. the intentions of the first may be upright, as they may on the contrary be culpable. the views of the last cannot be upright, and must be culpable. but the truth is, that these papers are not addressed to persons falling under either of these characters. they solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it. persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others. with equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention. the novelty of the undertaking immediately strikes us. it has been shown in the course of these papers, that the existing confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. it has been shown, that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. the most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them. among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject. energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. an irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the state administrations. on comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. the genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. a frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand. how far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. from the cursory view here taken, it must clearly appear to have been an arduous part. not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the state governments. every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature. the faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. the boundaries between the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. the most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the termination of the former and the commencement of the animal empire. a still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted. when we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science. the experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. the precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in great britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. the jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. all new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. the use of words is to express ideas. perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. but no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. and this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. when the almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated. here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. any one of these must produce a certain degree of obscurity. the convention, in delineating the boundary between the federal and state jurisdictions, must have experienced the full effect of them all. to the difficulties already mentioned may be added the interfering pretensions of the larger and smaller states. we cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. we may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. it is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. there are features in the constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations. nor could it have been the large and small states only, which would marshal themselves in opposition to each other on various points. other combinations, resulting from a difference of local position and policy, must have created additional difficulties. as every state may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the united states are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale. and although this variety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sensible of the contrary influence, which must have been experienced in the task of forming it. would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a constitution planned in his closet or in his imagination? the real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. it is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. it is impossible for the man of pious reflection not to perceive in it a finger of that almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution. we had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the united netherlands for reforming the baneful and notorious vices of their constitution. the history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments, and may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character. if, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. in revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions. the first is, that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. the second conclusion is that all the deputations composing the convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments. federalist no. 38 the same subject continued, and the incoherence of the objections to the new plan exposed from the new york packet. tuesday, january 15, 1788. madison to the people of the state of new york: it is not a little remarkable that in every case reported by ancient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity. minos, we learn, was the primitive founder of the government of crete, as zaleucus was of that of the locrians. theseus first, and after him draco and solon, instituted the government of athens. lycurgus was the lawgiver of sparta. the foundation of the original government of rome was laid by romulus, and the work completed by two of his elective successors, numa and tullius hostilius. on the abolition of royalty the consular administration was substituted by brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by tullius hostilius, and to which his address obtained the assent and ratification of the senate and people. this remark is applicable to confederate governments also. amphictyon, we are told, was the author of that which bore his name. the achaean league received its first birth from achaeus, and its second from aratus. what degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained. in some, however, the proceeding was strictly regular. draco appears to have been intrusted by the people of athens with indefinite powers to reform its government and laws. and solon, according to plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modeling the constitution. the proceedings under lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens. whence could it have proceeded, that a people, jealous as the greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen? whence could it have proceeded, that the athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow-citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected? these questions cannot be fully answered, without supposing that the fears of discord and disunion among a number of counsellors exceeded the apprehension of treachery or incapacity in a single individual. history informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect. solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. and lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. if these lessons teach us, on one hand, to admire the improvement made by america on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them. is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out? this conjecture is rendered probable, not only by many considerations of a general nature, but by the particular case of the articles of confederation. it is observable that among the numerous objections and amendments suggested by the several states, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error which on actual trial has discovered itself. and if we except the observations which new jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. there is abundant reason, nevertheless, to suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexibility, in some states, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of selfpreservation. one state, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. every candid reader will make the proper reflections on these important facts. a patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. the physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. they are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. the prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted? and if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one? such a patient and in such a situation is america at this moment. she has been sensible of her malady. she has obtained a regular and unanimous advice from men of her own deliberate choice. and she is warned by others against following this advice under pain of the most fatal consequences. do the monitors deny the reality of her danger? no. do they deny the necessity of some speedy and powerful remedy? no. are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? let them speak for themselves. this one tells us that the proposed constitution ought to be rejected, because it is not a confederation of the states, but a government over individuals. another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. a third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. a fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the states in their political capacity. a fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. an objector in a large state exclaims loudly against the unreasonable equality of representation in the senate. an objector in a small state is equally loud against the dangerous inequality in the house of representatives. from this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. from another quarter, and sometimes from the same quarter, on another occasion, the cry is that the congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. a patriot in a state that does not import or export, discerns insuperable objections against the power of direct taxation. the patriotic adversary in a state of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. this politician discovers in the constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. with another class of adversaries to the constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. in the eyes of one the junction of the senate with the president in the responsible function of appointing to offices, instead of vesting this executive power in the executive alone, is the vicious part of the organization. to another, the exclusion of the house of representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. with another, the admission of the president into any share of a power which ever must be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. no part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. "we concur fully," reply others, "in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. our principal dislike to the organization arises from the extensive powers already lodged in that department." even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. the demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the president himself. as it can give no umbrage to the writers against the plan of the federal constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. let us further suppose that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, i leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the constitution, now before the public, would not stand as fair a chance for immortality, as lycurgus gave to that of sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a better, but until another should be agreed upon by this new assembly of lawgivers. it is a matter both of wonder and regret, that those who raise so many objections against the new constitution should never call to mind the defects of that which is to be exchanged for it. it is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. no man would refuse to give brass for silver or gold, because the latter had some alloy in it. no man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. but waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing confederation? is an indefinite power to raise money dangerous in the hands of the federal government? the present congress can make requisitions to any amount they please, and the states are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. is an indefinite power to raise troops dangerous? the confederation gives to congress that power also; and they have already begun to make use of it. is it improper and unsafe to intermix the different powers of government in the same body of men? congress, a single body of men, are the sole depositary of all the federal powers. is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? the confederation places them both in the hands of congress. is a bill of rights essential to liberty? the confederation has no bill of rights. is it an objection against the new constitution, that it empowers the senate, with the concurrence of the executive, to make treaties which are to be the laws of the land? the existing congress, without any such control, can make treaties which they themselves have declared, and most of the states have recognized, to be the supreme law of the land. is the importation of slaves permitted by the new constitution for twenty years? by the old it is permitted forever. i shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of congress on the state for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. then, say i, in the first place, that the confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing congress; in either of which events, the contrast just stated will hold good. but this is not all. out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the union. it is now no longer a point of speculation and hope, that the western territory is a mine of vast wealth to the united states; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. a very large proportion of this fund has been already surrendered by individual states; and it may with reason be expected that the remaining states will not persist in withholding similar proofs of their equity and generosity. we may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the united states, will soon become a national stock. congress have assumed the administration of this stock. they have begun to render it productive. congress have undertaken to do more: they have proceeded to form new states, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such states shall be admitted into the confederacy. all this has been done; and done without the least color of constitutional authority. yet no blame has been whispered; no alarm has been sounded. a great and independent fund of revenue is passing into the hands of a single body of men, who can raise troops to an indefinite number, and appropriate money to their support for an indefinite period of time. and yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the union against the future powers and resources of a body constructed like the existing congress, than to save it from the dangers threatened by the present impotency of that assembly? i mean not, by any thing here said, to throw censure on the measures which have been pursued by congress. i am sensible they could not have done otherwise. the public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. but is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? a dissolution or usurpation is the dreadful dilemma to which it is continually exposed. publius. federalist no. 39 the conformity of the plan to republican principles for the independent journal. madison to the people of the state of new york: the last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking. the first question that offers itself is, whether the general form and aspect of the government be strictly republican. it is evident that no other form would be reconcilable with the genius of the people of america; with the fundamental principles of the revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. if the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible. what, then, are the distinctive characters of the republican form? were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different states, no satisfactory one would ever be found. holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. the same title has been bestowed on venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles. poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. the government of england, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. these examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions. if we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. it is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the united states, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. according to the constitution of every state in the union, some or other of the officers of government are appointed indirectly only by the people. according to most of them, the chief magistrate himself is so appointed. and according to one, this mode of appointment is extended to one of the co-ordinate branches of the legislature. according to all the constitutions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. according to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior. on comparing the constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. the house of representatives, like that of one branch at least of all the state legislatures, is elected immediately by the great body of the people. the senate, like the present congress, and the senate of maryland, derives its appointment indirectly from the people. the president is indirectly derived from the choice of the people, according to the example in most of the states. even the judges, with all other officers of the union, will, as in the several states, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard, and to the model of state constitutions the house of representatives is periodically elective, as in all the states; and for the period of two years, as in the state of south carolina. the senate is elective, for the period of six years; which is but one year more than the period of the senate of maryland, and but two more than that of the senates of new york and virginia. the president is to continue in office for the period of four years; as in new york and delaware, the chief magistrate is elected for three years, and in south carolina for two years. in the other states the election is annual. in several of the states, however, no constitutional provision is made for the impeachment of the chief magistrate. and in delaware and virginia he is not impeachable till out of office. the president of the united states is impeachable at any time during his continuance in office. the tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. the tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the state constitutions. could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the state governments; and in its express guaranty of the republican form to each of the latter. "but it was not sufficient," say the adversaries of the proposed constitution, "for the convention to adhere to the republican form. they ought, with equal care, to have preserved the federal form, which regards the union as a confederacy of sovereign states; instead of which, they have framed a national government, which regards the union as a consolidation of the states." and it is asked by what authority this bold and radical innovation was undertaken? the handle which has been made of this objection requires that it should be examined with some precision. without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority. first. in order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced. on examining the first relation, it appears, on one hand, that the constitution is to be founded on the assent and ratification of the people of america, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong. it is to be the assent and ratification of the several states, derived from the supreme authority in each state, the authority of the people themselves. the act, therefore, establishing the constitution, will not be a national, but a federal act. that it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent states, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the union, nor from that of a majority of the states. it must result from the unanimous assent of the several states that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the united states would bind the minority, in the same manner as the majority in each state must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the states as evidence of the will of a majority of the people of the united states. neither of these rules have been adopted. each state, in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. in this relation, then, the new constitution will, if established, be a federal, and not a national constitution. the next relation is, to the sources from which the ordinary powers of government are to be derived. the house of representatives will derive its powers from the people of america; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state. so far the government is national, not federal. the senate, on the other hand, will derive its powers from the states, as political and coequal societies; and these will be represented on the principle of equality in the senate, as they now are in the existing congress. so far the government is federal, not national. the executive power will be derived from a very compound source. the immediate election of the president is to be made by the states in their political characters. the votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. the eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. from this aspect of the government it appears to be of a mixed