|| Federalist No. 62 ||
The Senate
Independent Journal:
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 ||
Part II: The Senate
Independent Journal: March 1, 1788
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
New York Packet: March 7, 1788.
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
New York Packet: March 7, 1788.
Alexander
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
New York Packet: March 11, 1788.
Alexander
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
New York Packet: March 11, 1788.
Alexander
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 ?? 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."
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
New York Packet: March 14, 1788.
Alexander
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
New York Packet: March 14, 1788.
Alexander
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 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
New York Packet: March 18, 1788.
Alexander
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 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.
``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, 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 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 attainable. 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
New York Packet: March 18, 1788.
Alexander
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 ||
Part II: The Duration in Office of the
Executive
and Re-Eligibility of the Executive Considered
New York Packet: March 21, 1788.
Alexander
Hamilton
To the People of the State of New
York:
THE administration of government, in
its largest sense, comprehends all the operations of the body politic, whether
legislative, executive, or judiciary; but in its most usual, and perhaps its
most precise signification. it is limited to executive details, and falls
peculiarly within the province of the executive department. The actual conduct
of foreign negotiations, the preparatory plans of finance, the application and
disbursement of the public moneys in conformity to the general appropriations
of the legislature, the arrangement of the army and navy, the directions of the
operations of war, these, and other matters of a like nature, constitute what
seems to be most properly understood by the administration of government. The
persons, therefore, to whose immediate management these different matters are
committed, ought to be considered as the assistants or deputies of the chief
magistrate, and on this account, they ought to derive their offices from his
appointment, at least from his nomination, and ought to be subject to his
superintendence. This view of the subject will at once suggest to us the
intimate connection between the duration of the executive magistrate in office
and the stability of the system of administration. To reverse and undo what has
been done by a predecessor, is very often considered by a successor as the best
proof he can give of his own capacity and desert; and in addition to this
propensity, where the alteration has been the result of public choice, the
person substituted is warranted in supposing that the dismission of his
predecessor has proceeded from a dislike to his measures; and that the less he
resembles him, the more he will recommend himself to the favor of his
constituents. These considerations, and the influence of personal confidences
and attachments, would be likely to induce every new President to promote a
change of men to fill the subordinate stations; and these causes together could
not fail to occasion a disgraceful and ruinous mutability in the administration
of the government.
With a positive duration of
considerable extent, I connect the circumstance of re-eligibility. The first is
necessary to give to the officer himself the inclination and the resolution to
act his part well, and to the community time and leisure to observe the
tendency of his measures, and thence to form an experimental estimate of their
merits. The last is necessary to enable the people, when they see reason to
approve of his conduct, to continue him in his station, in order to prolong the
utility of his talents and virtues, and to secure to the government the
advantage of permanency in a wise system of administration.
Nothing appears more plausible at
first sight, nor more ill-founded upon close inspection, than a scheme which in
relation to the present point has had some respectable advocates, I mean that
of continuing the chief magistrate in office for a certain time, and then
excluding him from it, either for a limited period or forever after. This
exclusion, whether temporary or perpetual, would have nearly the same effects,
and these effects would be for the most part rather pernicious than salutary.
One ill effect of the exclusion would
be a diminution of the inducements to good behavior. There are few men who
would not feel much less zeal in the discharge of a duty when they were
conscious that the advantages of the station with which it was connected must
be relinquished at a determinate period, than when they were permitted to
entertain a hope of OBTAINING, by MERITING, a continuance of them. This
position will not be disputed so long as it is admitted that the desire of
reward is one of the strongest incentives of human conduct; or that the best
security for the fidelity of mankind is to make their interests coincide with
their duty. Even the love of fame, the ruling passion of the noblest minds,
which would prompt a man to plan and undertake extensive and arduous
enterprises for the public benefit, requiring considerable time to mature and
perfect them, if he could flatter himself with the prospect of being allowed to
finish what he had begun, would, on the contrary, deter him from the
undertaking, when he foresaw that he must quit the scene before he could
accomplish the work, and must commit that, together with his own reputation, to
hands which might be unequal or unfriendly to the task. The most to be expected
from the generality of men, in such a situation, is the negative merit of not
doing harm, instead of the positive merit of doing good.
