+
Prepared by Mr. J. E. Anderson
With special thanks to Professor Gordon Lloyd, Pepperdine University, whose writings on the Federalist and
AntiFederalist documents have helped countless students understand these important documents more clearly,
&
The Ashbrook Center of Political Science at Ashland University,
whose on-line compilation of primary source documents has become an invaluable resource for teachers across
America.
www.teachingamericanhistory.org
1
1. The Albany Plan of Union – page 3
2. The Virginia Declaration of Rights – page 5
3. Rough Draft of the Declaration of Independence – page 7
4. Final copy of the Declaration of Independence – page 10
5. The Articles of Confederation – page 14
6. Variant Texts of the Virginia Plan – page 19
7. The New Jersey Plan – page 20
8. Qualification for Suffrage – page 22
9. The Constitution of the United States – page 24
10. Amendments to the Constitution of the United States – page 33
11. Introduction to the AntiFederalist – page 40
12. Objections to the Constitution - George Mason – page 43
13. The Virginia Ratifying Convention – Patrick Henry – page 44
14. Dissent of the Minority of the Convention of Pennsylvania – page 52
15. Brutus I – page 54
16. Brutus VI – page 59
17. Brutus XI – page 63
18. Cato V – page 66
19. Cato VII – page 69
20. Centinel I – page 70
21. John DeWitt II – page 75
22. Republicus – page 77
23. Introduction to The Federalist – page 79
24. State House Speech – James Wilson – page 81
25. Federalist No. 1 – page 83
26. Federalist No. 15 – page 85
27. Federalist No. 27 – page 88
28. Federalist No. 28 – page 90
29. Federalist No. 47 – page 92
30. Federalist No. 48 – page 95
31. Federalist No. 51 – page 98
32. Federalist No. 52 – page 100
33. Federalist No. 53 – page 102
34. Federalist No. 54 – page 105
35. Federalist No. 57 – page 107
36. Federalist No. 59 – page 110
37. Federalist No. 67 – page 112
38. Federalist No. 68 – page 114
39. Federalist No. 72 – page 116
40. Federalist No. 78 – page 119
41. Federalist No. 84 – page 123
42. The Northwest Ordinance of 1787 – page 127
43. The Judiciary Act of 1789 – page 131
2
Albany Plan of Union 1754
It is proposed that humble application be made for an act of Parliament of Great Britain, by virtue of which one
general government may be formed in America, including all the said colonies, within and under which government
each colony may retain its present constitution, except in the particulars wherein a change may be directed by the
said act, as hereafter follows.
1. That the said general government be administered by a President-General, to be appointed and supported by the
crown; and a Grand Council, to be chosen by the representatives of the people of the several Colonies met in their
respective assemblies.
2. That within -- months after the passing such act, the House of Representatives that happen to be sitting within that
time, or that shall especially for that purpose convened, may and shall choose members for the Grand Council, in the
following proportion, that is to say,
Massachusetts Bay
New Hampshire
Connecticut
Rhode Island
New York
New Jersey
Pennsylvania
Maryland
Virginia
North Carolina
South Carolina
7
2
5
2
4
3
6
4
7
4
4
-----48
3. -- who shall meet for the first time at the city of Philadelphia, being called by the President-General as soon as
conveniently may be after his appointment.
4. That there shall be a new election of the members of the Grand Council every three years; and, on the death or
resignation of any member, his place should be supplied by a new choice at the next sitting of the Assembly of the
Colony he represented.
5. That after the first three years, when the proportion of money arising out of each Colony to the general treasury
can be known, the number of members to be chosen for each Colony shall, from time to time, in all ensuing
elections, be regulated by that proportion, yet so as that the number to be chosen by any one Province be not more
than seven, nor less than two.
6. That the Grand Council shall meet once in every year, and oftener if occasion require, at such time and place as
they shall adjourn to at the last preceding meeting, or as they shall be called to meet at by the President-General on
any emergency; he having first obtained in writing the consent of seven of the members to such call, and sent duly
and timely notice to the whole.
7. That the Grand Council have power to choose their speaker; and shall neither be dissolved, prorogued, nor
continued sitting longer than six weeks at one time, without their own consent or the special command of the crown.
8. That the members of the Grand Council shall be allowed for their service ten shillings sterling per diem, during
their session and journey to and from the place of meeting; twenty miles to be reckoned a day's journey.
3
9. That the assent of the President-General be requisite to all acts of the Grand Council, and that it be his office and
duty to cause them to be carried into execution.
10. That the President-General, with the advice of the Grand Council, hold or direct all Indian treaties, in which the
general interest of the Colonies may be concerned; and make peace or declare war with Indian nations.
11. That they make such laws as they judge necessary for regulating all Indian trade.
12. That they make all purchases from Indians, for the crown, of lands not now within the bounds of particular
Colonies, or that shall not be within their bounds when some of them are reduced to more convenient dimensions.
13. That they make new settlements on such purchases, by granting lands in the King's name, reserving a quitrent to
the crown for the use of the general treasury.
14. That they make laws for regulating and governing such new settlements, till the crown shall think fit to form
them into particular governments.
15. That they raise and pay soldiers and build forts for the defence of any of the Colonies, and equip vessels of force
to guard the coasts and protect the trade on the ocean, lakes, or great rivers; but they shall not impress men in any
Colony, without the consent of the Legislature.
16. That for these purposes they have power to make laws, and lay and levy such general duties, imposts, or taxes,
as to them shall appear most equal and just (considering the ability and other circumstances of the inhabitants in the
several Colonies), and such as may be collected with the least inconvenience to the people; rather discouraging
luxury, than loading industry with unnecessary burdens.
17. That they may appoint a General Treasurer and Particular Treasurer in each government when necessary; and,
from time to time, may order the sums in the treasuries of each government into the general treasury; or draw on
them for special payments, as they find most convenient.
18. Yet no money to issue but by joint orders of the President-General and Grand Council; except where sums have
been appropriated to particular purposes, and the President-General is previously empowered by an act to draw such
sums.
19. That the general accounts shall be yearly settled and reported to the several Assemblies.
20. That a quorum of the Grand Council, empowered to act with the President-General, do consist of twenty-five
members; among whom there shall be one or more from a majority of the Colonies.
21. That the laws made by them for the purposes aforesaid shall not be repugnant, but, as near as may be, agreeable
to the laws of England, and shall be transmitted to the King in Council for approbation, as soon as may be after their
passing; and if not disapproved within three years after presentation, to remain in force.
22. That, in case of the death of the President-General, the Speaker of the Grand Council for the time being shall
succeed, and be vested with the same powers and authorities, to continue till the King's pleasure be known.
23. That all military commission officers, whether for land or sea service, to act under this general constitution, shall
be nominated by the President-General; but the approbation of the Grand Council is to be obtained, before they
receive their commissions. And all civil officers are to be nominated by the Grand Council, and to receive the
President-General's approbation before they officiate.
4
24. But, in case of vacancy by death or removal of any officer, civil or military, under this constitution, the Governor
of the Province in which such vacancy happens may appoint, till the pleasure of the President-General and Grand
Council can be known.
25. That the particular military as well as civil establishments in each Colony remain in their present state, the
general constitution notwithstanding; and that on sudden emergencies any Colony may defend itself, and lay the
accounts of expense thence arising before the President-General and General Council, who may allow and order
payment of the same, as far as they judge such accounts just and reasonable.
Virginia Declaration of Rights
Drafted by George Mason
1776
Adopted unanimously June 12, 1776 by the Virginia Convention of Delegates
I. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they
enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of
life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and
safety.
II. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and
servants, and at all times amenable to them.
III. That government is, or ought to be, instituted for the common benefit, protection, and security of the people,
nation or community; of all the various modes and forms of government that is best, which is capable of producing
the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration;
and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the
community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as
shall be judged most conducive to the public weal.
5
IV. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community,
but in consideration of public services; which, not being descendible, neither ought the offices of magistrate,
legislator, or judge be hereditary.
V. That the legislative and executive powers of the state should be separate and distinct from the judicative; and, that
the members of the two first may be restrained from oppression by feeling and participating the burthens of the
people, they should, at fixed periods, be reduced to a private station, return into that body from which they were
originally taken, and the vacancies be supplied by frequent, certain, and regular elections in which all, or any part of
the former members, to be again eligible, or ineligible, as the laws shall direct.
VI. That elections of members to serve as representatives of the people in assembly ought to be free; and that all
men, having sufficient evidence of permanent common interest with, and attachment to, the community have the
right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that
of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the
public good.
VII. That all power of suspending laws, or the execution of laws, by any authority without consent of the
representatives of the people is injurious to their rights and ought not to be exercised.
VIII. That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation
to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an
impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled
to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the
judgement of his peers.
IX. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments
inflicted.
X. That general warrants, whereby any officer or messenger may be commanded to search suspected places without
evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly
described and supported by evidence, are grievous and oppressive and ought not to be granted.
XI. That in controversies respecting property and in suits between man and man, the ancient trial by jury is
preferable to any other and ought to be held sacred.
XII. That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by
despotic governments.
XIII. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and
safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and
that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
XIV. That the people have a right to uniform government; and therefore, that no government separate from, or
independent of, the government of Virginia, ought to be erected or established within the limits thereof.
XV. That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to
justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.
XVI. That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by
reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of
religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian
forbearance, love, and charity towards each other.
6
Rough Draft of the Declaration of Independence
Thomas Jefferson
1776
Note: Italicized words or phrases were omitted in the final draft.
Bracketed words or phrases were added to the original draft and appear in the final draft.
A Declaration by the Representatives
of the UNITED STATES OF AMERICA, in
General Congress assembled.
WHEN in the Course of human Events it becomes necessary for one People to dissolve the Political Bands which
have connected them with another, and to assume among the Powers of the Earth the separate & equal Station to
which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires
that they should declare the causes which impel them to the Separation.