character, presenting at least as many federal as national features. the difference between a federal and national government, as it relates to the operation of the government, is supposed to consist in this, that in the former the powers operate on the political bodies composing the confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. on trying the constitution by this criterion, it falls under the national, not the federal character; though perhaps not so completely as has been understood. in several cases, and particularly in the trial of controversies to which states may be parties, they must be viewed and proceeded against in their collective and political capacities only. so far the national countenance of the government on this side seems to be disfigured by a few federal features. but this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a national government. but if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. the idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. among a people consolidated into one nation, this supremacy is completely vested in the national legislature. among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. in the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. in the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. in this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects. it is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. but this does not change the principle of the case. the decision is to be impartially made, according to the rules of the constitution; and all the usual and most effectual precautions are taken to secure this impartiality. some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated. if we try the constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. were it wholly federal, on the other hand, the concurrence of each state in the union would be essential to every alteration that would be binding on all. the mode provided by the plan of the convention is not founded on either of these principles. in requiring more than a majority, and principles. in requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national and advances towards the federal character; in rendering the concurrence of less than the whole number of states sufficient, it loses again the federal and partakes of the national character. the proposed constitution, therefore, is, in strictness, neither a national nor a federal constitution, but a composition of both. in its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national. publius. federalist no. 40 the powers of the convention to form a mixed government examined and sustained from the new york packet. friday, january 18, 1788. madison to the people of the state of new york: the second point to be examined is, whether the convention were authorized to frame and propose this mixed constitution. the powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. as all of these, however, had reference, either to the recommendation from the meeting at annapolis, in september, 1786, or to that from congress, in february, 1787, it will be sufficient to recur to these particular acts. the act from annapolis recommends the "appointment of commissioners to take into consideration the situation of the united states; to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the union; and to report such an act for that purpose, to the united states in congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every state, will effectually provide for the same. "the recommendatory act of congress is in the words following:"whereas, there is provision in the articles of confederation and perpetual union, for making alterations therein, by the assent of a congress of the united states, and of the legislatures of the several states; and whereas experience hath evinced, that there are defects in the present confederation; as a mean to remedy which, several of the states, and particularly the state of new york, by express instructions to their delegates in congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these states a firm national government:"resolved, that in the opinion of congress it is expedient, that on the second monday of may next a convention of delegates, who shall have been appointed by the several states, be held at philadelphia, for the sole and express purpose of revising the articles of confederation, and reporting to congress and the several legislatures such alterations and provisions therein, as shall, when agreed to in congress, and confirmed by the states, render the federal constitution adequate to the exigencies of government and the preservation of the union. "from these two acts, it appears, 1st, that the object of the convention was to establish, in these states, a firm national government; 2d, that this government was to be such as would be adequate to the exigencies of government and the preservation of the union; 3d, that these purposes were to be effected by alterations and provisions in the articles of confederation, as it is expressed in the act of congress, or by such further provisions as should appear necessary, as it stands in the recommendatory act from annapolis; 4th, that the alterations and provisions were to be reported to congress, and to the states, in order to be agreed to by the former and confirmed by the latter. from a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. they were to frame a national government, adequate to the exigencies of government, and of the union; and to reduce the articles of confederation into such form as to accomplish these purposes. there are two rules of construction, dictated by plain reason, as well as founded on legal axioms. the one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. the other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means. suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a national and adequate government could not possibly, in the judgment of the convention, be affected by alterations and provisions in the articles of confederation; which part of the definition ought to have been embraced, and which rejected? which was the more important, which the less important part? which the end; which the means? let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. let them declare, whether it was of most importance to the happiness of the people of america, that the articles of confederation should be disregarded, and an adequate government be provided, and the union preserved; or that an adequate government should be omitted, and the articles of confederation preserved. let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed. but is it necessary to suppose that these expressions are absolutely irreconcilable to each other; that no alterations or provisions in the articles of the confederation could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention? no stress, it is presumed, will, in this case, be laid on the title; a change of that could never be deemed an exercise of ungranted power. alterations in the body of the instrument are expressly authorized. new provisions therein are also expressly authorized. here then is a power to change the title; to insert new articles; to alter old ones. must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of alterations and further provisions, and that which amounts to a transmutation of the government. will it be said that the alterations ought not to have touched the substance of the confederation? the states would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some substantial reform had not been in contemplation. will it be said that the fundamental principles of the confederation were not within the purview of the convention, and ought not to have been varied? i ask, what are these principles? do they require that, in the establishment of the constitution, the states should be regarded as distinct and independent sovereigns? they are so regarded by the constitution proposed. do they require that the members of the government should derive their appointment from the legislatures, not from the people of the states? one branch of the new government is to be appointed by these legislatures; and under the confederation, the delegates to congress may all be appointed immediately by the people, and in two states1 are actually so appointed. do they require that the powers of the government should act on the states, and not immediately on individuals? in some instances, as has been shown, the powers of the new government will act on the states in their collective characters. in some instances, also, those of the existing government act immediately on individuals. in cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the indians; of claims under grants of land by different states; and, above all, in the case of trials by courts-marshal in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the confederation operate immediately on the persons and interests of individual citizens. do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the states? the confederation itself authorizes a direct tax, to a certain extent, on the post office. the power of coinage has been so construed by congress as to levy a tribute immediately from that source also. but pretermitting these instances, was it not an acknowledged object of the convention and the universal expectation of the people, that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue? had not congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the confederation? had not every state but one; had not new york herself, so far complied with the plan of congress as to recognize the principle of the innovation? do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the states should be left in possession of their sovereignty and independence? we have seen that in the new government, as in the old, the general powers are limited; and that the states, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. the truth is, that the great principles of the constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of confederation. the misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old. in one particular it is admitted that the convention have departed from the tenor of their commission. instead of reporting a plan requiring the confirmation of the legislatures of all the states, they have reported a plan which is to be confirmed by the people, and may be carried into effect by nine states only. it is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. the forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve states to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a majority of one sixtieth of the people of america to a measure approved and called for by the voice of twelve states, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. as this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, i dismiss it without further observation. the third point to be inquired into is, how far considerations of duty arising out of the case itself could have supplied any defect of regular authority. in the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor, and by the same rules, as if they had been real and final powers for the establishment of a constitution for the united states. we have seen in what manner they have borne the trial even on that supposition. it is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the states, and so understood by the convention; and that the latter have accordingly planned and proposed a constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. this reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention. let us view the ground on which the convention stood. it may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis, which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment. it could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. they had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the united states. they had seen in the origin and progress of the experiment, the alacrity with which the proposition, made by a single state (virginia), towards a partial amendment of the confederation, had been attended to and promoted. they had seen the liberty assumed by a very few deputies from a very few states, convened at annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen states. they had seen, in a variety of instances, assumptions by congress, not only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. they must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,"2 since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some informal and unauthorized propositions, made by some patriotic and respectable citizen or number of citizens. they must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the states were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that conventions were elected in the several states for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. they must have borne in mind, that as the plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities. it might even have occurred to them, that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies. had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve states who usurped the power of sending deputies to the convention, a body utterly unknown to their constitutions; for congress, who recommended the appointment of this body, equally unknown to the confederation; and for the state of new york, in particular, which first urged and then complied with this unauthorized interposition? but that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a constitution for their country: does it follow that the constitution ought, for that reason alone, to be rejected? if, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? the prudent inquiry, in all cases, ought surely to be, not so much from whom the advice comes, as whether the advice be good. the sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of america. how far this character is due to the constitution, is the subject under investigation. publius. connecticut and rhode island. declaration of independence. federalist no. 41 general view of the powers conferred by the constitution for the independent journal. madison to the people of the state of new york: the constitution proposed by the convention may be considered under two general points of view. the first relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the states. the second, to the particular structure of the government, and the distribution of this power among its several branches. under the first view of the subject, two important questions arise: 1. whether any part of the powers transferred to the general government be unnecessary or improper? 2. whether the entire mass of them be dangerous to the portion of jurisdiction left in the several states? is the aggregate power of the general government greater than ought to have been vested in it? this is the first question. it cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. they have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. this method of handling the subject cannot impose on the good sense of the people of america. it may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the greater, not the perfect, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. they will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment. that we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: 1. security against foreign danger; 2. regulation of the intercourse with foreign nations; 3. maintenance of harmony and proper intercourse among the states; 4. certain miscellaneous objects of general utility; 5. restraint of the states from certain injurious acts; 6. provisions for giving due efficacy to all these powers. the powers falling within the first class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money. security against foreign danger is one of the primitive objects of civil society. it is an avowed and essential object of the american union. the powers requisite for attaining it must be effectually confided to the federal councils. is the power of declaring war necessary? no man will answer this question in the negative. it would be superfluous, therefore, to enter into a proof of the affirmative. the existing confederation establishes this power in the most ample form. is the power of raising armies and equipping fleets necessary? this is involved in the foregoing power. it is involved in the power of self-defense. but was it necessary to give an indefinite power of raising troops, as well as providing fleets; and of maintaining both in peace, as well as in war? the answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. the answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. with what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? if a federal constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety. how could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? the means of security can only be regulated by the means and the danger of attack. they will, in fact, be ever determined by these rules, and by no others. it is in vain to oppose constitutional barriers to the impulse of self-preservation. it is worse than in vain; because it plants in the constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions. if one nation maintains constantly a disciplined army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions. the fifteenth century was the unhappy epoch of military establishments in the time of peace. they were introduced by charles vii. of france. all europe has followed, or been forced into, the example. had the example not been followed by other nations, all europe must long ago have worn the chains of a universal monarch. were every nation except france now to disband its peace establishments, the same event might follow. the veteran legions of rome were an overmatch for the undisciplined valor of all other nations and rendered her the mistress of the world. not the less true is it, that the liberties of rome proved the final victim to her military triumphs; and that the liberties of europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. a standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. on the smallest scale it has its inconveniences. on an extensive scale its consequences may be fatal. on any scale it is an object of laudable circumspection and precaution. a wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties. the clearest marks of this prudence are stamped on the proposed constitution. the union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. america united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than america disunited, with a hundred thousand veterans ready for combat. it was remarked, on a former occasion, that the want of this pretext had saved the liberties of one nation in europe. being rendered by her insular situation and her maritime resources impregnable to the armies of her neighbors, the rulers of great britain have never been able, by real or artificial dangers, to cheat the public into an extensive peace establishment. the distance of the united states from the powerful nations of the world gives them the same happy security. a dangerous establishment can never be necessary or plausible, so long as they continue a united people. but let it never, for a moment, be forgotten that they are indebted for this advantage to the union alone. the moment of its dissolution will be the date of a new order of things. the fears of the weaker, or the ambition of the stronger states, or confederacies, will set the same example in the new, as charles vii. did in the old world. the example will be followed here from the same motives which produced universal imitation there. instead of deriving from our situation the precious advantage which great britain has derived from hers, the face of america will be but a copy of that of the continent of europe. it will present liberty everywhere crushed between standing armies and perpetual taxes. the fortunes of disunited america will be even more disastrous than those of europe. the sources of evil in the latter are confined to her own limits. no superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge. in america the miseries springing from her internal jealousies, contentions, and wars, would form a part only of her lot. a plentiful addition of evils would have their source in that relation in which europe stands to this quarter of the earth, and which no other quarter of the earth bears to europe. this picture of the consequences of disunion cannot be too highly colored, or too often exhibited. every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the union of america, and be able to set a due value on the means of preserving it. next to the effectual establishment of the union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. this precaution the constitution has prudently added. i will not repeat here the observations which i flatter myself have placed this subject in a just and satisfactory light. but it may not be improper to take notice of an argument against this part of the constitution, which has been drawn from the policy and practice of great britain. it is said that the continuance of an army in that kingdom requires an annual vote of the legislature; whereas the american constitution has lengthened this critical period to two years. this is the form in which the comparison is usually stated to the public: but is it a just form? is it a fair comparison? does the british constitution restrain the parliamentary discretion to one year? does the american impose on the congress appropriations for two years? on the contrary, it cannot be unknown