Another ill effect of the exclusion
would be the temptation to sordid views, to peculation, and, in some instances,
to usurpation. An avaricious man, who might happen to fill the office, looking
forward to a time when he must at all events yield up the emoluments he
enjoyed, would feel a propensity, not easy to be resisted by such a man, to
make the best use of the opportunity he enjoyed while it lasted, and might not
scruple to have recourse to the most corrupt expedients to make the harvest as
abundant as it was transitory; though the same man, probably, with a different
prospect before him, might content himself with the regular perquisites of his
situation, and might even be unwilling to risk the consequences of an abuse of
his opportunities. His avarice might be a guard upon his avarice. Add to this
that the same man might be vain or ambitious, as well as avaricious. And if he
could expect to prolong his honors by his good conduct, he might hesitate to
sacrifice his appetite for them to his appetite for gain. But with the prospect
before him of approaching an inevitable annihilation, his avarice would be
likely to get the victory over his caution, his vanity, or his ambition.
An ambitious man, too, when he found
himself seated on the summit of his country's honors, when he looked forward to
the time at which he must descend from the exalted eminence for ever, and
reflected that no exertion of merit on his part could save him from the
unwelcome reverse; such a man, in such a situation, would be much more
violently tempted to embrace a favorable conjuncture for attempting the
prolongation of his power, at every personal hazard, than if he had the
probability of answering the same end by doing his duty.
Would it promote the peace of the community,
or the stability of the government to have half a dozen men who had had credit
enough to be raised to the seat of the supreme magistracy, wandering among the
people like discontented ghosts, and sighing for a place which they were
destined never more to possess?
A third ill effect of the exclusion
would be, the depriving the community of the advantage of the experience gained
by the chief magistrate in the exercise of his office. That experience is the
parent of wisdom, is an adage the truth of which is recognized by the wisest as
well as the simplest of mankind. What more desirable or more essential than
this quality in the governors of nations? Where more desirable or more
essential than in the first magistrate of a nation? Can it be wise to put this
desirable and essential quality under the ban of the Constitution, and to
declare that the moment it is acquired, its possessor shall be compelled to
abandon the station in which it was acquired, and to which it is adapted? This,
nevertheless, is the precise import of all those regulations which exclude men
from serving their country, by the choice of their fellow citizens, after they
have by a course of service fitted themselves for doing it with a greater
degree of utility.
A fourth ill effect of the exclusion
would be the banishing men from stations in which, in certain emergencies of
the state, their presence might be of the greatest moment to the public
interest or safety. There is no nation which has not, at one period or another,
experienced an absolute necessity of the services of particular men in
particular situations; perhaps it would not be too strong to say, to the
preservation of its political existence. How unwise, therefore, must be every
such self-denying ordinance as serves to prohibit a nation from making use of
its own citizens in the manner best suited to its exigencies and circumstances!
Without supposing the personal essentiality of the man, it is evident that a
change of the chief magistrate, at the breaking out of a war, or at any similar
crisis, for another, even of equal merit, would at all times be detrimental to
the community, inasmuch as it would substitute inexperience to experience, and
would tend to unhinge and set afloat the already settled train of the
administration.
A fifth ill effect of the exclusion
would be, that it would operate as a constitutional interdiction of stability
in the administration. By NECESSITATING a change of men, in the first office of
the nation, it would necessitate a mutability of measures. It is not generally
to be expected, that men will vary and measures remain uniform. The contrary is
the usual course of things. And we need not be apprehensive that there will be
too much stability, while there is even the option of changing; nor need we
desire to prohibit the people from continuing their confidence where they think
it may be safely placed, and where, by constancy on their part, they may
obviate the fatal inconveniences of fluctuating councils and a variable policy.
These are some of the disadvantages
which would flow from the principle of exclusion. They apply most forcibly to
the scheme of a perpetual exclusion; but when we consider that even a partial
exclusion would always render the readmission of the person a remote and
precarious object, the observations which have been made will apply nearly as
fully to one case as to the other.
What are the advantages promised to
counterbalance these disadvantages? They are represented to be: 1st, greater
independence in the magistrate; 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
New York Packet: March 21, 1788.