WE hold these Truths to be self-evident: that all Men are created equal; that they are endowed by their creator with
inherent and* [certain]† inalienable rights; that among these are life, liberty, & the pursuit of happiness: that to
secure these rights, governments are instituted among men, deriving their just powers from the consent of the
governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to
alter or abolish it, & to institute new government, laying it’s foundation on such principles, & organizing it’s powers
in such form, as to them shall seem most likely to effect their safety & happiness. Prudence indeed will dictate that
governments long established should not be changed for light & transient causes; and accordingly all experience
hath shown that mankind are more disposed to suffer while evils are sufferable, than to right themselves by
abolishing the forms to which they are accustomed. But when a long train of abuses & usurpations begun at a
distinguished period and pursuing invariably the same object, evinces a design to reduce them under absolute
despotism, it is their right, it is their duty to throw off such government, & to provide new guards for their future
security. Such has been the patient sufferance of these colonies; & such is now the necessity which constrains them
to expunge [alter] their former systems of government. The history of the present king of Great Britain is a history of
unremitting [repeated] injuries & usurpations, among which appears no solitary fact to contradict the uniform tenor
of the rest but all have [all having]in direct object the establishment of an absolute tyranny over these states. To
prove this let facts be submitted to a candid world for the truth of which we pledge a faith yet unsullied by falsehood.
HE has refused his assent to laws the most wholesome & necessary for the public good.
HE has forbidden his governors to pass laws of immediate & pressing importance, unless suspended in their
operation till his assent should be obtained; & when so suspended, he has utterly neglected to attend to them.
HE has refused to pass other laws for the accommodation of large districts of people, unless those people would
relinquish the right of representation in the legislature, a right inestimable to them, & formidable to tyrants only.
HE has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their
public records, for the sole purpose of fatiguing them into compliance with his measures.
HE has dissolved representative houses repeatedly & continually for opposing with manly firmness his invasions on
the rights of the people.
7
HE has refused for a long time after such dissolutions to cause others to be elected, whereby the legislative powers,
incapable of annihilation, have returned to the people at large for their exercise, the state remaining in the meantime
exposed to all the dangers of invasion from without & convulsions within.
HE has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization
of foreigners, refusing to pass others to encourage their migrations hither, & raising the conditions of new
appropriations of lands.
HE has suffered [obstructed] the administration of justice totally to cease in some of these states [by] refusing his
assent to laws for establishing judiciary powers.
HE has made our judges dependant on his will alone, for the tenure of their offices, & the amount & paiment of their
salaries.
HE has erected a multitude of new offices by a self assumed power and sent hither swarms of new officers to harass
our people and eat out their substance.
HE has kept among us in times of peace standing armies and ships of war without the consent of our legislatures.
HE has affected to render the military independent of, & superior to the civil power.
HE has combined with others to subject us to a jurisdiction foreign to our constitutions & unacknowledged by our
laws, giving his assent to their acts of pretended legislation:
FOR quartering large bodies of armed troops among us:
FOR protecting them by a mock-trial from punishment for any murders which they should commit on the
inhabitants of these states
FOR cutting off our trade with all parts of the world:
FOR imposing taxes on us without our consent:
FOR depriving us [in many cases] of the benefits of trial by jury
FOR transporting us beyond seas to be tried for pretended offences:
FOR abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary
government, and enlarging it’s boundaries, so as to render it at once an example and fit instrument for introducing
the same absolute rule into these states [colonies]:
FOR taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our
governments:
FOR suspending our own legislatures, & declaring themselves invested with power to legislate for us in allcases
whatsoever.
He has abdicated government here withdrawing his governors, and declaring us out of his allegiance & protection.
[by declaring us out of his protection and waging war against us.]
He has plundered our seas, ravaged our coasts, burnt our towns, & destroyed the lives of our people.
8
He is at this time transporting large armies of foreign mercenaries to compleat the works of death, desolation &
tyranny already begun with circumstanccs of cruelty and perfidy [scarcely paralleled in the most barbarous ages, &
totally] unworthy the head of a civilized nation.
He has constrained our fellow citizens taken captive on the high seas to bear arms against their country, to become
the executioners of their friends & brethren, or to fall themselves by their hands.
He has [excited domestic insurection among us, & has] endeavored to bring on the inhabitants of our frontiers the
merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, &
conditions of existence.
He has incited treasonable insurrections of our fellow-citizens, with the allurements of forfeiture & confiscation of
our property.
He has waged cruel war against human nature itself, violating it’s most sacred rights of life and liberty in the
persons of a distant people who never offended him, captivating & carrying them into slavery in another
hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobium of
INFIDEL Powers, is the warfare of the CHRISTIAN king of Great Britain. Determined to keep open a market where
MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit
or to restrain this execrable commerce. And that this assemblage of horrors might want no fact of distinguished die,
he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived
them, by murdering the people on whom he also obtruded them: thus paying off former crimes committed against the
LIBERTIES of one people, with crimes which he urges them to commit against the LIVES of another.
In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions
have been answered only by repeated injuries.
A prince whose character is thus marked by every act which may define a tyrant is unfit to be the ruler of a [free]
people who mean to be free. Future ages will scarcely believe that the hardiness of one man adventured, within the
short compass of twelve years only, to lay a foundation so broad & so undisguised for tyranny over a people
fostered & fixed in principles of freedom.
Nor have we been wanting in attentions to our British brethren. We have warned them from time to time of attempts
by their legislature to extend a [an unwarrantable] jurisdiction over these our states [us]. We have reminded them of
the circumstances of our emigration & settlement here, no one of which could warrant so strange a pretension: that
these were effected at the expense of our own blood & treasure, unassisted by the wealth or the strength of Great
Britain: that in constituting indeed our several forms of government, we had adopted one common king, thereby
laying a foundation for perpetual league & amity with them: but that submission to their parliament was no part of
our constitution, nor ever in idea, if history may be credited: and, we [have] appealed to their native justice and
magnanimity [and we have conjured them by] as well as to the ties of our common kindred to disavow these
usurpations which were likely to [would inevitably] interrupt our connection and correspondence. They too have
been deaf to the voice of justice & of consanguinity, and when occasions have been given them, by the regular
course of their laws, of removing from their councils the disturbers of our harmony, they have, by their free election,
re-established them in power. At this very time too they are permitting their chief magistrate to send over not only
soldiers of our common blood, but Scotch & foreign mercenaries to invade & destroy us. These facts have given the
last stab to agonizing affection, and manly spirit bids us to renounce forever these unfeeling brethren. We must
endeavor to forget our former love for them, and hold them as we hold the rest of mankind, enemies in war, in peace
friends. We might have been a free and a great people together; but a communication of grandeur & of freedom it
seems is below their dignity. Be it so, since they will have it. The road to happiness & to glory is open to us too. We
will tread it apart from them, and [We must therefore] acquiesce in the necessity which denounces our eternal
separation! [and hold them as we hold the rest of mankind, enemies in war, in peace friends.]
We therefore the representatives of the united States of America in General Congress assebled [appealing to the
Judge of the World for the recititude of our intentions] do in the name & by authority of the good people of these
9
states [colonies] reject and renounce all allegiance & subjections to the kings of Great Britain & all others who may
hereafter claim by, through or under them: we utterly disolve all political connection which may heretofore have
subsisted between us & the people or parliment of Great Britain: and finally we do assert and declare these colonies
to be free and independent states, [solemly Publish and Declare that these United Colonies are, and of Right ought
to be, Free and Independent States; that they are dissolved from allegiance to the British Crown, and that all political
Connection between them and the State of Great-Britain, is and ought to be totally dissolved;] and that as free and
independent states, they have full power to levy war, conclude peace, contract allies, establish commerce, & do all
other acts & things which independent states may of right do.
And for the support of this declaration, [with a firm reliance on the protection of divine providence] we mutually
pledge to each other our lives, our fortunes, & our sacred honor.
Source: Boyd, J.P. et al, editors. The Papers of Thomas Jefferson. Princeton: Princeton University Press, 1950.
Volume I page 426.
Declaration of Independence
July 4, 1776
In Congress
The unanimous Declaration of the thirteen united States of America,
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have
connected them with another, and to assume among the powers of the earth, the separate and equal station to which
the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they
should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these
rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, that
whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to
abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in
such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that
Governments long established should not be changed for light and transient causes; and accordingly all experience
hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by
abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing
invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their
duty, to throw off such Government, and to provide new Guards for their future security. Such has been the patient
sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of
Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all
having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be
submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their
operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
10
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would
relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their
public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of
the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative
powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the
mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for
Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions
of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of
their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out
their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our
laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the
Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary
government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the
same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our
Governments:
11
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases
whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and
tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and
totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to
become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers,
the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and
conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated
Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which
may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts
by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of
our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have
conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt
our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must,
therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of
mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to
the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good
People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be
Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political
connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and
Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and
to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration,
with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our
Fortunes and our sacred Honor.
[Georgia:]
Button Gwinnett
Lyman Hall
George Walton
[North Carolina:]
William Hooper
Joseph Hewes
John Penn
[South Carolina:]
Edward Rutledge
Thomas Heyward, Jr.
12
Thomas Lynch, Jr.
Arthur Middleton
[Maryland:]
Samuel Chase
William Paca
Thomas Stone
Charles Carroll of Carrollton
[Virginia:]
George Wythe
Richard Henry Lee
Thomas Jefferson
Benjamin Harrison
Thomas Nelson, Jr.
Francis Lightfoot Lee
Carter Braxton
[Pennsylvania:]
Robert Morris
Benjamin Rush
Benjamin Franklin
John Morton
George Clymer
James Smith
George Taylor
James Wilson
George Ross
[Delaware:]
Caesar Rodney
George Read
Thomas McKean
[New York:]
William Floyd
Philip Livingston
Francis Lewis
Lewis Morris
[New Jersey:]
Richard Stockton
John Witherspoon
Francis Hopkinson
John Hart
Abraham Clark
[New Hampshire:]
Josiah Bartlett
William Whipple
Matthew Thornton
[Massachusetts:]
John Hancock
13
Samuel Adams
John Adams
Robert Treat Paine
Elbridge Gerry
[Rhode Island:]
Stephen Hopkins
William Ellery
[Connecticut:]
Roger Sherman
Samuel Huntington
William Williams
Oliver Wolcott
Articles of Confederation
November 15, 1777
To all to whom these Presents shall come, we the under signed Delegates of the States affixed to our Names, send
greeting.
14
Whereas the Delegates of the United States of America, in Congress assembled, did, on the 15th day of November,
in the Year of Our Lord One thousand Seven Hundred and Seventy seven, and in the Second Year of the
Independence of America, agree to certain articles of Confederation and perpetual Union between the States of New
Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey,
Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia in the words following,
viz. Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay,
Rhode Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland,
Virginia, North-Carolina, South-Carolina and Georgia.
Article I. The Stile of this confederacy shall be "The United States of America."
Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right,
which is not by this confederation expressly delegated to the United States, in Congress assembled.