to the authors of the fallacy themselves, that the british constitution fixes no limit whatever to the discretion of the legislature, and that the american ties down the legislature to two years, as the longest admissible term. had the argument from the british example been truly stated, it would have stood thus: the term for which supplies may be appropriated to the army establishment, though unlimited by the british constitution, has nevertheless, in practice, been limited by parliamentary discretion to a single year. now, if in great britain, where the house of commons is elected for seven years; where so great a proportion of the members are elected by so small a proportion of the people; where the electors are so corrupted by the representatives, and the representatives so corrupted by the crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year, ought not suspicion herself to blush, in pretending that the representatives of the united states, elected freely by the whole body of the people, every second year, cannot be safely intrusted with the discretion over such appropriations, expressly limited to the short period of two years? a bad cause seldom fails to betray itself. of this truth, the management of the opposition to the federal government is an unvaried exemplification. but among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. the attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a constitution fully adequate to the national defense and the preservation of the union, can save america from as many standing armies as it may be split into states or confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter. the palpable necessity of the power to provide and maintain a navy has protected that part of the constitution against a spirit of censure, which has spared few other parts. it must, indeed, be numbered among the greatest blessings of america, that as her union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. in this respect our situation bears another likeness to the insular advantage of great britain. the batteries most capable of repelling foreign enterprises on our safety, are happily such as can never be turned by a perfidious government against our liberties. the inhabitants of the atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has remained safe against the predatory spirit of licentious adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing government for the protection of those from whom it claims allegiance, but to causes that are fugitive and fallacious. if we except perhaps virginia and maryland, which are peculiarly vulnerable on their eastern frontiers, no part of the union ought to feel more anxiety on this subject than new york. her seacoast is extensive. a very important district of the state is an island. the state itself is penetrated by a large navigable river for more than fifty leagues. the great emporium of its commerce, the great reservoir of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians. should a war be the result of the precarious situation of european affairs, and all the unruly passions attending it be let loose on the ocean, our escape from insults and depredations, not only on that element, but every part of the other bordering on it, will be truly miraculous. in the present condition of america, the states more immediately exposed to these calamities have nothing to hope from the phantom of a general government which now exists; and if their single resources were equal to the task of fortifying themselves against the danger, the object to be protected would be almost consumed by the means of protecting them. the power of regulating and calling forth the militia has been already sufficiently vindicated and explained. the power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense, is properly thrown into the same class with it. this power, also, has been examined already with much attention, and has, i trust, been clearly shown to be necessary, both in the extent and form given to it by the constitution. i will address one additional reflection only to those who contend that the power ought to have been restrained to external taxation by which they mean, taxes on articles imported from other countries. it cannot be doubted that this will always be a valuable source of revenue; that for a considerable time it must be a principal source; that at this moment it is an essential one. but we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports; and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. as long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply. as soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. in a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. a system of government, meant for duration, ought to contemplate these revolutions, and be able to accommodate itself to them. some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the constitution, on the language in which it is defined. it has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the united states," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. no stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. had no other enumeration or definition of the powers of the congress been found in the constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. a power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare. "but what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? if the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? for what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. but the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the constitution, we must take the liberty of supposing, had not its origin with the latter. the objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of confederation. the objects of the union among the states, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare. " the terms of article eighth are still more identical: "all charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the united states in congress, shall be defrayed out of a common treasury," etc. a similar language again occurs in article ninth. construe either of these articles by the rules which would justify the construction put on the new constitution, and they vest in the existing congress a power to legislate in all cases whatsoever. but what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? i appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of congress as they now make use of against the convention. how difficult it is for error to escape its own condemnation! publius. federalist no. 42 the powers conferred by the constitution further considered from the new york packet. tuesday, january 22, 1788. madison to the people of the state of new york: the second class of powers, lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations. this class of powers forms an obvious and essential branch of the federal administration. if we are to be one nation in any respect, it clearly ought to be in respect to other nations. the powers to make treaties and to send and receive ambassadors, speak their own propriety. both of them are comprised in the articles of confederation, with this difference only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the states; and that a power of appointing and receiving "other public ministers and consuls," is expressly and very properly added to the former provision concerning ambassadors. the term ambassador, if taken strictly, as seems to be required by the second of the articles of confederation, comprehends the highest grade only of public ministers, and excludes the grades which the united states will be most likely to prefer, where foreign embassies may be necessary. and under no latitude of construction will the term comprehend consuls. yet it has been found expedient, and has been the practice of congress, to employ the inferior grades of public ministers, and to send and receive consuls. it is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of american consuls into foreign countries may perhaps be covered under the authority, given by the ninth article of the confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the united states. but the admission of consuls into the united states, where no previous treaty has stipulated it, seems to have been nowhere provided for. a supply of the omission is one of the lesser instances in which the convention have improved on the model before them. but the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. a list of the cases in which congress have been betrayed, or forced by the defects of the confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old. the power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government, and is a still greater improvement on the articles of confederation. these articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the confederacy with foreign nations. the provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. the definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. a definition of felonies on the high seas is evidently requisite. felony is a term of loose signification, even in the common law of england; and of various import in the statute law of that kingdom. but neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. the meaning of the term, as defined in the codes of the several states, would be as impracticable as the former would be a dishonorable and illegitimate guide. it is not precisely the same in any two of the states; and varies in each with every revision of its criminal laws. for the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper. the regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration. it were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. but it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. it ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these states, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few states which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the union. happy would it be for the unfortunate africans, if an equal prospect lay before them of being redeemed from the oppressions of their european brethren! attempts have been made to pervert this clause into an objection against the constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from europe to america. i mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government. the powers included in the third class are those which provide for the harmony and proper intercourse among the states. under this head might be included the particular restraints imposed on the authority of the states, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. i shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several states and the indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and secureties of the united states; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each state shall be proved, and the effect they shall have in other states; and to establish post offices and post roads. the defect of power in the existing confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. to the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. a very material object of this power was the relief of the states which import and export through other states, from the improper contributions levied on them by the latter. were these at liberty to regulate the trade between state and state, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. we may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. to those who do not view the question through the medium of passion or of interest, the desire of the commercial states to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. but the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. the necessity of a superintending authority over the reciprocal trade of confederated states, has been illustrated by other examples as well as our own. in switzerland, where the union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. in germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. among the restraints imposed by the union of the netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission. the regulation of commerce with the indian tribes is very properly unfettered from two limitations in the articles of confederation, which render the provision obscure and contradictory. the power is there restrained to indians, not members of any of the states, and is not to violate or infringe the legislative right of any state within its own limits. what description of indians are to be deemed members of a state, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. and how the trade with indians, though not members of a state, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. this is not the only case in which the articles of confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the union, with complete sovereignty in the states; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. all that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the constitution has supplied a material omission in the articles of confederation. the authority of the existing congress is restrained to the regulation of coin struck by their own authority, or that of the respective states. it must be seen at once that the proposed uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different states. the punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. the regulation of weights and measures is transferred from the articles of confederation, and is founded on like considerations with the preceding power of regulating coin. the dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. in the fourth article of the confederation, it is declared "that the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall, in every other, enjoy all the privileges of trade and commerce," etc. there is a confusion of language here, which is remarkable. why the terms free inhabitants are used in one part of the article, free citizens in another, and people in another; or what was meant by superadding to "all privileges and immunities of free citizens," "all the privileges of trade and commerce," cannot easily be determined. it seems to be a construction scarcely avoidable, however, that those who come under the denomination of free inhabitants of a state, although not citizens of such state, are entitled, in every other state, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own state: so that it may be in the power of a particular state, or rather every state is laid under a necessity, not only to confer the rights of citizenship in other states upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. but were an exposition of the term "inhabitants" to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. the very improper power would still be retained by each state, of naturalizing aliens in every other state. in one state, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. an alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one state be preposterously rendered paramount to the law of another, within the jurisdiction of the other. we owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. by the laws of several states, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. what would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another state, and then asserted their rights as such, both to residence and citizenship, within the state proscribing them? whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. the new constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the united states. the power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different states, that the expediency of it seems not likely to be drawn into question. the power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each state shall be proved, and the effect they shall have in other states, is an evident and valuable improvement on the clause relating to this subject in the articles of confederation. the meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. the power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous states, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction. the power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency. nothing which tends to facilitate the intercourse between the states can be deemed unworthy of the public care. publius. 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 less-informed part of the community. they have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. they very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. the prohibition with respect to titles of nobility is copied from the articles of confederation and needs no comment. 2. "no state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any state on imports or exports, shall be for the use of the treasury of the united states; and all such laws shall be subject to the revision and control of the congress. no state shall, without the consent of congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay. "the restraint on the power of the states over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. it is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the states a reasonable discretion in providing for the conveniency of their imports and exports, and to the united states a reasonable check against the abuse of this discretion. the remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. the sixth and last class consists of the several powers and provisions by which efficacy is given to all the rest. 1. of these the first is, the "power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or officer thereof. "few parts of the constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. without the substance of this power, the whole constitution would be a dead letter. those who object to the article, therefore, as a part of the constitution, can only mean that the form of the provision is improper. but have they considered whether a better form could have been substituted? there are four other possible methods which the constitution might have taken on this subject. they might have copied the second article of the existing confederation, which would have prohibited the exercise of any power not expressly delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms "necessary and proper"; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference. had the convention taken the first method of adopting the second article of confederation, it is evident that the new congress would be continually exposed, as their predecessors have been, to the alternative of construing the term "expressly" with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. it would be easy to show, if it were necessary, that no important power, delegated by the articles of confederation, has been or can be executed by congress, without recurring more or less to the doctrine of construction or implication. as the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the constitution by exercising powers indispensably necessary and proper, but, at the same time, not expressly granted. had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same. had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. if, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, not necessary or proper, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. had the constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. no axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the union. if it be asked what is to be the consequence, in case the congress shall misconstrue this part of the constitution, and exercise powers not warranted by its true meaning, i answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the state legislatures should violate the irrespective constitutional authorities. in the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. the truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the state legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. there being no such intermediate body between the state legislatures and the people interested in watching the conduct of the former, violations of the state constitutions are more likely to remain unnoticed and unredressed. 2. "this constitution and the laws of the united states which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the united states, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. "the indiscreet zeal of the adversaries to the constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. to be fully sensible of this, we need only suppose for a moment that the supremacy of the state constitutions had been left complete by a saving clause in their favor. in the first place, as these constitutions invest the state legislatures with absolute sovereignty, in all cases not excepted by the existing articles of confederation, all the authorities contained in the proposed constitution, so far as they exceed those enumerated in the confederation, would have been annulled, and the new congress would have been reduced to the same impotent condition with their predecessors. in the next place, as the constitutions of some of the states do not even expressly and fully recognize the existing powers of the confederacy, an express saving of the supremacy of the former would, in such states, have brought into question every power contained in the proposed constitution. in the third place, as the constitutions of the states differ much from each other, it might happen that a treaty or national law, of great and equal importance to the states, would interfere with some and not with other constitutions, and would consequently be valid in some of the states, at the same time that it would have no effect in others. in fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members. 