Alexander
Hamilton
To the People of the State of New
York:
THE third ingredient towards
constituting the vigor of the executive authority, is an adequate provision for
its support. It is evident that, without proper attention to this article, the
separation of the executive from the legislative department would be merely
nominal and nugatory. The legislature, with a discretionary power over the
salary and emoluments of the Chief Magistrate, could render him as obsequious
to their will as they might think proper to make him. They might, in most
cases, either reduce him by famine, or tempt him by largesses, to surrender at
discretion his judgment to their inclinations. These expressions, taken in all
the latitude of the terms, would no doubt convey more than is intended. There
are men who could neither be distressed nor won into a sacrifice of their duty;
but this stern virtue is the growth of few soils; and in the main it will be
found that a power over a man's support is a power over his will. If it were
necessary to confirm so plain a truth by facts, examples would not be wanting,
even in this country, of the intimidation or seduction of the Executive by the
terrors or allurements of the pecuniary arrangements of the legislative body.
It is not easy, therefore, to commend
too highly the judicious attention which has been paid to this subject in the
proposed Constitution. It is there provided that "The President of the
United States shall, at stated times, receive for his services a compensation
WHICH SHALL NEITHER BE INCREASED NOR DIMINISHED DURING THE PERIOD FOR WHICH HE
SHALL HAVE BEEN ELECTED; and he SHALL NOT RECEIVE WITHIN THAT PERIOD ANY OTHER
EMOLUMENT from the United States, or any of them." It is impossible to
imagine any provision which would have been more eligible than this. The
legislature, on the appointment of a President, is once for all to declare what
shall be the compensation for his services during the time for which he shall
have been elected. This done, they will have no power to alter it, either by
increase or diminution, till a new period of service by a new election commences.
They can neither weaken his fortitude by operating on his necessities, nor
corrupt his integrity by appealing to his avarice. Neither the Union, nor any
of its members, will be at liberty to give, nor will he be at liberty to
receive, any other emolument than that which may have been determined by the
first act. He can, of course, have no pecuniary inducement to renounce or
desert the independence intended for him by the Constitution.
The last of the requisites to energy,
which have been enumerated, are competent powers. Let us proceed to consider
those which are proposed to be vested in the President of the United States.
The first thing that offers itself to
our observation, is the qualified negative of the President upon the acts or
resolutions of the two houses of the legislature; or, in other words, his power
of returning all bills with objections, to have the effect of preventing their
becoming laws, unless they should afterwards be ratified by two thirds of each
of the component members of the legislative body.
The propensity of the legislative
department to intrude upon the rights, and to absorb the powers, of the other
departments, has been already suggested and repeated; the insufficiency of a
mere parchment delineation of the boundaries of each, has also been remarked
upon; and the necessity of furnishing each with constitutional arms for its own
defense, has been inferred and proved. From these clear and indubitable
principles results the propriety of a negative, either absolute or qualified,
in the Executive, upon the acts of the legislative branches. Without the one or
the other, the former would be absolutely unable to defend himself against the
depredations of the latter. He might gradually be stripped of his authorities
by successive resolutions, or annihilated by a single vote. And in the one mode
or the other, the legislative and executive powers might speedily come to be
blended in the same hands. If even no propensity had ever discovered itself in
the legislative body to invade the rights of the Executive, the rules of just
reasoning and theoretic propriety would of themselves teach us, that the one
ought not to be left to the mercy of the other, but ought to possess a constitutional
and effectual power of self-defense.
But the power in question has a
further use. It not only serves as a shield to the Executive, but it furnishes
an additional security against the inaction of improper laws. It establishes a
salutary check upon the legislative body, calculated to guard the community
against the effects of faction, precipitancy, or of any impulse unfriendly to
the public good, which may happen to influence a majority of that body.
The propriety of a negative has, upon
some occasions, been combated by an observation, that it was not to be presumed
a single man would possess more virtue and wisdom than a number of men; and
that unless this presumption should be entertained, it would be improper to
give the executive magistrate any species of control over the legislative body.
But this observation, when examined,
will appear rather specious than solid. The propriety of the thing does not
turn upon the supposition of superior wisdom or virtue in the Executive, but
upon the supposition that the legislature will not be infallible; that the love
of power may sometimes betray it into a disposition to encroach upon the rights
of other members of the government; that a spirit of faction may sometimes
pervert its deliberations; that impressions of the moment may sometimes hurry
it into measures which itself, on mature reflection, 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
New York Packet: March 25, 1788.
Alexander
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
Independent Journal: March 26, 1788
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
New York Packet: April 1, 1788.
AlexanderHamilton
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 venality
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 venality 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
New York Packet: April 4, 1788.