Article III. The said states hereby severally enter into a firm league of friendship with each other, for their common
defense, the security of their Liberties, and their mutual and general welfare, binding themselves to assist each other,
against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or
any other pretence whatever.
Article IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different
states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice
excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of
each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of
trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively,
provided that such restriction shall not extend so far as to prevent the removal of property imported into any state, to
any other state, of which the Owner is an inhabitant; provided also that no imposition, duties or restriction shall be
laid by any state, on the property of the United States, or either of them.
If any Person guilty of, or charged with treason, felony, or other high misdemeanor in any state, shall flee from
Justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power, of the
state from which he fled, be delivered up and removed to the state having jurisdiction of his offence. Full faith and
credit shall be given in each of these states to the records, acts and judicial proceedings of the courts and magistrates
of every other state.
Article V. For the more convenient management of the general interests of the United States, delegates shall be
annually appointed in such manner as the legislature of each state shall direct, to meet in Congress on the first
Monday in November, in every year, with a power reserved to each state, to recall its delegates, or any of them, at
any time within the year, and to send others in their stead, for the remainder of the Year.
No state shall be represented in Congress by less than two, nor by more than seven Members; and no person shall be
capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate,
be capable of holding any office under the United States, for which he, or another for his benefit receives any salary,
fees or emolument of any kind.
Each state shall maintain its own delegates in a meeting of the states, and while they act as members of the
committee of the states.
In determining questions in the United States in Congress assembled, each state shall have one vote.
Freedom of speech and debate in Congress shall not be impeached or questioned in any Court, or place out of
Congress, and the members of congress shall be protected in their persons from arrests and imprisonments, during
the time of their going to and from, and attendance on congress, except for treason, felony, or breach of the peace.
15
Article VI. No state, without the Consent of the United States in congress assembled, shall send any embassy to, or
receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King prince or state;
nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any
present, emolument, office or title of any kind whatever from any king, prince or foreign state; nor shall the United
States in congress assembled, or any of them, grant any title of nobility.
No two or more states shall enter into any treaty, confederation or alliance whatever between them, without the
consent of the United States in congress assembled, specifying accurately the purposes for which the same is to be
entered into, and how long it shall continue.
No state shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the
United States in congress assembled, with any king, prince or state, in pursuance of any treaties already proposed by
congress, to the courts of France and Spain.
No vessels of war shall be kept up in time of peace by any state, except such number only, as shall be deemed
necessary by the United States in congress assembled, for the defense of such state, or its trade; nor shall any body
of forces be kept up by any state, in time of peace, except such number only, as in the judgment of the United States,
in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such state; but
every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and
shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper
quantity of arms, ammunition and camp equipage.
No state shall engage in any war without the consent of the United States in congress assembled, unless such state be
actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of
Indians to invade such state, and the danger is so imminent as not to admit of a delay till the United States in
congress assembled can be consulted: nor shall any state grant commissions to any ships or vessels of war, nor
letters of marque or reprisal, except it be after a declaration of war by the United States in congress assembled, and
then only against the kingdom or state and the subjects thereof, against which war has been so declared, and under
such regulations as shall be established by the United States in congress assembled, unless such state be infested by
pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall
continue, or until the United States in congress assembled, shall determine otherwise.
Article VII. When land-forces are raised by any state for the common defense, all officers of or under the rank of
colonel, shall be appointed by the legislature of each state respectively, by whom such forces shall be raised, or in
such manner as such state shall direct, and all vacancies shall be filled up by the State which first made the
appointment.
Article VIII. All charges of war, and all other expenses that shall be incurred for the common defense or general
welfare, and allowed by the United States in congress assembled, shall be defrayed out of a common treasury, which
shall be supplied by the several states in proportion to the value of all land within each state, granted to or surveyed
for any Person, as such land and the buildings and improvements thereon shall be estimated according to such mode
as the United States in congress assembled, shall from time to time direct and appoint.
The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the
several states within the time agreed upon by the United States in Congress assembled.
Article IX. The United States in congress assembled, shall have the sole and exclusive right and power of
determining on peace and war, except in the cases mentioned in the sixth article—of sending and receiving
ambassadors—entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the
legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as
their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or
commodities, whatsoever—of establishing rules for deciding in all cases, what captures on land or water shall be
legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or
appropriated—of granting letters of marque and reprisal in times of peace—appointing courts for the trial of piracies
16
and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all
cases of captures, provided that no member of congress shall be appointed a judge of any of the said courts.
The United States in congress assembled shall also be the last resort on appeal in all disputes and differences now
subsisting or that hereafter may arise between two or more states concerning boundary, jurisdiction or any other
cause whatever; which authority shall always be exercised in the manner following. Whenever the legislative or
executive authority or lawful agent of any state in controversy with another shall present a petition to congress
stating the matter in question and praying for a hearing, notice thereof shall be given by order of congress to the
legislative or executive authority of the other state in controversy, and a day assigned for the appearance of the
parties by their lawful agents, who shall then be directed to appoint by joint consent, commissioners or judges to
constitute a court for hearing and determining the matter in question: but if they cannot agree, congress shall name
three persons out of each of the United States, and from the list of such persons each party shall alternately strike out
one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than
seven, nor more than nine names as congress shall direct, shall in the presence of congress be drawn out by lot, and
the persons whose names shall be so drawn or any five of them, shall be commissioners or judges, to hear and
finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the
determination: and if either party shall neglect to attend at the day appointed, without showing reasons, which
congress shall judge sufficient, or being present shall refuse to strike, the congress shall proceed to nominate three
persons out of each state, and the secretary of congress shall strike in behalf of such party absent or refusing; and the
judgment and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive;
and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or
cause, the court shall nevertheless proceed to pronounce sentence, or judgment, which shall in like manner be final
and decisive, the judgment or sentence and other proceedings being in either case transmitted to congress, and
lodged among the acts of congress for the security of the parties concerned: provided that every commissioner,
before he sits in judgment, shall take an oath to be administered by one of the judges of the supreme or superior
court of the state, where the cause shall be tried, "well and truly to hear and determine the matter in question,
according to the best of his judgment, without favor, affection or hope of reward:" provided also, that no state shall
be deprived of territory for the benefit of the United States.
All controversies concerning the private right of soil claimed under different grants of two or more states, whose
jurisdictions as they may respect such lands, and the states which passed such grants are adjusted, the said grants or
either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall
on the petition of either party to the congress of the United States, be finally determined as near as may be in the
same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different states.
The United States in congress assembled shall also have the sole and exclusive right and power of regulating the
alloy and value of coin struck by their own authority, or by that of the respective states—fixing the standard of
weights and measures throughout the United States—regulating the trade and managing all affairs with the Indians,
not members of any of the states provided that the legislative right of any state within its own limits be not infringed
or violated—establishing or regulating post-offices from one state to another, throughout all the United States, and
exacting such postage on the papers passing thro—the same as may be requisite to defray the expenses of the said
office—appointing all officers of the land forces, in the service of the United States, excepting regimental officers—
appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United
States—making rules for the government and regulation of the said land and naval forces, and directing their
operations.
The United States in congress assembled shall have authority to appoint a committee, to sit in the recess of congress,
to be denominated "A Committee of the States," and to consist of one delegate from each state; and to appoint such
other committees and civil officers as may be necessary for managing the general affairs of the United States under
their direction—to appoint one of their number to preside, provided that no person be allowed to serve in the office
of president more than one year in any term of three years; to ascertain the necessary sums of money to be raised for
the service of the United States, and to appropriate and apply the same for defraying the public expenses—to borrow
money, or emit bills on the credit of the United States, transmitting every half year to the respective states an
account of the sums of money so borrowed or emitted,—to build and equip a navy—to agree upon the number of
land forces, and to make requisitions from each state for its quota, in proportion to the number of white inhabitants
17
in such state; which requisition shall be binding, and thereupon the legislature of each state shall appoint the
regimental officers, raise the men and clothe, arm and equip them in a soldier like manner, at the expense of the
United States; and the officers and men so clothed, armed and equipped shall march to the place appointed, and
within the time agreed on by the United States in congress assembled: But if the United States in congress
assembled shall, on consideration of circumstances judge proper that any state should not raise men, or should raise
a smaller number than its quota, and that any other state should raise a greater number of men than the quota thereof,
such extra number shall be raised, officered, clothed, armed and equipped in the same manner as the quota of such
state, unless the legislature of such state shall judge that such extra number cannot be safely spared out of the same,
in which case they shall raise officer, clothe, arm and equip as many of such extra number as they judge can be
safely spared. And the officers and men so clothed, armed and equipped, shall march to the place appointed, and
within the time agreed on by the United States in congress assembled.
The United States in congress assembled shall never engage in a war, nor grant letters of marque and reprisal in time
of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the
sums and expenses necessary for the defense and welfare of the United States, or any of them, nor emit bills, nor
borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of
war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of
the army or navy, unless nine states assent to the same: nor shall a question on any other point, except for adjourning
from day to day be determined, unless by the votes of a majority of the United States in congress assembled.
The congress of the United States shall have power to adjourn to any time within the year, and to any place within
the United States, so that no period of adjournment be for a longer duration than the space of six Months, and shall
publish the Journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military
operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each state on any question
shall be entered on the Journal, when it is desired by any delegate; and the delegates of a state, or any of them, at his
or their request shall be furnished with a transcript of the said Journal, except such parts as are above excepted, to
lay before the legislatures of the several states.
Article X. The committee of the states, or any nine of them, shall be authorized to execute, in the recess of congress,
such of the powers of congress as the United States in congress assembled, by the consent of nine states, shall from
time to time think expedient to vest them with; provided that no power be delegated to the said committee, for the
exercise of which, by the articles of confederation, the voice of nine states in the congress of the United States
assembled is requisite.
Article XI. Canada acceding to this confederation, and joining in the measures of the United States, shall be
admitted into, and entitled to all the advantages of this union: but no other colony shall be admitted into the same,
unless such admission be agreed to by nine states.
Article XII. All bills of credit emitted, monies borrowed and debt contracted by, or under the authority of congress,
before the assembling of the United States, in pursuance of the present confederation, shall be deemed and
considered as a charge against the United States, for payment and satisfaction whereof the said United States, and
the public faith are hereby solemnly pledged.