3. "the senators and representatives, and the members of the several state legislatures, and all executive and judicial officers, both of the united states and the several states, shall be bound by oath or affirmation to support this constitution. "it has been asked why it was thought necessary, that the state magistracy should be bound to support the federal constitution, and unnecessary that a like oath should be imposed on the officers of the united states, in favor of the state constitutions. several reasons might be assigned for the distinction. i content myself with one, which is obvious and conclusive. the members of the federal government will have no agency in carrying the state constitutions into effect. the members and officers of the state governments, on the contrary, will have an essential agency in giving effect to the federal constitution. the election of the president and senate will depend, in all cases, on the legislatures of the several states. and the election of the house of representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the states. 4. among the provisions for giving efficacy to the federal powers might be added those which belong to the executive and judiciary departments: but as these are reserved for particular examination in another place, i pass them over in this. we have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the union. the question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the union shall be established; or, in other words, whether the union itself shall be preserved. publius. federalist no. 45 the alleged danger from the powers of the union to the state governments considered for the independent fournal. 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 essential 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 uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the states should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. extravagant as the supposition is, let it however be made. let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the state governments, with the people on their side, would be able to repel the danger. the highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. this proportion would not yield, in the united states, an army of more than twenty-five or thirty thousand men. to these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. it may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. those who are best acquainted with the last successful resistance of this country against the british arms, will be most inclined to deny the possibility of it. besides the advantage of being armed, which the americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. notwithstanding the military establishments in the several kingdoms of europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. and it is not certain, that with this aid alone they would not be able to shake off their yokes. but were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in europe would be speedily overturned in spite of the legions which surround it. let us not insult the free and gallant citizens of america with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. the argument under the present head may be put into a very concise form, which appears altogether conclusive. either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. on the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. on the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the state governments, who will be supported by the people. on summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual states, as they are indispensably necessary to accomplish the purposes of the union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the state governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them. publius. federalist no. 47 the particular structure of the new government and the distribution of power among its different parts 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 council 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 inferior 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. 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 gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. it can be little doubted that if the state of rhode island was separated from the confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. in the extended republic of the united states, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. it is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. and happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle. publius. federalist no. 52 the house of representatives from the new york packet. friday, february 8, 1788. 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 observation. it is a fundamental principle of the proposed constitution, that as the aggregate number of representatives allotted to the several states is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each state is to be exercised by such part of the inhabitants as the state itself may designate. the qualifications on which the right of suffrage depend are not, perhaps, the same in any two states. in some of the states the difference is very material. in every state, a certain proportion of inhabitants are deprived of this right by the constitution of the state, who will be included in the census by which the federal constitution apportions the representatives. in this point of view the southern states might retort the complaint, by insisting that the principle laid down by the convention required that no regard should be had to the policy of particular states towards their own inhabitants; and consequently, that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other states, are not admitted to all the rights of citizens. a rigorous adherence, however, to this principle, is waived by those who would be gainers by it. all that they ask is that equal moderation be shown on the other side. let the case of the slaves be considered, as it is in truth, a peculiar one. let the compromising expedient of the constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the slave as divested of two fifths of the man. "after all, may not another ground be taken on which this article of the constitution will admit of a still more ready defense? we have hitherto proceeded on the idea that representation related to persons only, and not at all to property. but is it a just idea? government is instituted no less for protection of the property, than of the persons, of individuals. the one as well as the other, therefore, may be considered as represented by those who are charged with the government. upon this principle it is, that in several of the states, and particularly in the state of new york, one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government. in the federal constitution, this policy does not prevail. the rights of property are committed into the same hands with the personal rights. some attention ought, therefore, to be paid to property in the choice of those hands. "for another reason, the votes allowed in the federal legislature to the people of each state, ought to bear some proportion to the comparative wealth of the states. states have not, like individuals, an influence over each other, arising from superior advantages of fortune. if the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation. a state possesses no such influence over other states. it is not probable that the richest state in the confederacy will ever influence the choice of a single representative in any other state. nor will the representatives of the larger and richer states possess any other advantage in the federal legislature, over the representatives of other states, than what may result from their superior number alone. as far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation. the new constitution is, in this respect, materially different from the existing confederation, as well as from that of the united netherlands, and other similar confederacies. in each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union. hence the states, though possessing an equal vote in the public councils, have an unequal influence, corresponding with the unequal importance of these subsequent and voluntary resolutions. under the proposed constitution, the federal acts will take effect without the necessary intervention of the individual states. they will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or smaller state, or a state more or less wealthy or powerful, will have an equal weight and efficacy: in the same manner as the votes individually given in a state legislature, by the representatives of unequal counties or other districts, have each a precise equality of value and effect; or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes. "such is the reasoning which an advocate for the southern interests might employ on this subject; and although it may appear to be a little strained in some points, yet, on the whole, i must confess that it fully reconciles me to the scale of representation which the convention have established. in one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. as the accuracy of the census to be obtained by the congress will necessarily depend, in a considerable degree on the disposition, if not on the co-operation, of the states, it is of great importance that the states should feel as little bias as possible, to swell or to reduce the amount of their numbers. were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. were the rule to decide their share of taxation alone, a contrary temptation would prevail. by extending the rule to both objects, the states will have opposite interests, which will control and balance each other, and produce the requisite impartiality. publius. federalist no. 55 the total number of the house of representatives 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. " 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. 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 multiply 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 still 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 overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people? publius. 1 particularly in the southern states and in this state. federalist no. 61 the same subject continued (concerning the power of congress to regulate the election of members) from the new york packet. tuesday, february 26, 1788. hamilton to the people of the state of new york: the more candid opposers of the provision respecting elections, contained in the plan of the convention, when pressed in argument, will sometimes concede the propriety of that provision; with this qualification, however, that it ought to have been accompanied with a declaration, that all elections should be had in the counties where the electors resided. this, say they, was a necessary precaution against an abuse of the power. a declaration of this nature would certainly have been harmless; so far as it would have had the effect of quieting apprehensions, it might not have been undesirable. but it would, in fact, have afforded little or no additional security against the danger apprehended; and the want of it will never be considered, by an impartial and judicious examiner, as a serious, still less as an insuperable, objection to the plan. the different views taken of the subject in the two preceding papers must be sufficient to satisfy all dispassionate and discerning men, that if the public liberty should ever be the victim of the ambition of the national rulers, the power under examination, at least, will be guiltless of the sacrifice. if those who are inclined to consult their jealousy only, would exercise it in a careful inspection of the several state constitutions, they would find little less room for disquietude and alarm, from the latitude which most of them allow in respect to elections, than from the latitude which is proposed to be allowed to the national government in the same respect. a review of their situation, in this particular, would tend greatly to remove any ill impressions which may remain in regard to this matter. but as that view would lead into long and tedious details, i shall content myself with the single example of the state in which i write. the constitution of new york makes no other provision for locality of elections, than that the members of the assembly shall be elected in the counties; those of the senate, in the great districts into which the state is or may be divided: these at present are four in number, and comprehend each from two to six counties. it may readily be perceived that it would not be more difficult to the legislature of new york to defeat the suffrages of the citizens of new york, by confining elections to particular places, than for the legislature of the united states to defeat the suffrages of the citizens of the union, by the like expedient. suppose, for instance, the city of albany was to be appointed the sole place of election for the county and district of which it is a part, would not the inhabitants of that city speedily become the only electors of the members both of the senate and assembly for that county and district? can we imagine that the electors who reside in the remote subdivisions of the counties of albany, saratoga, cambridge, etc., or in any part of the county of montgomery, would take the trouble to come to the city of albany, to give their votes for members of the assembly or senate, sooner than they would repair to the city of new york, to participate in the choice of the members of the federal house of representatives? the alarming indifference discoverable in the exercise of so invaluable a privilege under the existing laws, which afford every facility to it, furnishes a ready answer to this question. and, abstracted from any experience on the subject, we can be at no loss to determine, that when the place of election is at an inconvenient distance from the elector, the effect upon his conduct will be the same whether that distance be twenty miles or twenty thousand miles. hence it must appear, that objections to the particular modification of the federal power of regulating elections will, in substance, apply with equal force to the modification of the like power in the constitution of this state; and for this reason it will be impossible to acquit the one, and to condemn the other. a similar comparison would lead to the same conclusion in respect to the constitutions of most of the other states. if it should be said that defects in the state constitutions furnish no apology for those which are to be found in the plan proposed, i answer, that as the former have never been thought chargeable with inattention to the security of liberty, where the imputations thrown on the latter can be shown to be applicable to them also, the presumption is that they are rather the cavilling refinements of a predetermined opposition, than the well-founded inferences of a candid research after truth. to those who are disposed to consider, as innocent omissions in the state constitutions, what they regard as unpardonable blemishes in the plan of the convention, nothing can be said; or at most, they can only be asked to assign some substantial reason why the representatives of the people in a single state should be more impregnable to the lust of power, or other sinister motives, than the representatives of the people of the united states? if they cannot do this, they ought at least to prove to us that it is easier to subvert the liberties of three millions of people, with the advantage of local governments to head their opposition, than of two hundred thousand people who are destitute of that advantage. and in relation to the point immediately under consideration, they ought to convince us that it is less probable that a predominant faction in a single state should, in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen states, spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests. hitherto my observations have only aimed at a vindication of the provision in question, on the ground of theoretic propriety, on that of the danger of placing the power elsewhere, and on that of the safety of placing it in the manner proposed. but there remains to be mentioned a positive advantage which will result from this disposition, and which could not as well have been obtained from any other: i allude to the circumstance of uniformity in the time of elections for the federal house of representatives. it is more than possible that this uniformity may be found by experience to be of great importance to the public welfare, both as a security against the perpetuation of the same spirit in the body, and as a cure for the diseases of faction. if each state may choose its own time of election, it is possible there may be at least as many different periods as there are months in the year. the times of election in the several states, as they are now established for local purposes, vary between extremes as wide as march and november. the consequence of this diversity would be that there could never happen a total dissolution or renovation of the body at one time. if an improper spirit of any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members, as they come forward in succession. the mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions. there is a contagion in example which few men have sufficient force of mind to resist. i am inclined to think that treble the duration in office, with the condition of a total dissolution of the body at the same time, might be less formidable to liberty than one third of that duration subject to gradual and successive alterations. uniformity in the time of elections seems not less requisite for executing the idea of a regular rotation in the senate, and for conveniently assembling the legislature at a stated period in each year. it may be asked, why, then, could not a time have been fixed in the constitution? as the most zealous adversaries of the plan of the convention in this state are, in general, not less zealous admirers of the constitution of the state, the question may be retorted, and it may be asked, why was not a time for the like purpose fixed in the constitution of this state? no better answer can be given than that it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time. the same answer may be given to the question put on the other side. and it may be added that the supposed danger of a gradual change being merely speculative, it would have been hardly advisable upon that speculation to establish, as a fundamental point, what would deprive several states of the convenience of having the elections for their own governments and for the national government at the same epochs. publius. federalist no. 62 the senate for the independent journal. 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 stability 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. 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 perpetual 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 community, 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. federalist no. 67 the executive department from the new york packet. tuesday, march 11, 1788. hamilton to the people of the state of new york: the constitution of the executive department of the proposed government, claims next our attention. there is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this; and there is, perhaps, none which has been inveighed against with less candor or criticised with less judgment. here the writers against the constitution seem to have taken pains to signalize their talent of misrepresentation. calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended president of the united states; not merely as the embryo, but as the full-grown progeny, of that detested parent. to establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction. the authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of new york, have been magnified into more than royal prerogatives. he has been decorated with attributes superior in dignity and splendor to those of a king of great britain. he has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. he has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. the images of asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. we have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio. attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form: in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated. in the execution of this task, there is no man who would not find it an arduous effort either to behold with moderation, or to treat with seriousness, the devices, not less weak than wicked, which have been contrived to pervert the public opinion in relation to the subject. they so far exceed the usual though unjustifiable licenses of party artifice, that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. it is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a similitude between a king of great britain and a magistrate of the character marked out for that of the president of the united states. it is still more impossible to withhold that imputation from the rash and barefaced expedients which have been employed to give success to the attempted imposition. in one instance, which i cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the president of the united states a power which by the instrument reported is expressly allotted to the executives of the individual states. i mean the power of filling casual vacancies in the senate. this bold experiment upon the discernment of his countrymen has been hazarded by a writer who (whatever may be his real merit) has had no inconsiderable share in the applauses of his 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 quarter, 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 utmost 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 owes his prerogative as commander-in-chief to an annual mutiny bill. the truth is, on the contrary, that his prerogative, in this respect, is immemorial, 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. 