Alexander
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
May 28, 1788
Alexander
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 everything 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 ||
Part II: The Judiciary Department
May 28, 1788
Alexander
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 I, article 13.
|| Federalist No. 80 ||
The Powers of the Judiciary
June
21, 1788
Alexander
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 well informed mind, as a solid objection to a general principle, which is
calculated to avoid general mischiefs and to obtain general advantages.
PUBLIUS.
|| Federalist No. 81 ||
Part II: Judiciary Continued, and the Distribution of
the Judicial Authority
June 25, 1788
Alexander
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 inconveniences,
it will be safest to declare generally, that the Supreme Court shall possess
appellate jurisdiction both as to law and FACT, and that this jurisdiction
shall be subject to such EXCEPTIONS and regulations as the national legislature
may prescribe. This will enable the government to modify it in such a manner as
will best answer the ends of public justice and security.
This view of the matter, at any rate,
puts it out of all doubt that the supposed ABOLITION of the trial by jury, by
the operation of this provision, is fallacious and untrue. The legislature of
the United States would certainly have full power to provide, that in appeals
to the Supreme Court there should be no re-examination of facts where they had
been tried in the original causes by juries. This would certainly be an
authorized exception; but if, for the reason already intimated, it should be
thought too extensive, it might be qualified with a limitation to such causes
only as are determinable at common law in that mode of trial.
The amount of the observations
hitherto made on the authority of the judicial department is this: that it has
been carefully restricted to those causes which are manifestly proper for the
cognizance of the national judicature; that in the partition of this authority
a very small portion of original jurisdiction has been preserved to the Supreme
Court, and the rest consigned to the subordinate tribunals; that the Supreme
Court will possess an appellate jurisdiction, both as to law and fact, in all
the cases referred to them, both subject to any EXCEPTIONS and REGULATIONS
which may be thought advisable; that this appellate jurisdiction does, in no
case, ABOLISH the trial by jury; and that an ordinary degree of prudence and
integrity in the national councils will insure us solid advantages from the
establishment of the proposed judiciary, without exposing us to any of the
inconveniences which have been predicted from that source.
PUBLIUS.
1.
Article 3, sec. 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 ||
Part III: The Judiciary
July 2, 1788
Alexander
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
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. 8th art. 1st.
|| Federalist No. 83 ||
Part IV: The Judiciary in Relation to
Trial by Jury
July 5, 1788
Alexander
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 well regulated judgment towards it. Whether the
cause should be tried with or without a jury, would depend, in a great number
of cases, on the accidental situation of the court and parties.
But this is not, in my estimation, the
greatest objection. I feel a deep and deliberate conviction that there are many
cases in which the trial by jury is an ineligible one. I think it so
particularly in cases which concern the public peace with foreign nations that
is, in most cases where the question turns wholly on the laws of nations. Of
this nature, among others, are all prize causes. Juries cannot be supposed
competent to investigations that require a thorough knowledge of the laws and
usages of nations; and they will sometimes be under the influence of
impressions which will not suffer them to pay sufficient regard to those
considerations of public policy which ought to guide their inquiries. There would
of course be always danger that the rights of other nations might be infringed
by their decisions, so as to afford occasions of reprisal and war. Though the
proper province of juries be to determine matters of fact, yet in most cases
legal consequences are complicated with fact in such a manner as to render a
separation impracticable.
It will add great weight to this
remark, in relation to prize causes, to mention that the method of determining
them has been thought worthy of particular regulation in various treaties
between different powers of Europe, and that, pursuant to such treaties, they
are determinable in Great Britain, in the last resort, before the king himself,
in his privy council, where the fact, as well as the law, undergoes a
re-examination. This alone demonstrates the impolicy of inserting a fundamental
provision in the Constitution which would make the State systems a standard for
the national government in the article under consideration, and the danger of
encumbering the government with any constitutional provisions the propriety of
which is not indisputable.
My convictions are equally strong that
great advantages result from the separation of the equity from the law
jurisdiction, and that the causes which belong to the former would be improperly
committed to juries. The great and primary use of a court of equity is to give
relief IN EXTRAORDINARY CASES, which are EXCEPTIONS [2] to general rules. To
unite the jurisdiction of such cases with the ordinary jurisdiction, must have
a tendency to unsettle the general rules, and to subject every case that arises
to a SPECIAL determination; while a separation of the one from the other has
the contrary effect of rendering one a sentinel over the other, and of keeping
each within the expedient limits. Besides this, the circumstances that
constitute cases proper for courts of equity are in many instances so nice and
intricate, that they are incompatible with the genius of trials by jury. They
require often such long, deliberate, and critical investigation as would be
impracticable to men called from their occupations, and obliged to decide
before they were permitted to return to them. The simplicity and expedition
which form the distinguishing characters of this mode of trial require that the
matter to be decided should be reduced to some single and obvious point; while
the litigations usual in chancery frequently comprehend a long train of minute
and independent particulars.