Article XIII. Every state shall abide by the determinations of the United States in congress assembled, on all
questions which by this confederation are submitted to them. And the Articles of this confederation shall be
inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be
made in any of them; unless such alteration be agreed to in a congress of the United States, and be afterwards
confirmed by the legislatures of every state.
And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we
respectively represent in congress, to approve of, and to authorize us to ratify the said articles of confederation and
perpetual union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for
that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify
and confirm each and every of the said articles of confederation and perpetual union, and all and singular the matters
18
and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents,
that they shall abide by the determinations of the United States in congress assembled, on all questions, which by the
said confederation are submitted to them. And that the articles thereof shall be inviolably observed by the states we
respectively represent, and that the union shall be perpetual. In Witness whereof we have hereunto set our hands in
Congress. Done at Philadelphia in the state of Pennsylvania the ninth day of July, in the Year of our Lord one
Thousand seven Hundred and Seventy-eight, and in the third year of the independence of America.
Variant Texts of the Virginia Plan
May 29, 1787
Presented by Edmund Randolph to the Federal Convention
Text B
1. Resolved, That the articles of the confederation ought to be so corrected and enlarged, as to accomplish the
objects proposed by their institution, namely, common defence, security of liberty, and general welfare.
2. Resolved, therefore, that the right of suffrage, in the national legislature, ought to be proportioned to the quotas of
contribution, or to the number of free inhabitants, as the one or the other may seem best, in different cases.
3. Resolved, That the national legislature ought to consist of two branches.
4. Resolved, That the members of the first branch of the national legislature ought to be elected by the people of the
several States, every _______ for the term of ______ to be of the age of years at least; to receive liberal stipends, by
which they may be compensated for the devotion of their time to public service; to be ineligible to any office
established by a particular State, or under the authority of the United States (except those peculiarly belonging to the
functions of the first branch) during the term of service and for the space of ______ after its expiration; to be
incapable of reselection for the space of _____ after the expiration of their term of service,; and to be subject to
recall.
5. Resolved, That the members of the second branch of the national legislature ought to be elected by those of the
first, out of a proper number of persons nominated by the individual legislatures; to be of ______ the age of years, at
least; to hold their offices for a term sufficient to ensure their independency; to receive liberal stipends, by which
they may be compensated for the devotion of their time to the public service; and to be ineligible to any office
established by a particular State, or under the authority of the United States, (except those peculiarly belonging to
the functions of the second branch) during the term of service; and for the space of ______ after the expiration
thereof.
6. Resolved, That each branch ought to possess the right of originating acts; that the national legislature ought to be
empowered to enjoy the legislative right vested in congress, by the confederation; and moreover to legislate in all
cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted
by the exercise of individual legislation; to negative all laws passed by the several States, contravening in the
opinion of the national legislature, the articles of union, or any treaty subsisting under the authority of the union; and
to call forth the force of the union against any member of the union failing to fulfill its duty under the articles
thereof.
7. Resolved, That a national executive be instituted, to be chosen by the national legislature for the term of _______
years, to receive punctually, at stated times, a fixed compensation for the services rendered, in which no increase or
diminution shall be made, so as to affect the magistracy existing at the time of the increase or diminution; to be
ineligible a second time; and that, besides a general authority to execute the national laws, it ought to enjoy the
executive rights vested in congress by the confederation.
19
8. Resolved, That the executive, and a convenient number of the national judiciary, ought to compose a council of
revision, with authority to examine every act of the national legislature, before it shall operate, and every act of a
particular legislature before a negative thereon shall be final; and that the dissent of the said council shall amount to
a rejection, unless the act of the national legislature be again passed, or that of a particular legislature be again
negatived by _____ of the members of each branch.
9. Resolved, That a national judiciary be established to hold their offices during good behavior, and to receive
punctually, at stated times, fixed compensations for their services, in which no increase or diminution shall be made,
so as to affect the person actually in office at the time of such increase or diminution— That the jurisdiction of the
inferior tribunals shall be, to hear and determine, in the first instance, and of the supreme tribunal to hear and
determine, in the dernier resort, all piracies and felonies on the high seas; captures from an enemy; cases in which
foreigners, or citizens of other States, applying to such jurisdictions, may be interested, or which respect the
collection of the national revenue; impeachments of any national officer; and questions which involve the national
peace or harmony.
10. Resolved, That provision ought to be made for the admission of States, lawfully arising within the limits of the
United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a
number of voices in the national legislature less than the whole.
11. Resolved, That a republican government, and the territory of each State (except in the instance of a voluntary
junction of government and territory) ought to be guaranteed by the United States to each State.
12. Resolved, That provision ought to be made for the continuance of a congress, and their authorities and privileges,
until a given day, after the reform of the articles of union shall be adopted, and for the completion of all their
engagements.
13. That provision ought to be made for the amendment of the articles of union whensoever it shall seem necessary;
and that the assent of the national legislature ought not to be required thereto.
14. Resolved, That the legislative, executive, and judiciary powers within the several States, ought to be bound by
oath to support the articles of union.
15. Resolved, That the amendments, which shall be offered to the confederation by the convention, ought, at a
proper time or times, after the approbation of congress, to be submitted to an assembly or assemblies of
representatives, recommended by the several legislatures, to be expressly chosen by the people to consider and
decide thereon.
The New Jersey Plan
June 15,
[BI The New Jersey Plan, Friday, 15 June 1787
Resd that the articles of Confederation ought to be so revised, corrected & enlarged, as to render the federal
Constitution adequate to the exigences of Government, & the preservation of the Union. 2.
Resd that in addition to the powers vested in the U. Slates in Congress, by the present existing articles of
Confederation, they be authorized to pass acts for raising a revenue, by levying a duty or duties on all goods or
merchandizes of foreign growth or manufacture, imported into any part of the U. States, by Stamps on paper, vellum
20
or parchment, and by a postage on all letters or packages passing through the general post-office. to be applied to
such federal purposes as they shall deem proper & expedient; to make rules & regulations for the collection thereof;
and the same from time to time, to alter & amend in such manner as they shall think proper: to pass Acts for the
regulation of trade & commerce as well with foreign nations as with each other: provided that all punishments, fines,
forfeitures & penalties to be incurred for contravening such acts rules and regulations shall be adjudged by the
Common law Judiciaries of the State in which any offence contrary to the true intent & meaning of such Acts rules
& regulations shall have been committed or perpetrated, with liberty of commencing in the first instance all suites &
prosecutions for that purpose in the superior common law Judiciary in such State, subject nevertheless, for the
correction of all errors, both in law & fact in rendering Judgment, to an appeal to the Judiciary of the U. States. 3.
Resd that whenever requisitions shall be necessary, instead of the rule for making requisitions mentioned in the
articles of Confederation, the United States in Congs he authorized to make such requisitions in proportion to the
whole number of white & other free citizens & inhabitants of every age sex and condition including those bound to
servitude for a term of years & three fifths of all other persons not comprehended in the foregoing description,
except Indians not paying taxes; that if such requisitions be not complied with, in the time specified therein, to direct
the collection thereof in the non complying States & for that purpose to devise and pass acts directing & authorizing
the same; provided that none of the powers hereby vested in the U. States in Congs shall be exercised without the
consent of at least States, and in that proportion if the number of Confederated Slates should hereafter be increased
or diminished. 4.
Resd that the U. States in Congs he authorized to elect a federal Executive to consist of persons, to continue in office
for the term of years, to receive punctually at stated times a fixed compensation for their services, in which no
increase or diminution shall be made so as to affect the persons composing the Executive at the time of such
increase or diminution, to be paid out of the federal treasury; to be incapable of holding any other office or
appointment during their time of service and for years thereafter; to be ineligible a second time, & removeable by
Congs on application by a majority of the Executives of the several States; that the Executives besides their general
authority to execute the federal acts ought to appoint all federal officers not otherwise provided for, & to direct all
military operations; provided that none of the persons composing the federal Executive shall on any occasion take
command of any troops, so as personally to conduct any enterprise as General or in other capacity. 5.
Resd that a federal Judiciary be established to consist of a supreme Tribunal the Judges of which to be appointed by
the Executive, & to hold their offices during good behaviour, to receive punctually at stated times a fixed
compensation for their services in which no increase or diminution shall be made, so as to affect the persons actually
in office at the time of such increases or diminution; that the Judiciary so established shall have authority to hear &
determine in the first instance on all impeachments of federal officers, & by way of appeal in the dernier resort in all
cases touching the rights of Ambassadors, in all cases of captures from an enemy, in all cases of piracies & felonies
on the high seas, in all cases in which foreigners may be interested, in the construction of any treaty or treaties, or
which may arise on any of the Acts for regulation of trade, or the collection of the federal Revenue: that none of the
Judiciary shall during the time they remain in Office be capable of receiving or holding any other office or
appointment during their time of service, or for thereafter. 6.
Resd that all Acts of the U. States in Congs made by virtue & in pursuance of the powers hereby & by the articles of
Confederation vested in them, and all Treaties made & ratified under the authority of the U. States shall be the
supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their
Citizens, and that the Judiciary of the several States shall be bound thereby in their decisions, any thing in the
respective laws of the Individual States to the contrary notwithstanding; and that if any State, or any body of men in
any State shall oppose or prevent ye(footnote6) 6carrying into execution such acts or treaties, the federal Executive
shall be authorized to call forth ye power of the Confederated States, or so much thereof as may be necessary to
enforce and compel an obedience to such Acts, or an observance of such Treaties. 7.
Resd that provision be made for the admission of new States into the Union. 8.
Resd the rule for naturalization ought to be the same in every State. 9.
21
Resd that a Citizen of one State committing an offense in another State of the Union, shall be deemed guilty of the
same offense as if it had been committed by a Citizen of the State in which the offense was committed.
Qualifications for Suffrage
Monday, August 6
IN CONVENTION
Mr. WILSON. This part of the Report was well considered by the Committee, and he did not think it could be
changed for the better. It was difficult to form any uniform rule of qualifications for all the States. Unnecessary
innovations he thought too should be avoided. It would be very hard & disagreeable for the same persons at the
same time, to vote for representatives in the State Legislature and to be excluded from a vote for those in the Natl.
Legislature.
Mr. Govr. MORRIS. Such a hardship would be neither great nor novel. The people are accustomed to it and not
dissatisfied with it, in several of the States. In some the qualifications are different for the choice of the Govr. & 17
Representatives; In others for different Houses of the Legislature. Another objection agst. the clause as it stands is
that it makes the qualifications of the Natl. Legislature depend on the will of the States, which he thought not proper.