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 sense, we shall discover much greater cause to reject than to approve the idea of plurality in the executive, under any modification whatever. wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. if it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. from either, and especially from all these causes, the most bitter dissensions are apt to spring. whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. if they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. and what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy. men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. but if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. they seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character. upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the executive. it is here too that they may be most pernicious. in the legislature, promptitude of decision is oftener an evil than a benefit. the differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. when a resolution too is once taken, the opposition must be at an end. that resolution is a law, and resistance to it punishable. but no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. here, they are pure and unmixed. there is no point at which they cease to operate. they serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. they constantly counteract those qualities in the executive which are the most necessary ingredients in its composition, vigor and expedition, and this without anycounterbalancing good. in the conduct of war, in which the energy of the executive is the bulwark of the national security, every thing would be to be apprehended from its plurality. it must be confessed that these observations apply with principal weight to the first case supposed that is, to a plurality of magistrates of equal dignity and authority a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible executive. an artful cabal in that council would be able to distract and to enervate the whole system of administration. if no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness. but one of the weightiest objections to a plurality in the executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. responsibility is of two kinds to censure and to punishment. the first is the more important of the two, especially in an elective office. man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. but the multiplication of the executive adds to the difficulty of detection in either case. it often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. it is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. the circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable. "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. 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. 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 entire 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. federalist no. 78 the judiciary department from mclean's edition, new york. hamilton to the people of the state of new york: we proceed now to an examination of the judiciary department of the proposed government. in unfolding the defects of the existing confederation, the utility and necessity of a federal judicature have been clearly pointed out. it is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. to these points, therefore, our observations shall be confined. the manner of constituting it seems to embrace these several objects: 1st. the mode of appointing the judges. 2d. the tenure by which they are to hold their places. 3d. the partition of the judiciary authority between different courts, and their relations to each other. first. as to the mode of appointing the judges; this is the same with that of appointing the officers of the union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition. second. as to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility. according to the plan of the convention, all judges who may be appointed by the united states are to hold their offices during good behavior; which is conformable to the most approved of the state constitutions and among the rest, to that of this state. its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. the standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. in a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. and it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. the executive not only dispenses the honors, but holds the sword of the community. the legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. the judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. it may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. this simple view of the matter suggests several important consequences. it proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. it equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; i mean so long as the judiciary remains truly distinct from both the legislature and the executive. for i agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 and it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. the complete independence of the courts of justice is peculiarly essential in a limited constitution. by a limited constitution, i understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. without this, all the reservations of particular rights or privileges would amount to nothing. some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. it is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. as this doctrine is of great importance in all the american constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. there is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. no legislative act, therefore, contrary to the constitution, can be valid. to deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. if it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. it is not otherwise to be supposed, that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. it is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. the interpretation of the laws is the proper and peculiar province of the courts. a constitution is, in fact, and must be regarded by the judges, as a fundamental law. it therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. if there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. it only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the constitution, the judges ought to be governed by the latter rather than the former. they ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. this exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. it not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. in such a case, it is the province of the courts to liquidate and fix their meaning and operation. so far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. the rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. but this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. it is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. they thought it reasonable, that between the interfering acts of an equal authority, that which was the last indication of its will should have the preference. but in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. they teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. it can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. this might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. the courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body. the observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. if, then, the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. this independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. though i trust the friends of the proposed constitution will never concur with its enemies,3 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. but it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community. but it is not with a view to infractions of the constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. these sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. it not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. this is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. the benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. and every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. that inflexible and uniform adherence to the rights of the constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. if the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws. there is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. it has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. and making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. these considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. in the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject. upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. the experience of great britain affords an illustrious comment on the excellence of the institution. publius. 1 the celebrated montesquieu, speaking of them, says: "of the three powers above mentioned, the judiciary is next to nothing." "spirit of laws." vol. i., page 186. 2 idem, page 181. 3 vide "protest of the minority of the convention of pennsylvania," martin's speech, etc. federalist no. 79 the judiciary continued from mclean's edition, new york. hamilton to the people of the state of new york: next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. the remark made in relation to the president is equally applicable here. in the general course of human nature, a power over a man's subsistence amounts to a power over his will. and we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. the enlightened friends to good government in every state, have seen cause to lament the want of precise and explicit precautions in the state constitutions on this head. some of these indeed have declared that permanent1 salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. something still more positive and unequivocal has been evinced to be requisite. the plan of the convention accordingly has provided that the judges of the united states "shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." this, all circumstances considered, is the most eligible provision that could have been devised. it will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the constitution inadmissible. what might be extravagant to-day, might in half a century become penurious and inadequate. it was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. a man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. the clause which has been quoted combines both advantages. the salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. it will be observed that a difference has been made by the convention between the compensation of the president and of the judges, that of the former can neither be increased nor diminished; that of the latter can only not be diminished. this probably arose from the difference in the duration of the respective offices. as the president is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. but with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service. this provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the states in regard to their own judges. the precautions for their responsibility are comprised in the article respecting impeachments. they are liable to be impeached for malconduct by the house of representatives, and tried by the senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. this is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges. the want of a provision for removing the judges on account of inability has been a subject of complaint. but all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. the mensuration of the faculties of the mind has, i believe, no place in the catalogue of known arts. an attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. the result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification. the constitution of new york, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. no man can be a judge beyond sixty. i believe there are few at present who do not disapprove of this provision. there is no station, in relation to which it is less proper than to that of a judge. the deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. in a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench. publius. 1 vide "constitution of massachusetts," chapter 2, section i, article 13. federalist no. 80 the powers of the judiciary from mclean's edition, new york. hamilton to the people of the state of new york: to judge with accuracy of the proper extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects. it seems scarcely to admit of controversy, that the judicary authority of the union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the united states, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of union; 3d, to all those in which the united states are a party; 4th, to all those which involve the peace of the confederacy, whether they relate to the intercourse between the united states and foreign nations, or to that between the states themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the state tribunals cannot be supposed to be impartial and unbiased. the first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. what, for instance, would avail restrictions on the authority of the state legislatures, without some constitutional mode of enforcing the observance of them? the states, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the union, and others with the principles of good government. the imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. no man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. this power must either be a direct negative on the state laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of union. there is no third course that i can imagine. the latter appears to have been thought by the convention preferable to the former, and, i presume, will be most agreeable to the states. as to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. if there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. the mere necessity of uniformity in the interpretation of the national laws, decides the question. thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed. still less need be said in regard to the third point. controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. any other plan would be contrary to reason, to precedent, and to decorum. the fourth point rests on this plain proposition, that the peace of the whole ought not to be left at the disposal of a part. the union will undoubtedly be answerable to foreign powers for the conduct of its members. and the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. as the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. this is not less essential to the preservation of the public faith, than to the security of the public tranquillity. a distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. the former kind may be supposed proper for the federal jurisdiction, the latter for that of the states. but it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. and a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. so great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals. the power of determining causes between two states, between one state and the citizens of another, and between the citizens of different states, is perhaps not less essential to the peace of the union than that which has been just examined. history gives us a horrid picture of the dissensions and private wars which distracted and desolated germany prior to the institution of the imperial chamber by maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. this was a court invested with authority to decide finally all differences among the members of the germanic body. a method of terminating territorial disputes between the states, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. but there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the union. to some of these we have been witnesses in the course of our past experience. it will readily be conjectured that i allude to the fraudulent laws which have been passed in too many of the states. and though the proposed constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. whatever practices may have a tendency to disturb the harmony between the states, are proper objects of federal superintendence and control. it may be esteemed the basis of the union, that "the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states." and if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the union will be entitled, the national judiciary ought to preside in all cases in which one state or its citizens are opposed to another state or its citizens. to secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different states and their citizens, and which, owing its official existence to the union, will never be likely to feel any bias inauspicious to the principles on which it is founded. the fifth point will demand little animadversion. the most bigoted idolizers of state authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. these so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. the most important part of them are, by the present confederation, submitted to federal jurisdiction. the reasonableness of the agency of the national courts in cases in which the state tribunals cannot be supposed to be impartial, speaks for itself. no man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. this principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different states and their citizens. and it ought to have the same operation in regard to some cases between citizens of the same state. claims to land under grants of different states, founded upon adverse pretensions of boundary, are of this description. the courts of neither of the granting states could be expected to be unbiased. the laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the state to which they belonged. and even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government. having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. it is to comprehend "all cases in law and equity arising under the constitution, the laws of the united states, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the united states shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands and grants of different states; and between a state or the citizens thereof and foreign states, citizens, and subjects." this constitutes the entire mass of the judicial authority of the union. let us now review it in detail. it is, then, to extend: first. to all cases in law and equity, arising under the constitution and the laws of the united states. this corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the united states. it has been asked, what is meant by "cases arising under the constitution," in contradiction from those "arising under the laws of the united states"? the difference has been already explained. all the restrictions upon the authority of the state legislatures furnish examples of it. they are not, for instance, to emit paper money; but the interdiction results from the constitution, and will have no connection with any law of the united states. should paper money, notwithstanding, be emited, the controversies concerning it would be cases arising under the constitution and not the laws of the united states, in the ordinary signification of the terms. this may serve as a sample of the whole. it has also been asked, what need of the word "equity what equitable causes can grow out of the constitution and laws of the united states? there is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the states. it is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. in such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. agreements to convey lands claimed under the grants of different states, may afford another example of the necessity of an equitable jurisdiction in the federal courts. this reasoning may not be so palpable in those states where the formal and technical distinction between law and equity is not maintained, as in this state, where it is exemplified by every day's practice. the judiciary authority of the union is to extend: second. to treaties made, or which shall be made, under the authority of the united states, and to all cases affecting ambassadors, other public ministers, and consuls. these belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace. third. to cases of admiralty and maritime jurisdiction. these form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts. fourth. to controversies to which the united states shall be a party. these constitute the third of those classes. fifth. to controversies between two or more states; between a state and citizens of another state; between citizens of different states. these belong to the fourth of those classes, and partake, in some measure, of the nature of the last. sixth. to cases between the citizens of the same state, claiming lands under grants of different states. these fall within the last class, and are