It is true that the separation of the
equity from the legal jurisdiction is peculiar to the English system of
jurisprudence: which is the model that has been followed in several of the
States. But it is equally true that the trial by jury has been unknown in every
case in which they have been united. And the separation is essential to the
preservation of that institution in its pristine purity. The nature of a court
of equity will readily permit the extension of its jurisdiction to matters of
law; but it is not a little to be suspected, that the attempt to extend the
jurisdiction of the courts of law to matters of equity will not only be
unproductive of the advantages which may be derived from courts of chancery, on
the plan upon which they are established in this State, but will tend gradually
to change the nature of the courts of law, and to undermine the trial by jury,
by introducing questions too complicated for a decision in that mode.
These appeared to be conclusive
reasons against incorporating the systems of all the States, in the formation
of the national judiciary, according to what may be conjectured to have been
the attempt of the Pennsylvania minority. Let us now examine how far the
proposition of Massachusetts is calculated to remedy the supposed defect.
It is in this form: "In civil
actions between citizens of different States, every issue of fact, arising in
ACTIONS AT COMMON LAW, may be tried by a jury if the parties, or either of them
request it."
This, at best, is a proposition
confined to one description of causes; and the inference is fair, either that
the Massachusetts convention considered that as the only class of federal
causes, in which the trial by jury would be proper; or that if desirous of a
more extensive provision, they found it impracticable to devise one which would
properly answer the end. If the first, the omission of a regulation respecting
so partial an object can never be considered as a material imperfection in the
system. If the last, it affords a strong corroboration of the extreme
difficulty of the thing.
But this is not all: if we advert to
the observations already made respecting the courts that subsist in the several
States of the Union, and the different powers exercised by them, it will appear
that there are no expressions more vague and indeterminate than those which
have been employed to characterize THAT species of causes which it is intended
shall be entitled to a trial by jury. In this State, the boundaries between
actions at common law and actions of equitable jurisdiction, are ascertained in
conformity to the rules which prevail in England upon that subject. In many of
the other States the boundaries are less precise. In some of them every cause
is to be tried in a court of common law, and upon that foundation every action
may be considered as an action at common law, to be determined by a jury, if
the parties, or either of them, choose it. Hence the same irregularity and
confusion would be introduced by a compliance with this proposition, that I
have already noticed as resulting from the regulation proposed by the
Pennsylvania minority. In one State a cause would receive its determination
from a jury, if the parties, or either of them, requested it; but in another
State, a cause exactly similar to the other, must be decided without the
intervention of a jury, because the State judicatories varied as to common-law
jurisdiction.
It is obvious, therefore, that the
Massachusetts proposition, upon this subject cannot operate as a general
regulation, until some uniform plan, with respect to the limits of common-law
and equitable jurisdictions, shall be adopted by the different States. To
devise a plan of that kind is a task arduous in itself, and which it would
require much time and reflection to mature. It would be extremely difficult, if
not impossible, to suggest any general regulation that would be acceptable to
all the States in the Union, or that would perfectly quadrate with the several
State institutions.
It may be asked, Why could not a
reference have been made to the constitution of this State, taking that, which
is allowed by me to be a good one, as a standard for the United States? I
answer that it is not very probable the other States would entertain the same
opinion of our institutions as we do ourselves. It is natural to suppose that
they are hitherto more attached to their own, and that each would struggle for
the preference. If the plan of taking one State as a model for the whole had
been thought of in the convention, it is to be presumed that the adoption of it
in that body would have been rendered difficult by the predilection of each
representation in favor of its own government; and it must be uncertain which
of the States would have been taken as the model. It has been shown that many
of them would be improper ones. And I leave it to conjecture, whether, under
all circumstances, it is most likely that New York, or some other State, would
have been preferred. But admit that a judicious selection could have been
effected in the convention, still there would have been great danger of
jealousy and disgust in the other States, at the partiality which had been
shown to the institutions of one. The enemies of the plan would have been
furnished with a fine pretext for raising a host of local prejudices against
it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment.