Mr. ELSEWORTH. thought the qualifications of the electors stood on the most proper footing. The right of suffrage
was a tender point, and strongly guarded by most of the State Constitutions. The people will not readily subscribe to
the Natl. Constitution if it should subject them to be disfranchised. The States are the best Judges of the
circumstances & temper of their own people.
Col. MASON. The force of habit is certainly not attended to by those gentlemen who wish for innovations on this
point. Eight or nine States have extended the right of suffrage beyond the freeholders, what will the people there say,
if they should be disfranchised. A power to alter the qualifications would be a dangerous power in the hands of the
Legislature.
Mr. BUTLER. There is no right of which the people are more jealous than that of suffrage. Abridgments of it tend to
the same revolution as in Holland where they have at length thrown all power into the hands of the Senates, who fill
up vacancies themselves, and form a rank aristocracy.
Mr. DICKINSON. had a very different idea of the tendency of vesting the right of suffrage in the freeholders of the
Country. He considered them as the best guardians of liberty; And the restriction of the right to them as a necessary
defence agst. the dangerous influence of those multitudes without property & without principle with which our
Country like all others, will in time abound. As to the unpopularity of the innovation it was in his opinion
chemirical. The great mass of our Citizens is composed at this time of freeholders, and will be pleased with it.
Mr. ELSEWORTH. How shall the freehold be defined? Ought not every man who pays a tax, to vote for the
representative who is to levy & dispose of his money? Shall the wealthy merchants & manufacturers, who will bear
a full share of the public burdens be not allowed a voice in the imposition of them- taxation & representation ought
to go together.
Mr. Govr. MORRIS. He had long learned not to be the dupe of words. The sound of Aristocracy therefore had no
effect on18 him. It was the thing, not the name, to which he was opposed, and one of his principal objections to the
Constitution as it is now before us, is that it threatens this19 Country with an Aristocracy. The aristocracy will grow
out of the House of Representatives. Give the votes to people who have no property, and they will sell them to the
22
rich who will be able to buy them. We should not confine our attention to the present moment. The time is not
distant when this Country will abound with mechanics & manufacturers 20 who will receive their bread from their
employers. Will such men be the secure & faithful Guardians of liberty? Will they be the impregnable barrier agst.
aristocracy? -He was as little duped by the association of the words "taxation & Representation." The man who does
not give his vote freely is not represented. It is the man who dictates the vote. Children do not vote. Why? because
they want prudence, because they have no will of their own. The ignorant & the dependent can be as little trusted
with the public interest. He did not conceive the difficulty of defining "freeholders" to be insuperable. Still less that
the restriction could be unpopular. 9/10 of the people are at present freeholders and these will certainly be pleased
with it. As to Merchts. &c. if they have wealth & value the right they can acquire it. If not they don't deserve it.
Col. MASON. We all feel too strongly the remains of antient prejudices, and view things too much through a British
medium. A Freehold is the qualification in England, & hence it is imagined to be the only proper one. The true idea
in his opinion was that every man having evidence of attachment to & permanent common interest with the Society
ought to share in all its rights & privileges. Was this qualification restrained to freeholders? Does no other kind of
property but land evidence a common interest in the proprietor? does nothing besides property mark a permanent
attachment. Ought the merchant, the monied man, the parent of a number of children whose fortunes are to be
pursued in his own Country, to be viewed as suspicious characters, and unworthy to be trusted with the common
rights of their fellow Citizens
Mr. MADISON. the right of suffrage is certainly one of the fundamental articles of republican Government, and
ought not to be left to be regulated by the Legislature. A gradual abridgment of this right has been the mode in
which Aristocracies have been built on the ruins of popular forms. Whether the Constitutional qualification ought to
be a freehold, would with him depend much on the probable reception such a change would meet with in21 States
where the right was now exercised by every description of people. In several of the States a freehold was now the
qualification. Viewing the subject in its merits alone, the freeholders of the Country would be the safest depositories
of Republican liberty. In future times a great majority of the people will not only be without landed, but any other
sort of, property. These will either combine under the influence of their common situation; in which case, the rights
of property & the public liberty, will not be secure in their hands: or which22 is more probable, they will become the
tools of opulence & ambition, in which case there will be equal danger on another side. The example of England had
been misconceived [by Col Mason]. A very small proportion of the Representatives are there chosen by freeholders.
The greatest part are chosen by the Cities & boroughs, in many of which the qualification of suffrage is as low as it
in any of the U. S. and it was in the boroughs & Cities rather than the Counties, that bribery most prevailed, & the
influence of the Crown on elections was most dangerously exerted.23
Docr. FRANKLIN. It is of great consequence that we shd. not depress the virtue & public spirit of our common
people; of which they displayed a great deal during the war, and which contributed principally to the favorable issue
of it. He related the honorable refusal of the American seamen who were carried in great numbers into the British
Prisons during the war, to redeem themselves from misery or to seek their fortunes, by entering on board the Ships
of the Enemies to their Country; contrasting their patriotism with a contemporary instance in which the British
seamen made prisoners by the Americans, readily entered on the ships of the latter on being promised a share of the
prizes that might be made out of their own Country. This proceeded he said from the different manner in which the
common people were treated in America & G. Britain. He did not think that the elected had any right in any case to
narrow the privileges of the electors. He quoted as arbitrary the British Statute setting forth the danger of tumultuous
meetings, and under that pretext narrowing the right of suffrage to persons having freeholds of a certain value;
observing that this Statute was soon followed by another under the succeeding Parliamt. subjecting the people who
had no votes to peculiar labors & hardships. He was persuaded also that such a restriction as was proposed would
give great uneasiness in the populous States. The sons of a substantial farmer, not being themselves freeholders,
would not be pleased at being disfranchised, and there are a great many persons of the description.
Mr. MERCER. The Constitution is objectionable in many points, but in none more than the present. He objected to
the footing on which the qualification was put, but particularly to the mode of election by the people. The people can
not know & judge of the characters of Candidates. The worse possible choice will be made. He quoted the case of
the Senate in Virga. as an example in point. The people in Towns can unite their votes in favor of one favorite; & by
that means always prevail over the people of the Country, who being dispersed will scatter their votes among a
variety of candidates.
23
Mr. RUTLIDGE thought the idea of restraining the right of suffrage to the freeholders a very unadvised one. It
would create division among the people & make enemies of all those who should be excluded.
On the question for striking out as moved by Mr. Govr. Morris, from the word "qualifications" to the end of the III
article. N. H. no. Mas. no. Ct. no. Pa. no. Del. ay. Md. divd. Va. no. N. C. no. S. C. no. Geo. not prest.24
Adjourned
Friday, August 10
IN CONVENTION
Art. VI. Sect. 2.1, 2 taken up.
Mr. PINKNEY. The Committee as he had conceived were instructed to report the proper qualifications of property
for the members of the Natl. Legislature; instead of which they have referred the task to the Natl. Legislature itself.
Should it be left on this footing, the first Legislature will meet without any particular qualifications of property: and
if it should happen to consist of rich men they might fix such such qualifications as may be too favorable to the rich;
if of poor men, an opposite extreme might be run into. He was opposed to the establishment of an undue aristocratic
influence in the Constitution but he thought it essential that the members of the Legislature, the Executive, and the
Judges, should be possessed of competent property to make them independent & respectable. It was prudent when
such great powers were to be trusted to connect the tie of property with that of reputation in securing a faithful
administration. The Legislature would have the fate of the Nation put into their hands. The President would also
have a very great influence on it. The Judges would have not only3 important causes between Citizen & Citizen but
also, where foreigners are concerned. They will even be the Umpires between the U. States and individual States as
well as between one State & another. Were he to fix the quantum of property which should be required, he should
not think of less than one hundred thousand dollars for the President, half of that sum for each of the Judges, and in
like proportion for the members of the Natl. Legislature. He would however leave the sums blank. His motion was
that the President of the U. S. the Judges, and members of the Legislature should be required to swear that they were
respectively possessed of a cleared4 unincumbered Estate to the amount of ----- in the case of the President &c &c.
Mr. RUTLIDGE seconded the motion; observing that the Committee had reported no qualifications because they
could not agree on any among themselves, being embarrassed by the danger on one side of displeasing the people by
making them high, and on the other of rendering them nugatory by making them low.
Mr. ELSEWORTH. The different circumstances of different parts of the U. S. and the probable difference between
the present and future circumstances of the whole, render it improper to have either uniform or fixed qualifications.
Make them so high as to be useful in the S. States, and they will be inapplicable to the E. States. Suit them to the
latter, and they will serve no purpose in the former. In like manner what may be accomodated to the existing State of
things among us, may be very inconvenient in some future state of them. He thought for these reasons that it was
better to leave this matter to the Legislative discretion than to attempt a provision for it in the Constitution.
Doctr. FRANKLIN expressed his dislike of5 every thing that tended to debase the spirit of the common people. If
honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true
that the possession of property increased the desire of more property. Some of the greatest rogues he was ever
acquainted with, were the richest rogues. We should remember the character which the Scripture requires in Rulers,
that they should be men hating covetousness. This Constitution will be much read and attended to in Europe, and if
it should betray a great partiality to the rich, will not only hurt us in the esteem of the most liberal and enlightened
men there, but discourage the common people from removing into6 this Country.
The Motion of Mr. Pinkney was rejected by so general a no, that the States were not called.
24
Constitution of the United States
1787
Note: Text in hypertext has been amended or superseded.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic
Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Article. I.
Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall
consist of a Senate and House of Representatives.
Section. 2. The House of Representatives shall be composed of Members chosen every second Year by the People
of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most
numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven
Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall
be chosen.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this
Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free
Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all
other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of
the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The
Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one
Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse
three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New
Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five,
and Georgia three.
When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of
Election to fill such Vacancies.
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of
Impeachment.
Section. 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the
Legislature thereof, for six Years; and each Senator shall have one Vote.
Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as
may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the
second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the
sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or
otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary
Appointments until the next Meeting of the Legislature,which shall then fill such Vacancies.
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of
the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
25
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be
equally divided.
The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President,
or when he shall exercise the Office of President of the United States.
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath
or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall
be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to
hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall
nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Section. 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed
in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations,
except as to the Places of chusing Senators.
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in
December, unless they shall by Law appoint a different Day.
Section. 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a
Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and
may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each
House may provide.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the
Concurrence of two thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as
may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question
shall, at the Desire of one fifth of those Present, be entered on the Journal.