the only instances in which the proposed constitution directly contemplates the cognizance of disputes between the citizens of the same state. seventh. to cases between a state and the citizens thereof, and foreign states, citizens, or subjects. these have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature. from this review of the particular powers of the federal judiciary, as marked out in the constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. if some partial inconviences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. the possibility of particular mischiefs can never be viewed, by a wellinformed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. publius. federalist. no. 81 the judiciary continued, and the distribution of the judicial authority from mclean's edition, new york. hamilton to the people of the state of new york: let us now return to the partition of the judiciary authority between different courts, and their relations to each other, "the judicial power of the united states is" (by the plan of the convention) "to be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish."1 that there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. the reasons for it have been assigned in another place, and are too obvious to need repetition. the only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. the same contradiction is observable in regard to this matter which has been remarked in several other cases. the very men who object to the senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body. the arguments, or rather suggestions, upon which this charge is founded, are to this effect: "the authority of the proposed supreme court of the united states, which is to be a separate and independent body, will be superior to that of the legislature. the power of construing the laws according to the spirit of the constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. this is as unprecedented as it is dangerous. in britain, the judical power, in the last resort, resides in the house of lords, which is a branch of the legislature; and this part of the british government has been imitated in the state constitutions in general. the parliament of great britain, and the legislatures of the several states, can at any time rectify, by law, the exceptionable decisions of their respective courts. but the errors and usurpations of the supreme court of the united states will be uncontrollable and remediless." this, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact. in the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every state. i admit, however, that the constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the constitution. but this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited constitution; and as far as it is true, is equally applicable to most, if not to all the state governments. there can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion. but perhaps the force of the objection may be thought to consist in the particular organization of the supreme court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of great britain and that of the state. to insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. it shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a part of the legislative body. but though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. from a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. the same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the constitution in the character of legislators, would be disposed to repair the breach in the character of judges. nor is this all. every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. there is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. and there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. the members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. the habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity. these considerations teach us to applaud the wisdom of those states who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of new hampshire, massachusetts, pennsylvania, delaware, maryland, virginia, north carolina, south carolina, and georgia; and the preference which has been given to those models is highly to be commended. it is not true, in the second place, that the parliament of great britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the united states. the theory, neither of the british, nor the state constitutions, authorizes the revisal of a judicial sentence by a legislative act. nor is there any thing in the proposed constitution, more than in either of them, by which it is forbidden. in the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. a legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. this is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the state governments, as to the national government now under consideration. not the least difference can be pointed out in any view of the subject. it may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. this may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. and the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. this is alone a complete security. there never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. while this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the senate a court for the trial of impeachments. having now examined, and, i trust, removed the objections to the distinct and independent organization of the supreme court, i proceed to consider the propriety of the power of constituting inferior courts,2 and the relations which will subsist between these and the former. the power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the supreme court in every case of federal cognizance. it is intended to enable the national government to institute or authoruze, in each state or district of the united states, a tribunal competent to the determination of matters of national jurisdiction within its limits. but why, it is asked, might not the same purpose have been accomplished by the instrumentality of the state courts? this admits of different answers. though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national constitution. to confer the power of determining such causes upon the existing courts of the several states, would perhaps be as much "to constitute tribunals," as to create new courts with the like power. but ought not a more direct and explicit provision to have been made in favor of the state courts? there are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the states would be improper channels of the judicial authority of the union. state judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. and if there was a necessity for confiding the original cognizance of causes arising under those laws to them there would be a correspondent necessity for leaving the door of appeal as wide as possible. in proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. and well satisfied as i am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention. i should consider every thing calculated to give, in practice, an unrestrained course to appeals, as a source of public and private inconvenience. i am not sure, but that it will be found highly expedient and useful, to divide the united states into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every state. the judges of these courts, with the aid of the state judges, may hold circuits for the trial of causes in the several parts of the respective districts. justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. this plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed constitution. these reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the union. the supreme court is to be invested with original jurisdiction, only "in cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party." public ministers of every class are the immediate representatives of their sovereigns. all questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. in cases in which a state might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. though it may rather be a digression from the immediate subject of this paper, i shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. it has been suggested that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation. it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. this is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union. unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal. the circumstances which are necessary to produce an alienation of state sovereignty were discussed in considering the article of taxation, and need not be repeated here. a recurrence to the principles there established will satisfy us, that there is no color to pretend that the state governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. the contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. they confer no right of action, independent of the sovereign will. to what purpose would it be to authorize suits against states for the debts they owe? how could recoveries be enforced? it is evident, it could not be done without waging war against the contracting state; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable. let us resume the train of our observations. we have seen that the original jurisdiction of the supreme court would be confined to two classes of causes, and those of a nature rarely to occur. in all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the supreme court would have nothing more than an appellate jurisdiction, "with such exceptions and under such regulations as the congress shall make." the propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. some well-intentioned men in this state, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. a technical sense has been affixed to the term "appellate," which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. but if i am not misinformed, the same meaning would not be given to it in any part of new england. there an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. the word "appellate," therefore, will not be understood in the same sense in new england as in new york, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular state. the expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. the mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. if, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the supreme court. but it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the supreme court. why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this state, that the latter has jurisdiction of the fact as well as the law? it is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it.3 this is jurisdiction of both fact and law; nor is it even possible to separate them. though the common-law courts of this state ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. i contend, therefore, on this ground, that the expressions, "appellate jurisdiction, both as to law and fact," do not necessarily imply a re-examination in the supreme court of facts decided by juries in the inferior courts. the following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. the appellate jurisdiction of the supreme court (it may have been argued) will extend to causes determinable in different modes, some in the course of the common law, others in the course of the civil law. in the former, the revision of the law only will be, generally speaking, the proper province of the supreme court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. it is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. it will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the states all causes are tried in this mode4; and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. to avoid all inconveniencies, it will be safest to declare generally, that the supreme court shall possess appellate jurisdiction both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the national legislature may prescribe. this will enable the government to modify it in such a manner as will best answer the ends of public justice and security. this view of the matter, at any rate, puts it out of all doubt that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. the legislature of the united states would certainly have full power to provide, that in appeals to the supreme court there should be no re-examination of facts where they had been tried in the original causes by juries. this would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial. the amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the supreme court, and the rest consigned to the subordinate tribunals; that the supreme court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source. publius. 1 article 3, sec. i. 2 this power has been absurdly represented as intended to abolish all the county courts in the several states, which are commonly called inferior courts. but the expressions of the constitution are, to constitute "tribunals inferior to the supreme court"; and the evident design of the provision is to enable the institution of local courts, subordinate to the supreme, either in states or larger districts. it is ridiculous to imagine that county courts were in contemplation. 3 this word is composed of jus and dictio, juris dictio or a speaking and pronouncing of the law. 4 i hold that the states will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper. federalist no. 82 the judiciary continued from mclean's edition, new york. hamilton to the people of the state of new york: the erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. 't is time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent whole. such questions, accordingly, have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. the principal of these respect the situation of the state courts in regard to those causes which are to be submitted to federal jurisdiction. is this to be exclusive, or are those courts to possess a concurrent jurisdiction? if the latter, in what relation will they stand to the national tribunals? these are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention. the principles established in a former paper1 teach us that the states will retain all pre-existing authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the union; or where a particular authority is granted to the union, and the exercise of a like authority is prohibited to the states; or where an authority is granted to the union, with which a similar authority in the states would be utterly incompatible. though these principles may not apply with the same force to the judiciary as to the legislative power, yet i am inclined to think that they are, in the main, just with respect to the former, as well as the latter. and under this impression, i shall lay it down as a rule, that the state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. the only thing in the proposed constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage: "the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as the congress shall from time to time ordain and establish." this might either be construed to signify, that the supreme and subordinate courts of the union should alone have the power of deciding those causes to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one supreme court, and as many subordinate courts as congress should think proper to appoint; or in other words, that the united states should exercise the judicial power with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. the first excludes, the last admits, the concurrent jurisdiction of the state tribunals; and as the first would amount to an alienation of state power by implication, the last appears to me the most natural and the most defensible construction. but this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the state courts have previous cognizance. it is not equally evident in relation to cases which may grow out of, and be peculiar to, the constitution to be established; for not to allow the state courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority. i mean not therefore to contend that the united states, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but i hold that the state courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and i am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. this i infer from the nature of judiciary power, and from the general genius of the system. the judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. those of japan, not less than of new york, may furnish the objects of legal discussion to our courts. when in addition to this we consider the state governments and the national governments, as they truly are, in the light of kindred systems, and as parts of one whole, the inference seems to be conclusive, that the state courts would have a concurrent jurisdiction in all cases arising under the laws of the union, where it was not expressly prohibited. here another question occurs: what relation would subsist between the national and state courts in these instances of concurrent jurisdiction? i answer, that an appeal would certainly lie from the latter, to the supreme court of the united states. the constitution in direct terms gives an appellate jurisdiction to the supreme court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. the objects of appeal, not the tribunals from which it is to be made, are alone contemplated. from this circumstance, and from the reason of the thing, it ought to be construed to extend to the state tribunals. either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the union may be eluded at the pleasure of every plaintiff or prosecutor. neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. nor do i perceive any foundation for such a supposition. agreeably to the remark already made, the national and state systems are to be regarded as one whole. the courts of the latter will of course be natural auxiliaries to the execution of the laws of the union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions. the evident aim of the plan of the convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the union. to confine, therefore, the general expressions giving appellate jurisdiction to the supreme court, to appeals from the subordinate federal courts, instead of allowing their extension to the state courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation. but could an appeal be made to lie from the state courts to the subordinate federal judicatories? this is another of the questions which have been raised, and of greater difficulty than the former. the following considerations countenance the affirmative. the plan of the convention, in the first place, authorizes the national legislature "to constitute tribunals inferior to the supreme court."2 it declares, in the next place, that "the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as congress shall ordain and establish"; and it then proceeds to enumerate the cases to which this judicial power shall extend. it afterwards divides the jurisdiction of the supreme court into original and appellate, but gives no definition of that of the subordinate courts. the only outlines described for them, are that they shall be "inferior to the supreme court," and that they shall not exceed the specified limits of the federal judiciary. whether their authority shall be original or appellate, or both, is not declared. all this seems to be left to the discretion of the legislature. and this being the case, i perceive at present no impediment to the establishment of an appeal from the state courts to the subordinate national tribunals; and many advantages attending the power of doing it may be imagined. it would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the supreme court. the state tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases in which they may be deemed proper, instead of being carried to the supreme court, may be made to lie from the state courts to district courts of the union. publius. 1 no. 31. 