To avoid the embarrassments of a
definition of the cases which the trial by jury ought to embrace, it is
sometimes suggested by men of enthusiastic tempers, that a provision might have
been inserted for establishing it in all cases whatsoever. For this I believe,
no precedent is to be found in any member of the Union; and the considerations
which have been stated in discussing the proposition of the minority of
Pennsylvania, must satisfy every sober mind that the establishment of the trial
by jury in ALL cases would have been an unpardonable error in the plan.
In short, the more it is considered
the more arduous will appear the task of fashioning a provision in such a form
as not to express too little to answer the purpose, or too much to be advisable;
or which might not have opened other sources of opposition to the great and
essential object of introducing a firm national government.
I cannot but persuade myself, on the
other hand, that the different lights in which the subject has been placed in
the course of these observations, will go far towards removing in candid minds
the apprehensions they may have entertained on the point. They have tended to
show that the security of liberty is materially concerned only in the trial by
jury in criminal cases, which is provided for in the most ample manner in the
plan of the convention; that even in far the greatest proportion of civil
cases, and those in which the great body of the community is interested, that
mode of trial will remain in its full force, as established in the State
constitutions, untouched and unaffected by the plan of the convention; that it
is in no case abolished [3] by that plan; and that there are great if not
insurmountable difficulties in the way of making any precise and proper provision
for it in a Constitution for the United States.
The best judges of the matter will be
the least anxious for a constitutional establishment of the trial by jury in
civil cases, and will be the most ready to admit that the changes which are
continually happening in the affairs of society may render a different mode of
determining questions of property preferable in many cases in which that mode
of trial now prevails. For my part, I acknowledge myself to be convinced that
even in this State it might be advantageously extended to some cases to which
it does not at present apply, and might as advantageously be abridged in
others. It is conceded by all reasonable men that it ought not to obtain in all
cases. The examples of innovations which contract its ancient limits, as well
in these States as in Great Britain, afford a strong presumption that its
former extent has been found inconvenient, and give room to suppose that future
experience may discover the propriety and utility of other exceptions. I suspect
it to be impossible in the nature of the thing to fix the salutary point at
which the operation of the institution ought to stop, and this is with me a
strong argument for leaving the matter to the discretion of the legislature.
This is now clearly understood to be
the case in Great Britain, and it is equally so in the State of Connecticut;
and yet it may be safely affirmed that more numerous encroachments have been
made upon the trial by jury in this State since the Revolution, though provided
for by a positive article of our constitution, than has happened in the same
time either in Connecticut or Great Britain. It may be added that these
encroachments have generally originated with the men who endeavor to persuade
the people they are the warmest defenders of popular liberty, but who have
rarely suffered constitutional obstacles to arrest them in a favorite career.
The truth is that the general GENIUS of a government is all that can be
substantially relied upon for permanent effects. Particular provisions, though
not altogether useless, have far less virtue and efficacy than are commonly
ascribed to them; and the want of them will never be, with men of sound
discernment, a decisive objection to any plan which exhibits the leading
characters of a good government.
It certainly sounds not a little harsh
and extraordinary to affirm that there is no security for liberty in a
Constitution which expressly establishes the trial by jury in criminal cases,
because it does not do it in civil also; while it is a notorious fact that
Connecticut, which has been always regarded as the most popular State in the
Union, can boast of no constitutional provision for either.
PUBLIUS.
1.
It has been erroneously insinuated. with regard to the court of chancery, that
this court generally tries disputed facts by a jury. The truth is, that
references to a jury in that court rarely happen, and are in no case necessary
but where the validity of a devise of land comes into question.
2.
It is true that the principles by which that relief is governed are now reduced
to a regular system; but it is not the less true that they are in the main
applicable to SPECIAL circumstances, which form exceptions to general rules.
3.
Vide No. 81, in which the supposition of its being abolished by the appellate
jurisdiction in matters of fact being vested in the Supreme Court, is examined
and refuted.
|| Federalist No. 84 ||
Certain General and Miscellaneous Objections
to the Constitution Considered and Answered
July 16, 1788
Alexander
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 Usay the objectorse 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 theirrepresentatives,
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." 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
August 13, 1788
Alexander
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. 'This 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 [2] States.
Here, then, the chances are as thirteen to nine 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 demagoguery, 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."