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three
days, nor to any other Place than that in which the two Houses shall be sitting.
Section. 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by
Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach
of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in
going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in
any other Place.
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under
the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been
encreased during such time; and no Person holding any Office under the United States, shall be a Member of either
House during his Continuance in Office.
Section. 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose
or concur with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be
presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his
Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal,
26
and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it
shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if
approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be
determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the
Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays
excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it,
unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be
necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before
the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds
of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts
and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises
shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the
United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be
employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers,
and the Authority of training the Militia according to the discipline prescribed by Congress;
27
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as
may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the
United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State
in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful
Buildings; —And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all
other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer
thereof.
Section. 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to
admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or
duty may be imposed on such Importation, not exceeding ten dollars for each Person.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before
directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of
another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular
Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under
them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind
whatever, from any King, Prince, or foreign State.
Section. 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal;
coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any
Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what
may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid
by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall
be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of
Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless
actually invaded, or in such imminent Danger as will not admit of delay.
Article. II.
Section. 1. The executive Power shall be vested in a President of the United States of America. He shall hold his
Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected,
as follows:
28
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the
whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or
Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not
be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of
the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the
Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the
Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.
The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole
Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of
Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no
Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the
President. But in chusing the President, the Votes shall be taken by States, the Representation from each State
having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States,
and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the
Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain
two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes;
which Day shall be the same throughout the United States.
No Persons except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this
Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall
not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the
Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law
provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring
what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a
President shall be elected.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be 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.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly
swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my
Ability, preserve, protect and defend the Constitution of the United States."
Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the
Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in
writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of
their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United
States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of
the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:
but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments.
29
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting
Commissions which shall expire at the End of their next Session.
Section. 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to
their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions,
convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of
Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other
public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of
the United States.
Section. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article. III.
Section. 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts
as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a
Compensation, which shall not be diminished during their Continuance in Office.
Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws
of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting
Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to
Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between
a State and Citizens of another State;— between Citizens of different States;—between Citizens of the same State
claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States,
Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,
the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall
have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall
be held in the State where the said Crimes shall have been committed; but when not committed within any State, the
Trial shall be at such Place or Places as the Congress may by Law have directed.
Section. 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their
Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work
Corruption of Blood, or Forfeiture except during the Life of the Person attained.
Article. IV.
Section. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of
every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and
Proceedings shall be proved, and the Effect thereof.
Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several
States.
30
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in
another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be
removed to the State having Jurisdiction of the Crime.
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in
Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered
up on Claim of the Party to whom such Service or Labour may be due.
Section. 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected
within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of
States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or
other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice
any Claims of the United States, or of any particular State.
Section. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and
shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the
Legislature cannot be convened) against domestic Violence.
Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this
Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for
proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution,
when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as
the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which
may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth
Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal
Suffrage in the Senate.
Article. VI.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid
against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all
executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or
Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office
or public Trust under the United States.
Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution
between the States so ratifying the Same.
31
Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year
of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America
the Twelfth In Witness whereof We have hereunto subscribed our Names,
Go. Washington—
Presidt. and deputy from Virginia
New Hampshire
John Langdon
Nicholas Gilman
Massachusetts
Nathaniel Gorham
Rufus King
Connecticut
Wm. Saml. Johnson
Roger Sherman
New York
Alexander Hamilton
New Jersery
Wil: Livingston
David Brearley
Wm. Paterson
Jona: Dayton
Pennsylvania
B Franklin
Thomas Mifflin
Robt. Morris
Geo. Clymer
Thos. FitzSimons
Jared Ingersoll
James Wilson
Gouv Morris
Delaware
Geo: Read
Gunning Bedford jun
John Dickinson
Richard Bassett
Jaco: Broom
Maryland
James McHenry
Dan of St Thos. Jenifer
Danl. Carroll
32
Virginia
John Blair—
James Madison Jr.
North Carolina
Wm. Blount
Richd. Dobbs Spaight
Hu Williamson
South Carolina
J. Rutledge
Charles Cotesworth Pinckney
Charles Pinckney
Pierce Butler
Georgia
William Few
Abr Baldwin
Attest William Jackson Secretary
Amendments to the Constitution
of the United States of America
1791Note: Text in hypertext has been amended or superseded.
Amendment I.
Ratified December 15, 1791
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
Amendment II.
Ratified December 15, 1791
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.
Amendment III.
Ratified December 15, 1791
33
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war,
but in a manner to be prescribed by law.
Amendment IV.
Ratified December 15, 1791
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V.
Ratified December 15, 1791
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of
War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or
limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI.
Ratified December 15, 1791
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed, which district shall have been previously ascertained
by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his
defence.
Amendment VII.
Ratified December 15, 1791
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than
according to the rules of the common law.
Amendment VIII.
Ratified December 15, 1791
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX.
Ratified December 15, 1791
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by
the people.
Amendment X.
Ratified December 15, 1791
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.
34
Amendment XI.
Ratified February 7, 1795
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.
Amendment XII.
Ratified June 15, 1804
The Electors shall meet in their respective states, and vote by ballot for President and Vice President, one of whom,
at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted
for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all
persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each,
which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States,
directed to the President of the Senate; —The President of the Senate shall, in the presence of the Senate and House
of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest
number of votes for President, shall be the President, if such number be a majority of the whole number of Electors
appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding
three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot,
the President. But in choosing the President, the votes shall be taken by states, the representation from each state
having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and
a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a
President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then
the Vice-President shall act as President, as in the case of the death or other constitutional disability of the
President.— The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such
number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the
two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist
of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.
But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the
United States.
Amendment XIII.
Ratified December 6, 1865
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have
been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have the power to enforce this article by appropriate legislation.
Amendment XIV.
Ratified July 9, 1868
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers,
counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any
election for the choice of electors for President and Vice President of the United States, Representatives in Congress,
the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged,
except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the
35
proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years
of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or
hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath,
as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an
executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a
vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for
payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But
neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or
rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts,
obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Amendment XV.
Ratified February 3, 1870
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or
by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XVI.
Ratified February 3, 1913
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without
apportionment among the several States, and without regard to any census or enumeration.
Amendment XVII.
Ratified April 8, 1913
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof,
for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite
for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall
issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive
thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes
valid as part of the Constitution.
Amendment XVIII.
Ratified January 16, 1919
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating
liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject
to the jurisdiction thereof for beverage purposes is hereby prohibited.
36
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate
legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by
the legislatures of the several States, as provided in the Constitution, within seven years from the date of the
submission hereof to the States by the Congress.
Amendment XIX.
Ratified August 18, 1920
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State
on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Amendment XX.
Ratified January 23, 1933
Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms
of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have
ended if this article had not been ratified; and the terms of their successors shall then begin.
Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d
day of January, unless they shall by law appoint a different day.
Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the
Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the
beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as
President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a
President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the
manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice
President shall have qualified.
Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House
of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the
case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of
choice shall have devolved upon them.
Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.
Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by
the legislatures of three-fourths of the several States within seven years from the date of its submission.
Amendment XXI.
Ratified December 5, 1933
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery
or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
37
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by
conventions in the several States, as provided in the Constitution, within seven years from the date of the submission
hereof to the States by the Congress.
Amendment XXII.
Ratified February 27, 1951
Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the
office of President, or acted as President, for more than two years of a term to which some other person was elected
President shall be elected to the office of the President more than once. But this Article shall not apply to any person
holding the office of President when this Article was proposed by the Congress, and shall not prevent any person
who may be holding the office of President, or acting as President, during the term within which this Article
becomes operative from holding the office of President or acting as President during the remainder of such term.
Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by
the legislatures of three-fourths of the several States within seven years from the date of its submission to the States
by the Congress.
Amendment XXIII.
Ratified March 29, 1961
Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the
Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in
Congress to which the District would be entitled if it were a State, but in no event more than the least populous
State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the
election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and
perform such duties as provided by the twelfth article of amendment.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXIV.
Ratified January 23, 1964
Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice
President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be
denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.
Amendment XXV.
Ratified February 10, 1967
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall
become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice
President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the
House of Representatives his written declaration that he is unable to discharge the powers and duties of his office,
38
and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by
the Vice President as Acting President.
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments
or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the
Speaker of the House of Representatives their written declaration that the President is unable to discharge the
powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as
Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of
Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office
unless the Vice President and a majority of either the principal officers of the executive department or of such other
body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the
Speaker of the House of Representatives their written declaration that the President is unable to discharge the
powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for
that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration,
or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by twothirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice
President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers
and duties of his office.
Amendment XXVI.
Ratified July 1, 1971
Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be
denied or abridged by the United States or by any State on account of age.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXVII.
Ratified May 7, 1992
No law varying the compensation for the services of the Senators and Representatives shall take effect, until an
election of Representatives shall have intervened.
39
Introduction to the Antifederalist
by Professor Gordon Lloyd
The Four Options of Antifederalism
It is helpful to consider four options when reflecting on the importance of the Antifederalists. They are 1) incoherent
and irrelevant, 2) coherent and irrelevant, 3) incoherent and relevant, and 4) coherent and relevant. And which
option we choose is in large part linked to a) how we define the Antifederalist project, b) how we interpret The
Federalist and c) whether or not we are willing to retrieve the Antifederalists on their own terms or whether we see
them as valuable in a quarrel over the American regime.
One way to define the Antifederalists is that they are those who opposed ratification of the unamended Constitution
in 1787-1788. This definition might well make them lower case antifederalists or anti-federalists. The point is that
they are both incoherent and irrelevant. A broader definition, one that reaches back to Montesquieu or to Aristotle
introduces the possibility that they may be either coherent but irrelevant (Cecelia Kenyon) or incoherent but relevant
(Herbert Storing). The upper case and hyphenated Anti-Federalist nomenclature is the preferred appellation for this
approach. There is one last choice—the Antifederalists are coherent and relevant—and this suggests that we call
them Antifederalists, upper case and non-hyphenated.
This fourth approach argues that their coherence and relevance is located in their basically American and new world
character. They are neither Kenyon's "men of little faith" nor Storing's "incomplete reasoners," and thus "junior
founders." Their thought is grounded in the American struggle for independence, draws strength from the colonial
tradition, the natural rights tradition, and new state constitutions that emerged between 1776 and 1780. Their thought
is moreover informed by the Articles of Confederation of the 1780s, matured by the debates over the creation and
adoption of the Constitution, culminates with the adoption of the Bill of Rights and then bids farewell to its creative
phase with the introduction of the Virginia and Kentucky Resolutions. I encourage the reader to consider this
broader, and basically American and new world, definition of the Antifederalist project.