2 sec. 8th art. 1st. federalist no. 83 the judiciary continued in relation to trial by jury from mclean's edition, new york. hamilton to the people of the state of new york: the objection to the plan of the convention, which has met with most success in this state, and perhaps in several of the other states, is that relative to the want of a constitutional provision for the trial by jury in civil cases. the disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. the mere silence of the constitution in regard to civil causes, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to criminal causes. to argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the existence of matter, or to demonstrate any of those propositions which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning. with regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only not provided for, is entirely abolished. every man of discernment must at once perceive the wide difference between silence and abolition. but as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken. the maxims on which they rely are of this nature: "a specification of particulars is an exclusion of generals"; or, "the expression of one thing is the exclusion of another." hence, say they, as the constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter. the rules of legal interpretation are rules of commonsense, adopted by the courts in the construction of the laws. the true test, therefore, of a just application of them is its conformity to the source from which they are derived. this being the case, let me ask if it is consistent with common-sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? if such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others. a power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. this discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. the specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge the power of the legislature to exercise that mode if it should be thought proper. the pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation. from these observations this conclusion results: that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common-sense, and therefore not admissible. even if these maxims had a precise technical sense, corresponding with the idea of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. in relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction. having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. this will be best done by examples. the plan of the convention declares that the power of congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. this specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. in like manner the judicial authority of the federal judicatures is declared by the constitution to comprehend certain cases particularly specified. the expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. these examples are sufficient to elucidate the maxims which have been mentioned, and to designate the manner in which they should be used. but that there may be no misapprehensions upon this subject, i shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them. let us suppose that by the laws of this state a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. in such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance, because the woman having no previous power to alienate her property, the specification determines the particular mode which she is, for that purpose, to avail herself of. but let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value? the position is too absurd to merit a refutation, and yet this is precisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in cases of a criminal nature. from these observations it must appear unquestionably true, that trial by jury is in no case abolished by the proposed constitution, and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the state constitutions, and will be in no degree altered or influenced by the adoption of the plan under consideration. the foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the state courts only, and in the manner which the state constitutions and laws prescribe. all land causes, except where claims under the grants of different states come into question, and all other controversies between the citizens of the same state, unless where they depend upon positive violations of the articles of union, by acts of the state legislatures, will belong exclusively to the jurisdiction of the state tribunals. add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected to any great extent by the proposed alteration in our system of government. the friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. for my own part, the more the operation of the institution has fallen under my observation, the more reason i have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. but i must acknowledge that i cannot readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases. arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. the trial by jury in criminal cases, aided by the habeas-corpus act, seems therefore to be alone concerned in the question. and both of these are provided for, in the most ample manner, in the plan of the convention. it has been observed, that trial by jury is a safeguard against an oppressive exercise of the power of taxation. this observation deserves to be canvassed. it is evident that it can have no influence upon the legislature, in regard to the amount of taxes to be laid, to the objects upon which they are to be imposed, or to the rule by which they are to be apportioned. if it can have any influence, therefore, it must be upon the mode of collection, and the conduct of the officers intrusted with the execution of the revenue laws. as to the mode of collection in this state, under our own constitution, the trial by jury is in most cases out of use. the taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. and it is acknowledged on all hands, that this is essential to the efficacy of the revenue laws. the dilatory course of a trial at law to recover the taxes imposed on individuals, would neither suit the exigencies of the public nor promote the convenience of the citizens. it would often occasion an accumulation of costs, more burdensome than the original sum of the tax to be levied. and as to the conduct of the officers of the revenue, the provision in favor of trial by jury in criminal cases, will afford the security aimed at. wilful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case. the excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. the strongest argument in its favor is, that it is a security against corruption. as there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. the force of this consideration is, however, diminished by others. the sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. it is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. in the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. but making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. it greatly multiplies the impediments to its success. as matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. by increasing the obstacles to success, it discourages attempts to seduce the integrity of either. the temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes. notwithstanding, therefore, the doubts i have expressed, as to the essentiality of trial by jury in civil cases to liberty, i admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that on this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended. there is, however, in all cases, great difficulty in this; and men not blinded by enthusiasm must be sensible that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other, that difficulty must be not a little augmented. for my own part, at every new view i take of the subject, i become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention. the great difference between the limits of the jury trial in different states is not generally understood; and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point, an explanation of it is necessary. in this state, our judicial establishments resemble, more nearly than in any other, those of great britain. we have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in england), a court of admiralty and a court of chancery. in the courts of common law only, the trial by jury prevails, and this with some exceptions. in all the others a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury.1 in new jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. in that state the courts of common law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in new jersey than in new york. in pennsylvania, this is perhaps still more the case, for there is no court of chancery in that state, and its common-law courts have equity jurisdiction. it has a court of admiralty, but none of probates, at least on the plan of ours. delaware has in these respects imitated pennsylvania. maryland approaches more nearly to new york, as does also virginia, except that the latter has a plurality of chancellors. north carolina bears most affinity to pennsylvania; south carolina to virginia. i believe, however, that in some of those states which have distinct courts of admiralty, the causes depending in them are triable by juries. in georgia there are none but common-law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. in connecticut, they have no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. their common-law courts have admiralty and, to a certain extent, equity jurisdiction. in cases of importance, their general assembly is the only court of chancery. in connecticut, therefore, the trial by jury extends in practice further than in any other state yet mentioned. rhode island is, i believe, in this particular, pretty much in the situation of connecticut. massachusetts and new hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. in the four eastern states, the trial by jury not only stands upon a broader foundation than in the other states, but it is attended with a peculiarity unknown, in its full extent, to any of them. there is an appeal of course from one jury to another, till there have been two verdicts out of three on one side. from this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several states; and from this fact these obvious reflections flow: first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the states; and secondly, that more or at least as much might have been hazarded by taking the system of any one state for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation. the propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. the minority of pennsylvania have proposed this mode of expression for the purpose "trial by jury shall be as heretofore" and this i maintain would be senseless and nugatory. the united states, in their united or collective capacity, are the object to which all general provisions in the constitution must necessarily be construed to refer. now it is evident that though trial by jury, with various limitations, is known in each state individually, yet in the united states, as such, it is at this time altogether unknown, because the present federal government has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term heretofore could relate. it would therefore be destitute of a precise meaning, and inoperative from its uncertainty. as, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if i apprehend that intent rightly, it would be in itself inexpedient. i presume it to be, that causes in the federal courts should be tried by jury, if, in the state where the courts sat, that mode of trial would obtain in a similar case in the state courts; that is to say, admiralty causes should be tried in connecticut by a jury, in new york without one. the capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every wellregulated judgment towards it. whether the cause should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties. but this is not, in my estimation, the greatest objection. i feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. i think it so particularly in cases which concern the public peace with foreign nations that is, in most cases where the question turns wholly on the laws of nations. of this nature, among others, are all prize causes. juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. there would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable. it will add great weight to this remark, in relation to prize causes, to mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of europe, and that, pursuant to such treaties, they are determinable in great britain, in the last resort, before the king himself, in his privy council, where the fact, as well as the law, undergoes a re-examination. this alone demonstrates the impolicy of inserting a fundamental provision in the constitution which would make the state systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable. my convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. the great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions2 to general rules. to unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a special determination; while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. they require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. the simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars. it is true that the separation of the equity from the legal jurisdiction is peculiar to the english system of jurisprudence: which is the model that has been followed in several of the states. but it is equally true that the trial by jury has been unknown in every case in which they have been united. and the separation is essential to the preservation of that institution in its pristine purity. the nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this state, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode. these appeared to be conclusive reasons against incorporating the systems of all the states, in the formation of the national judiciary, according to what may be conjectured to have been the attempt of the pennsylvania minority. let us now examine how far the proposition of massachusetts is calculated to remedy the supposed defect. it is in this form: "in civil actions between citizens of different states, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them request it." this, at best, is a proposition confined to one description of causes; and the inference is fair, either that the massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. if the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. if the last, it affords a strong corroboration of the extreme difficulty of the thing. but this is not all: if we advert to the observations already made respecting the courts that subsist in the several states of the union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize that species of causes which it is intended shall be entitled to a trial by jury. in this state, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in england upon that subject. in many of the other states the boundaries are less precise. in some of them every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. hence the same irregularity and confusion would be introduced by a compliance with this proposition, that i have already noticed as resulting from the regulation proposed by the pennsylvania minority. in one state a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another state, a cause exactly similar to the other, must be decided without the intervention of a jury, because the state judicatories varied as to common-law jurisdiction. it is obvious, therefore, that the massachusetts proposition, upon this subject cannot operate as a general regulation, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different states. to devise a plan of that kind is a task arduous in itself, and which it would require much time and reflection to mature. it would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the states in the union, or that would perfectly quadrate with the several state institutions. it may be asked, why could not a reference have been made to the constitution of this state, taking that, which is allowed by me to be a good one, as a standard for the united states? i answer that it is not very probable the other states would entertain the same opinion of our institutions as we do ourselves. it is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. if the plan of taking one state as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government; and it must be uncertain which of the states would have been taken as the model. it has been shown that many of them would be improper ones. and i leave it to conjecture, whether, under all circumstances, it is most likely that new york, or some other state, would have been preferred. but admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other states, at the partiality which had been shown to the institutions of one. the enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment. to avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. for this i believe, no precedent is to be found in any member of the union; and the considerations which have been stated in discussing the proposition of the minority of pennsylvania, must satisfy every sober mind that the establishment of the trial by jury in all cases would have been an unpardonable error in the plan. in short, the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government. i cannot but persuade myself, on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds the apprehensions they may have entertained on the point. they have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the state constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished3 by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a constitution for the united states. the best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining questions of property preferable in many cases in which that mode of trial now prevails. for my part, i acknowledge myself to be convinced that even in this state it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. it is conceded by all reasonable men that it ought not to obtain in all cases. the examples of innovations which contract its ancient limits, as well in these states as in great britain, afford a strong presumption that its former extent has been found inconvenient, and give room to suppose that future experience may discover the propriety and utility of other exceptions. i suspect it to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the legislature. this is now clearly understood to be the case in great britain, and it is equally so in the state of connecticut; and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this state since the revolution, though provided for by a positive article of our constitution, than has happened in the same time either in connecticut or great britain. it may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career. the truth is that the general genius of a government is all that can be substantially relied upon for permanent effects. particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them; and the want of them will never be, with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good government. it certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a constitution which expressly establishes the trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that connecticut, which has been always regarded as the most popular state in the union, can boast of no constitutional provision for either. publius. 1 it has been erroneously insinuated, with regard to the court of chancery, that this court generally tries disputed facts by a jury. the truth is, that references to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question. 2 it is true that the principles by which that relief is governed are now reduced to a regular system; but it is not the less true that they are in the main applicable to special circumstances, which form exceptions to general rules. 