The Congressional Evolution of the United States of America
For students and teachers of U.S. history, this video features Stanley and Christopher Klos presenting America's Four United Republics Curriculum at the University of Pennsylvania's Wharton School. Filmed in December 2015, this video is an informal recording by an audience member capturing a presentation attended by approximately 200 students, professors, and guests. To explore the full curriculum, [download it here].
Sept. 5, 1774 to July 1, 1776
September 5, 1774 | October 22, 1774 | |
October 22, 1774 | October 26, 1774 | |
May 20, 1775 | May 24, 1775 | |
May 25, 1775 | July 1, 1776 |
Commander-in-Chief United Colonies & States of America
George Washington: June 15, 1775 - July 1, 1776
July 2, 1776 to February 28, 1781
July 2, 1776 | October 29, 1777 | |
November 1, 1777 | December 9, 1778 | |
December 10, 1778 | September 28, 1779 | |
September 29, 1779 | February 28, 1781 |
Commander-in-Chief United States of America
George Washington: July 2, 1776 - February 28, 1781
Presidents of the United States in Congress Assembled
March 1, 1781 to March 3, 1789
March 1, 1781 to March 3, 1789
March 1, 1781 | July 6, 1781 | |
July 10, 1781 | Declined Office | |
July 10, 1781 | November 4, 1781 | |
November 5, 1781 | November 3, 1782 | |
November 4, 1782 | November 2, 1783 | |
November 3, 1783 | June 3, 1784 | |
November 30, 1784 | November 22, 1785 | |
November 23, 1785 | June 5, 1786 | |
June 6, 1786 | February 1, 1787 | |
February 2, 1787 | January 21, 1788 | |
January 22, 1788 | January 21, 1789 |
Commander-in-Chief United States of America
George Washington: March 2, 1781 - December 23, 1783
Articles of Confederation Congress
United States in Congress Assembled (USCA) Sessions
United States in Congress Assembled (USCA) Sessions
USCA | Session Dates | USCA Convene Date | President(s) |
First | 03-01-1781 to 11-04-1781* | 03-02-1781 | |
Second | 11-05-1781 to 11-03-1782 | 11-05-1781 | |
Third | 11-04-1782 to 11-02-1783 | 11-04-1782 | |
Fourth | 11-03-1783 to 10-31-1784 | 11-03-1783 | |
Fifth | 11-01-1784 to 11-06-1785 | 11-29-1784 | |
Sixth | 11-07-1785 to 11-05-1786 | 11-23-1785 | |
Seventh | 11-06-1786 to 11-04-1787 | 02-02-1787 | |
Eighth | 11-05-1787 to 11-02-1788 | 01-21-1788 | |
Ninth | 11-03-1788 to 03-03-1789** | None | None |
* The Articles of Confederation was ratified by the mandated 13th State on February 2, 1781, and the dated adopted by the Continental Congress to commence the new United States in Congress Assembled government was March 1, 1781. The USCA convened under the Articles of Confederation Constitution on March 2, 1781.** On September 14, 1788, the Eighth United States in Congress Assembled resolved that March 4th, 1789, would be commencement date of the Constitution of 1787's federal government thus dissolving the USCA on March 3rd, 1789.
Presidents of the United States of America
Capitals of the United Colonies and States of America
Philadelphia | Sept. 5, 1774 to Oct. 24, 1774 | |
Philadelphia | May 10, 1775 to Dec. 12, 1776 | |
Baltimore | Dec. 20, 1776 to Feb. 27, 1777 | |
Philadelphia | March 4, 1777 to Sept. 18, 1777 | |
Lancaster | September 27, 1777 | |
York | Sept. 30, 1777 to June 27, 1778 | |
Philadelphia | July 2, 1778 to June 21, 1783 | |
Princeton | June 30, 1783 to Nov. 4, 1783 | |
Annapolis | Nov. 26, 1783 to Aug. 19, 1784 | |
Trenton | Nov. 1, 1784 to Dec. 24, 1784 | |
New York City | Jan. 11, 1785 to Nov. 13, 1788 | |
New York City | October 6, 1788 to March 3,1789 | |
New York City | March 3,1789 to August 12, 1790 | |
Philadelphia | Dec. 6,1790 to May 14, 1800 | |
Washington DC | November 17,1800 to Present |
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Edited: Open AI. (2024). ChatGPT [Large language model] - https://chatgpt.com
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