The Antifederalist Reputation
This reputation of the Antifederalists as irrelevant, even proto-Calhoun, disunionists was shaped, in part, by
Alexander Hamilton's observation in Federalist 1: "we already hear it whispered in the private circles of those who
oppose the new Constitution, that the thirteen States are of too great an extent for any general system, and that we
must of necessity resort to separate confederacies of distinct portions of the whole." The response by the
Antifederalist, "Centinel," to Hamilton has been largely ignored: this claim of disunion, he said, is "from the
deranged brain of Publius, a New York writer, who has devoted much time, and wasted more paper in combating
chimeras of his own creation."
James Madison's commentary in Federalist 38 was no doubt also influential in portraying the Antifederalists as
incoherent. Madison asks: "Are they agreed, are any two of them agreed, in their objections to the remedy proposed,
or in the proper one to be substituted? Let them speak for themselves." But Madison does not "let them speak for
themselves." When the Antifederalists are permitted to speak for themselves, as Antifederalist Melancton Smith
demonstrates, a remarkably coherent alternative emerges. "An Old Whig" makes the same point: "about the same
time, in very different parts of the continent, the very same objections have been made, and the very same alterations
proposed by different writers, who I verily believe, know nothing at all of each other." This appeared six weeks prior
to Federalist 38. When the Antifederalists are permitted to speak for themselves, a coherent and relevant account
emerges.
The Federalist argues for checks and balances, especially against the legislature; the Antifederalists support term
limits and rotation in office for all elected and appointed officials. But this is why Kenyon calls them irrelevant; they
held to a scheme of representation that was outmoded even for 1787. By contrast, The Federalist argues that the
representative needs a longer duration in office than provided by traditional republicanism in order to exercise the
40
responsibilities of the office and resist the narrow and misguided demands of an overbearing and unjust majority.
Because the Antifederalists were dubious that one could be both democratic and national, they urged less
independence for the elected representatives. They claimed that practical experience demonstrated that short terms
in office, reinforced by term limits, would be an indispensable additional security to the objective of the election
system to secure that the representatives were responsible to the people. For the Antifederalists, a responsible
representative—the essential characteristic of republicanism—was constitutionally obliged to be responsive to the
sovereign people. Ultimately, the "accountability" of the representative was secured by "rotation in office," the vital
principle of representative democracy. This is the concept of the citizen-politician who serves the public briefly and
then returns to the private sphere.
In Federalist 23, Hamilton describes the Antifederalist position as "absurd" because they admit the legitimacy of the
ends and then are squeamish, even, cowardly, about the means: "For the absurdity must continually stare us in the
face of confiding to a government the direction of the most essential national interests, without daring to trust it to
the authorities which are indispensable to their proper and efficient management. Let us not attempt to reconcile
contradictions, but firmly embrace a rational alternative." The Antifederalists, according to Hamilton, are mushy
thinkers; they fuss over means rather than focusing on ends. Storing totally agrees: they should have focused on the
ends of union and the (limited) role of the states in the accomplishment of those ends. The Antifederalists, according
to Hamilton and Storing, wanted union but argued against giving the union the means to secure the ends. They were
absurd and thus they were incoherent. But there is more. According to Storing, the Antifederalists also avoided the
hard and "ugly truth" of Federalist 51: the people can't govern themselves voluntarily. This truth, says Storing, is
something that the Federalists faced squarely.
Coherent and Relevant
Perhaps that the Antifederalists have a coherent understanding of federalism and republicanism—grounded in
"democratic federalism" and "constitutional republicanism"—and that this coherent understanding is worth keeping
alive in the twenty-first century because it addresses what ails the contemporary American federal republic.
Antifederalist thought is the built-in American antidote for the ills of the American federal republic. In particular,
the three other alternative explanations either read history backwards or import European or ancient categories to
explain an American experience.
The Antifederalists are not primarily interested in the "good government" project of The Federalist or the "best
regime" project of the ancients, or the "exit rights" project of the secessionists or many of the other projects invented
by the various historical schools; instead, I suggest they are interested in the creation and preservation of free
government. They remind us that free government means limited government, and thus the political project should
be focused on limiting rather than empowering politicians. Antifederalist statesmanship involves an attachment to
means, rather than an administration of ends. There is nothing absurd or incoherent about being fussy over the use
and misuse of means because means are actually powers and the abuse of powers sets us down the slippery slope to
old world tyranny.
The Antifederalists speak to those who have become increasingly disillusioned by the collapse of decentralized state
and local government, the greater intervention by the federal government in economic matters, the blurring of the
separation of powers, and the replacement of voluntary associations by government programs. The Antifederalists
warn: beware the dangers of "democratic nationalism," and "delegated constitutionalism." These are warnings from
within the very American System itself. They warn us that there is something morally corrosive about the exercise
of political power and thus they remind us about the need for the rule of law. And they warn about the dangers of the
Federalist temptation with empire abroad. The Antifederalists are not isolationists, men of little faith, or junior
partners; they are "Antitemptationalists" with a message of liberty and responsibility that resonates across the
centuries.
"On the most important points," then, the Antifederalists were not only in agreement but their position was coherent
and is currently relevant. They believed that republican liberty was best preserved in small units where the people
had an active and continuous part to play in government. Although they thought that the Articles best secured this
concept of republicanism, they were willing to bestow more authority on the federal government as long as this
didn't undermine the principles of federalism and republicanism. They argued that the Constitution placed
41
republicanism in danger because it undermined the pillars of small territorial size, frequent elections, short terms in
office, and accountability to the people, and, at the same time, encouraged the representatives to become
independent from the people and the state governments. They warned that unless restrictions were placed on the
powers of Congress, the Executive, and the Judiciary, the potentiality for the abuse of power would become a
reality. These warnings culminated in their insistence on a Bill of Rights which, in conjunction with small territory,
representative dependency, and strict construction, they conceived as the ultimate "auxiliary precaution."
The expression of discontent over the last fifty years about American politics has an ominous ring, revealing the
widespread Antifederal mood in the electorate. Among the dramatic changes in recent American politics are the
alarming alienation of the citizenry from the electoral system, the increased presence of the centralized
Administrative State, and the dangerous consequences of an activist judiciary that openly thwarts the deliberate
sense of the majority. These are all Antifederalist concerns about the tyranny of politicians. The term limits
movement of the late twentieth century demonstrates that the Antifederalist message—keep your representatives on
a short leash, otherwise you will lose your freedom—still resonates with the American people, because
Antifederalism is very much part of the American political experience.
When we hear the claim that our representatives operate independently of the people, and that the Congress fails to
represent the broad cross-section of interests in America, we are hearing an echo of the Antifederalist critique of
representation. When we hear that the federal government has spawned a vast and irresponsive administrative
bureaucracy that interferes too much with the life of American citizens, we are reminded of the warnings of the
Antifederalists concerning consolidated government. They warn that, in effect, executive orders, executive
privileges, and executive agreements will create the "Imperial Presidency." And they warn that an activist judiciary
will undermine the deliberate sense of the majority. The criticism that Americans have abandoned a concern for
their religious heritage and neglected the importance of local customs, habits, and morals, recalls the Antifederalist
dependence upon self-restraint and self-reliance. When we hear a concern for the passing of decentralization—old
time federalism—we are hearing the Antifederalist lament.
The Antifederalist project calls for a rejuvenation of interest in Antifederalist "democratic federalism" and
"constitutional republicanism." Since American politics is often a debate over the possibilities and limitations of the
separation of powers, an independent judiciary, federalism, and representative government, it is vital that the
potency of Antifederalist political analysis be restored. If the electorate has "lost faith" in the responsibility of the
representatives in every branch of government, then the very concept of representation undergirding the country is in
crisis. What is the solution? If no one cares either about the question, or the solution, then America is perhaps
doomed to go the way of previous great regimes, and the experiment in "republican government" is exactly what
opponents through the centuries have predicted it would be: a complete failure thus proving that the human race is
incapable of being governed other than by force and fraud.
Antifederalist political science advocated concentration of the power of the people and eliminating temptations for
the concentration of power in officeholders. The heart of their method was to propose a scheme of representation
that safeguarded interests and avoid the clashes of factions. This called for certain homogeneity of interests, as
opposed to the Madisonian encouragement of diverse interests. The latter approach they rejected as unnecessary and
dangerous. They placed their faith instead in the virtue of "middling" Americans—a virtue that was not informed by
ancient Sparta or even ancient Rome but by the modern doctrine of personal self-reliance—coupled with holding
their representatives "in the greatest responsibility to their constituents."
The Antifederalists viewed the Constitution as creating mutually independent sovereign agents. They argued that
such independent rulers would "erect an interest separate from the ruled," which will tempt them to lose both their
federal and their republican mores. The Antifederalists concluded that unless executive power was yet more limited,
representation more broadened, presidents and senators made more responsible to the people and the state
governments protected—unless the arrangement was significantly modified—the proposed regime would
necessarily destroy political liberty by destroying the sovereignty of the people, the litmus test of republicanism. As
an expression of this "constitutional republicanism," they insisted on a Bill of Rights as a declaration of popular
sovereignty.
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In conclusion, the Antifederalists warned about the tendency of the American system toward the consolidation of
political power in a) the nation to the detriment of the various states, and b) one branch of the federal government at
the expense of the separation of powers. They warned about c) the corrupting influence that political power has on
even decent people, whom decent people elected into office, and d) that the rule of law has a privileged position in
republican government. They also anticipated the idea that e) all politics is—or should be—local and thus particular
attachments rather than abstract ideas matter in the preservation of a liberal political order.
Objections to the Constitution
George Mason
October 1787
OBJECTIONS OF THE HON. GEORGE MASON,
ONE OF THE DELEGATES FROM VIRGINIA IN THE LATE CONTINENTAL CONVENTION,
TO THE PROPOSED FEDERAL CONSTITUTION;
ASSIGNED AS HIS REASONS FOR NOT SIGNING THE SAME.
There is no declaration of rights; and, the laws of the general government being paramount to the laws and
constitutions of the several states, the declarations of rights in the separate states are no security. Nor are the people
secured even in the enjoyment of the benefit of the common law, which stands here upon no other foundation than
its having been adopted by the respective acts forming the constitutions of the several states.