3 vide no. 81, in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the supreme court, is examined and refuted. federalist no. 84 certain general and miscellaneous objections to the constitution considered and answered from mclean's edition, new york. hamilton to the people of the state of new york: in the course of the foregoing review of the constitution, i have taken notice of, and endeavored to answer most of the objections which have appeared against it. there, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. these shall now be discussed; but as the subject has been drawn into great length, i shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper. the most considerable of the remaining objections is that the plan of the convention contains no bill of rights. among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the states are in a similar predicament. i add that new york is of the number. and yet the opposers of the new system, in this state, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. to justify their zeal in this matter, they allege two things: one is that, though the constitution of new york has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the constitution adopts, in their full extent, the common and statute law of great britain, by which many other rights, not expressed in it, are equally secured. to the first i answer, that the constitution proposed by the convention contains, as well as the constitution of this state, a number of such provisions. independent of those which relate to the structure of the government, we find the following: article 1, section 3, clause 7 "judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the united states; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." section 9, of the same article, clause 2 "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." clause 3 "no bill of attainder or ex-post-facto law shall be passed." clause 7 "no title of nobility shall be granted by the united states; and no person holding any office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." article 3, section 2, clause 3 "the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed." section 3, of the same article "treason against the united states shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." and clause 3, of the same section "the congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." it may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this state. the establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of titles of nobility, to which we have no corresponding provision in our constitution, are perhaps greater securities to liberty and republicanism than any it contains. the creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. the observations of the judicious blackstone,1 in reference to the latter, are well worthy of recital: "to bereave a man of life, usays he,e or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." and as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls "the bulwark of the british constitution."2 nothing need be said to illustrate the importance of the prohibition of titles of nobility. this may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people. to the second that is, to the pretended establishment of the common and state law by the constitution, i answer, that they are expressly made subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." they are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. the only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the revolution. this consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself. it has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. such was magna charta, obtained by the barons, sword in hand, from king john. such were the subsequent confirmations of that charter by succeeding princes. such was the petition of right assented to by charles i., in the beginning of his reign. such, also, was the declaration of right presented by the lords and commons to the prince of orange in 1688, and afterwards thrown into the form of an act of parliament called the bill of rights. it is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "we, the people of the united states, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america." here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government. but a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. if, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this state. but the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired. i go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. they would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. for why declare that things shall not be done which there is no power to do? why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? i will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. they might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. this may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. on the subject of the liberty of the press, as much as has been said, i cannot forbear adding a remark or two: in the first place, i observe, that there is not a syllable concerning it in the constitution of this state; in the next, i contend, that whatever has been said about it in that of any other state, amounts to nothing. what signifies a declaration, that "the liberty of the press shall be inviolably preserved"? what is the liberty of the press? who can give it any definition which would not leave the utmost latitude for evasion? i hold it to be impracticable; and from this i infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.3 and here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights. there remains but one other view of this matter to conclude the point. the truth is, after all the declamations we have heard, that the constitution is itself, in every rational sense, and to every useful purpose, a bill of rights. the several bills of rights in great britain form its constitution, and conversely the constitution of each state is its bill of rights. and the proposed constitution, if adopted, will be the bill of rights of the union. is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? this is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the state constitutions. is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? this we have seen has also been attended to, in a variety of cases, in the same plan. adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. it may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. it certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. and hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: "it is improper," say the objectors, "to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the states to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body." this argument, if it proves any thing, proves that there ought to be no general government whatever. for the powers which, it seems to be agreed on all hands, ought to be vested in the union, cannot be safely intrusted to a body which is not under every requisite control. but there are satisfactory reasons to show that the objection is in reality not well founded. there is in most of the arguments which relate to distance a palpable illusion of the imagination. what are the sources of information by which the people in montgomery county must regulate their judgment of the conduct of their representatives in the state legislature? of personal observation they can have no benefit. this is confined to the citizens on the spot. they must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? evidently from the complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. this does not apply to montgomery county only, but to all the counties at any considerable distance from the seat of government. it is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the state governments. the executive and legislative bodies of each state will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. and we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their state representatives. it ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. the public papers will be expeditious messengers of intelligence to the most remote inhabitants of the union. among the many curious objections which have appeared against the proposed constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due to the united states. this has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. the newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. in addition to the remarks i have made upon the subject in another place, i shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that "states neither lose any of their rights, nor are discharged from any of their obligations, by a change in the form of their civil government."4 the last objection of any consequence, which i at present recollect, turns upon the article of expense. if it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan. the great bulk of the citizens of america are with reason convinced, that union is the basis of their political happiness. men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government a single body being an unsafe depositary of such ample authorities. in conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. the two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which congress, under the existing confederation, may be composed. it is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. it is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people. whence is the dreaded augmentation of expense to spring? one source indicated, is the multiplication of offices under the new government. let us examine this a little. it is evident that the principal departments of the administration under the present government, are the same which will be required under the new. there are now a secretary of war, a secretary of foreign affairs, a secretary for domestic affairs, a board of treasury, consisting of three persons, a treasurer, assistants, clerks, etc. these officers are indispensable under any system, and will suffice under the new as well as the old. as to ambassadors and other ministers and agents in foreign countries, the proposed constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. as to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. it will be in most cases nothing more than an exchange of state for national officers. in the collection of all duties, for instance, the persons employed will be wholly of the latter description. the states individually will stand in no need of any for this purpose. what difference can it make in point of expense to pay officers of the customs appointed by the state or by the united states? there is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former. where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? the chief item which occurs to me respects the support of the judges of the united states. i do not add the president, because there is now a president of congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the president of the united states. the support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. but upon no reasonable plan can it amount to a sum which will be an object of material consequence. let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. the first thing which presents itself is that a great part of the business which now keeps congress sitting through the year will be transacted by the president. even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the senate, and subject to their final concurrence. hence it is evident that a portion of the year will suffice for the session of both the senate and the house of representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. the extra business of treaties and appointments may give this extra occupation to the senate. from this circumstance we may infer that, until the house of representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future congress. but there is another circumstance of great importance in the view of economy. the business of the united states has hitherto occupied the state legislatures, as well as congress. the latter has made requisitions which the former have had to provide for. hence it has happened that the sessions of the state legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the states. more than half their time has been frequently employed in matters which related to the united states. now the members who compose the legislatures of the several states amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. the congress under the proposed government will do all the business of the united states themselves, without the intervention of the state legislatures, who thenceforth will have only to attend to the affairs of their particular states, and will not have to sit in any proportion as long as they have heretofore done. this difference in the time of the sessions of the state legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system. the result from these observations is that the sources of additional expense from the establishment of the proposed constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the union. publius. 1. vide blackstone's "commentaries," vol. 1., p. 136. 2. vide blackstone's "commentaries," vol. iv., p. 438. 3. to show that there is a power in the constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. it is said that duties may be laid upon the publications so high as to amount to a prohibition. i know not by what logic it could be maintained, that the declarations in the state constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the state legislatures. it cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. we know that newspapers are taxed in great britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. and if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. the same invasions of it may be effected under the state constitutions which contain those declarations through the means of taxation, as under the proposed constitution, which has nothing of the kind. it would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained. federalist no. 85 concluding remarks from mclean's edition, new york. hamilton to the people of the state of new york: according to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion two points: "the analogy of the proposed government to your own state constitution," and "the additional security which its adoption will afford to republican government, to liberty, and to property." but these heads have been so fully anticipated and exhausted in the progress of the work, that it would now scarcely be possible to do any thing more than repeat, in a more dilated form, what has been heretofore said, which the advanced stage of the question, and the time already spent upon it, conspire to forbid. it is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this state holds, not less with regard to many of the supposed defects, than to the real excellences of the former. among the pretended defects are the re-eligibility of the executive, the want of a council, the omission of a formal bill of rights, the omission of a provision respecting the liberty of the press. these and several others which have been noted in the course of our inquiries are as much chargeable on the existing constitution of this state, as on the one proposed for the union; and a man must have slender pretensions to consistency, who can rail at the latter for imperfections which he finds no difficulty in excusing in the former. nor indeed can there be a better proof of the insincerity and affectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally or perhaps more vulnerable. the additional securities to republican government, to liberty and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the union will impose on local factions and insurrections, and on the ambition of powerful individuals in single states, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportunities to foreign intrigue, which the dissolution of the confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the states in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the state governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals. thus have i, fellow-citizens, executed the task i had assigned to myself; with what success, your conduct must determine. i trust at least you will admit that i have not failed in the assurance i gave you respecting the spirit with which my endeavors should be conducted. i have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and which have been not a little provoked by the language and conduct of the opponents of the constitution. the charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. the perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. and the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men. it is not impossible that these circumstances may have occasionally betrayed me into intemperances of expression which i did not intend; it is certain that i have frequently felt a struggle between sensibility and moderation; and if the former has in some instances prevailed, it must be my excuse that it has been neither often nor much. let us now pause and ask ourselves whether, in the course of these papers, the proposed constitution has not been satisfactorily vindicated from the aspersions thrown upon it; and whether it has not been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. this is a duty from which nothing can give him a dispensation. 't is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. no partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation; and let him remember that a majority of america has already given its sanction to the plan which he is to approve or reject. i shall not dissemble that i feel an entire confidence in the arguments which recommend the proposed system to your adoption, and that i am unable to discern any real force in those by which it has been opposed. i am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced. concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. "why," say they, "should we adopt an imperfect thing? why not amend it and make it perfect before it is irrevocably established?" this may be plausible enough, but it is only plausible. in the first place i remark, that the extent of these concessions has been greatly exaggerated. they have been stated as amounting to an admission that the plan is radically defective, and that without material alterations the rights and the interests of the community cannot be safely confided to it. this, as far as i have understood the meaning of those who make the concessions, is an entire perversion of their sense. no advocate of the measure can be found, who will not declare as his sentiment, that the system, though it may not be perfect in every part, is, upon the whole, a good one; is the best that the present views and circumstances of the country will permit; and is such an one as promises every species of security which a reasonable people can desire. i answer in the next place, that i should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. i never expect to see a perfect work from imperfect man. the result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. the compacts which are to embrace thirteen distinct states in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. how can perfection spring from such materials? the reasons assigned in an excellent little pamphlet lately published in this city,1 are unanswerable to show the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded. i will not repeat the arguments there used, as i presume the production itself has had an extensive circulation. it is certainly well worthy the perusal of every friend to his country. there is, however, one point of light in which the subject of amendments still remains to be considered, and in which it has not yet been exhibited to public view. i cannot resolve to conclude without first taking a survey of it in this aspect. it appears to me susceptible of absolute demonstration, that it will be far more easy to obtain subsequent than previous amendments to the constitution. the moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each state. to its complete establishment throughout the union, it will therefore require the concurrence of thirteen states. if, on the contrary, the constitution proposed should once be ratified by all the states as it stands, alterations in it may at any time be effected by nine states. here, then, the chances are as thirteen to nine2 in favor of subsequent amendment, rather than of the original adoption of an entire system. this is not all. every constitution for the united states must inevitably consist of a great variety of particulars, in which thirteen independent states are to be accommodated in their interests or opinions of interest. we may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. many of those who form a majority on one question, may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act. the degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties. but every amendment to the constitution, if once established, would be a single proposition, and might be brought forward singly. there would then be no necessity for management or compromise, in relation to any other point no giving nor taking. the will of the requisite number would at once bring the matter to a decisive issue. and consequently, whenever nine, or rather ten states, were united in the desire of a particular amendment, that amendment must infallibly take place. there can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete constitution. in opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. for my own part i acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, i think there is no weight in the observation just stated. i also think there is little weight in it on another account. the intrinsic difficulty of governing thirteen states at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. but there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. it is this that the national rulers, whenever nine states concur, will have no option upon the subject. by the fifth article of the plan, the congress will be obliged "on the application of the legislatures of two thirds of the states, which at present amount to nine, to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the constitution, when ratified by the legislatures of three fourths of the states, or by conventions in three fourths thereof." the words of this article are peremptory. the congress "shall call a convention." nothing in this particular is left to the discretion of that body. and of consequence, all the declamation about the disinclination to a change vanishes in air. nor however difficult it may be supposed to unite two thirds or three fourths of the state legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. we may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority. if the foregoing argument is a fallacy, certain it is that i am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object. the zeal for attempts to amend, prior to the establishment of the constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious: "to balance a large state or society usays hee, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. the judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments."3 these judicious reflections contain a lesson of moderation to all the sincere lovers of the union, and ought to put them upon their guard against hazarding anarchy, civil war, a perpetual alienation of the states from each other, and perhaps the military despotism of a victorious demagogue, in the pursuit of what they are not likely to obtain, but from time and experience. it may be in me a defect of political fortitude, but i acknowledge that i cannot entertain an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. a nation, without a national government, is, in my view, an awful spectacle. the establishment of a constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which i look forward with trembling anxiety. i can reconcile it to no rules of prudence to let go the hold we now have, in so arduous an enterprise, upon seven out of the thirteen states, and after having passed over so considerable a part of the ground, to recommence the course. i dread the more the consequences of new attempts, because i know that powerful individuals, in this and in other states, are enemies to a general national government in every possible shape. publius. 1 entitled "an address to the people of the state of new york." 2 it may rather be said ten, for though two thirds may set on foot the measure, three fourths must ratify. 3 hume's "essays," vol. i., page 128: "the rise of arts and sciences."