In the House of Representatives there is not the substance, but the shadow only, of representation, which can never
produce proper information in the legislature, or inspire confidence in the people. The laws will, therefore, be
generally made by men little concerned in, and unacquainted with, their effects and consequences.
The Senate have the power of altering all money bills, and of originating appropriations of money, and the salaries
of the officers of their own appointment, in conjunction with the President of the United States, although they are
not the representatives of the people, or amenable to them. These, with their other great powers, (viz., their powers
in the appointment of ambassadors, and all public officers, in making treaties, and in trying all impeachments;) their
influence upon, and connection with, the supreme executive from these causes; their duration of office; and their
being a constant existing body, almost continually sitting, joined with their being one complete branch of the
legislature, -- will destroy any balance in the government, and enable them to accomplish what usurpations they
please upon the rights and liberties of the people.
The judiciary of the United States is so constructed and extended as to absorb and destroy the judiciaries of the
several states; thereby rendering laws as tedious, intricate, and expensive, and justice as unattainable, by a great part
of the community, as in England; and enabling the rich to oppress and ruin the poor.
The President of the United States has no constitutional council, (a thing unknown in any safe and regular
government.) He will therefore be unsupported by proper information and advice, and will generally be directed by
minions and favorites; or he will become a tool to the Senate; or a council of state will grow out of the principal
officers of the great departments -- the worst and most dangerous of all ingredients for such a council, in a free
country; for they may be induced to join in any dangerous or oppressive measures, to shelter themselves, and
prevent an inquiry into their own misconduct in office. Whereas, had a constitutional council been formed (as was
proposed) of six members, viz., two from the Eastern, two from the Middle, and two from the Southern States, to be
appointed by vote of the states in the House of Representatives, with the same duration and rotation of office as the
Senate, the executive would always have had safe and proper information and advice: the president of such a council
might have acted as Vice-President of the United States, pro tempore, upon any vacancy or disability of the chief
magistrate; and long-continued sessions of the Senate would in a great measure have been prevented. From this fatal
defect of a constitutional council has arisen the improper power of the Senate in the appointment of the public
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officers, and the alarming dependence and connection between that branch of the legislature and the supreme
executive. Hence, also, sprang that unnecessary officer, the Vice-President, who, for want of other employment, is
made president of the Senate; thereby dangerously blending the executive and legislative powers, besides always
giving to some one of the states an unnecessary and unjust preminence over the others.
The President of the United States has the unrestrained power of granting pardon for treason; which may be
sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and
thereby prevent a discovery of his own guilt. By declaring all treaties supreme laws of the land, the executive and
the Senate have, in many cases, an exclusive power of legislation, which might have been avoided, by proper
distinctions with respect to treaties, and requiring the assent of the House of Representatives, where it could be done
with safety.
By requiring only a majority to make all commercial and navigation laws, the five Southern States (whose produce
and circumstances are totally different from those of the eight Northern and Eastern States) will be ruined; for such
rigid and premature regulations may be made, as will enable the merchants of the Northern and Eastern States not
only to demand an exorbitant freight, but to monopolize the purchase of the commodities, at their own price, for
many years, to the great injury of the landed interest, and the impoverishment of the people; and the danger is the
greater, as the gain on one side will be in proportion to the loss on the other. Whereas, requiring two thirds of the
members present in both houses, would have produced mutual moderation, promoted the general interest, and
removed an insuperable objection to the adoption of the government.
Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant
monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their
power as far as they shall think proper; so that the state legislatures have no security for the powers now presumed to
remain to them, or the people for their rights. There is no declaration of any kind for preserving the liberty of the
press, the trial by jury in civil cases, nor against the danger of standing armies in time of peace.
The state legislatures are restrained from laying export duties on their own produce; the general legislature is
restrained from prohibiting the further importation of slaves for twenty-odd years, though such importations render
the United States weaker, more vulnerable, and less capable of defence. Both the general legislature and the state
legislatures are expressly prohibited making ex post facto laws, though there never was, nor can be, a legislature but
must and will make such laws, when necessity and the public safety require them, which will hereafter be a breach
of all the constitutions in the Union, and afford precedents for other innovations.
This government will commence in a moderate aristocracy: it is at present impossible to foresee whether it will, in
its operation, produce a monarchy or a corrupt oppressive aristocracy; it will most probably vibrate some years
between the two, and then terminate in the one or the other.
GEO. MASON.
Virginia Ratifying Convention
Patrick Henry
June 5, 1788
Ratifying Convention, June 5, 1788
Mr. HENRY. Mr. Chairman, I am much obliged to the very worthy gentleman for his encomium. I wish I was
possessed with talents, or possessed of any thing that might enable me to elucidate this great subject. I am not free
44
from suspicion: I am apt to entertain doubts. I rose yesterday to ask a question which arose in my own mind. When I
asked that question, I thought the meaning of my interrogation was obvious. The fate of this question and of
America may depend on this. Have they said, We, the states? Have they made a proposal of a compact between
states? If they had, this would be a confederation. It is otherwise most clearly a consolidated government. The
question turns, sir, on that poor little thing — the expression, We, the people, instead of the states, of America. I
need not take much pains to show that the principles of this system are extremely pernicious, impolitic, and
dangerous. Is this a monarchy, like England — a compact between prince and people, with checks on the former to
secure the liberty of the latter? Is this a confederacy, like Holland — an association of a number of independent
states, each of which retains its individual sovereignty? It is not a democracy, wherein the people retain all their
rights securely. Had these principles been adhered to, we should not have been brought to this alarming transition,
from a confederacy to a consolidated government. We have no detail of these great consideration, which, in my
opinion, ought to have abounded before we should recur to a government of this kind. Here is a resolution as radical
as that which separated us from Great Britain. It is radical in this transition; our rights and privileges are endangered,
and the sovereignty of the states will be relinquished: and cannot we plainly see that this is actually the case? The
rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human
rights and privileges, are rendered insecure, if not lost, by this change, so loudly talked of by some, and
inconsiderately by others. Is this tame relinquishment of rights worthy of freemen? Is it worthy of that manly
fortitude that ought to characterize republicans? It is said eight states have adopted this plan. I declare that if twelve
states and a half had adopted it, I would, with manly firmness, and in spite of an erring world, reject it. You are not
to inquire how your trade may be increased, nor how you are to become a great and powerful {45} people, but how
your liberties can be secured; for liberty ought to be the direct end of your government.
Having premised these things, I shall, with the aid of my judgment and information, which, I confess, are not
extensive, go into the discussion of this system more minutely. Is it necessary for your liberty that you should
abandon those great rights by the adoption of this system? Is the relinquishment of the trial by jury and the liberty of
the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your
liberty? Liberty, the greatest of all earthly blessing — give us that precious jewel, and you may take every thing
else! But I am fearful I have lived long enough to become an old-fashioned fellow. Perhaps an invincible attachment
to the dearest rights of man may, in these refined, enlightened days, be deemed old-fashioned; if so, I am contented
to be so. I say, the time has been when every pulse of my heart beat for American liberty, and which, I believe, had a
counterpart in the breast of every true American; but suspicions have gone forth — suspicions of my integrity —
publicly reported that my professions are not real. Twenty-three years ago was I supposed a traitor to my country? I
was then said to be the bane of sedition, because I supported the rights of my country. I may be thought suspicious
when I say our privileges and rights are in danger. But, sir, a number of the people of this country are weak enough
to think these things are too true. I am happy to find that the gentleman on the other side declares they are
groundless. But, sir, suspicion is a virtue as long as its object is the preservation of the public good, and as long as it
stays within proper bounds: should it fall on me, I am contented: conscious rectitude is a powerful consolation. I
trust there are many who think my professions for the public good to be real. Let your suspicion look to both sides.
There are many on the other side, who possibly may have been persuaded to the necessity of these measures, which
I conceive to be dangerous to your liberty. Guard with jealous attention the public liberty. Suspect every one who
approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force,
you are inevitably ruined. I am answered by gentlemen, that, though I might speak of terrors, yet the fact was, that
we were surrounded by none of the {46} dangers I apprehended. I conceive this new government to be one of those
dangers: it has produced those horrors which distress many of our best citizens. We are come hither to preserve the
poor commonwealth of Virginia, if it can be possibly done: something must be done to preserve your liberty and
mine. The Confederation, this same despised government, merits, in my opinion, the highest encomium: it carried us
through a long and dangerous war; it rendered us victorious in that bloody conflict with a powerful nation; it has
secured us a territory greater than any European monarch possesses: and shall a government which has been thus
strong and vigorous, be accused of imbecility, and abandoned for want of energy? Consider what you are about to
do before you part with the government. Take longer time in reckoning things; revolutions like this have happened
in almost every country in Europe; similar examples are to be found in ancient Greece and ancient Rome —
instances of the people losing their liberty by their own carelessness and the ambition of a few. We are cautioned by
the honorable gentleman, who presides, against faction and turbulence. I acknowledge that licentiousness is
dangerous, and that it ought to be provided against: I acknowledge, also, the new form of government may
effectually prevent it: yet there is another thing it will as effectually do — it will oppress and ruin the people.
45
There are sufficient guards placed against sedition and licentiousness; for, when power is given to this government
to suppress these, or for any other purpose, the language it assumes is clear, express, and unequivocal; but when this
Constitution speaks of privileges, there is an ambiguity, sir, a fatal ambiguity — an ambiguity which is very
astonishing. In the clause under consideration, there is the strangest language that I can conceive. I mean, when it
says that there shall not be more representatives than one for every thirty thousand. Now, sir, how easy is it to evade
this privilege! "The number shall not exceed one for every thirty thousand." This may be satisfied by one
representative from each state. Let our numbers be ever so great, this immense continent may, by this artful
expression, be reduced to have but thirteen representatives. I confess this construction is not natural; but the
ambiguity of the expression lays a good ground for a quarrel. Why was it not clearly and unequivocally {47}
expressed, that they should be entitled to have one for every thirty thousand? This would have obviated all disputes;
and was this difficult to be done? What is the inference? When population increases, and a state shall send
representatives in this proportion, Congress may remand them, because the right of having one for every thirty
thousand is not clearly expressed. This possibility of reducing the number to one for each state approximates to
probability by that other expression — "but each state shall at least have one representative." Now, is it not clear
that, from the first expression, the number might be reduced so much that some states should have no representatives
at all, were it not for the insertion of this last expression? And as this is the only restriction upon them, we may fairly
conclude that they may restrain the number to one from each state. Perhaps the same horrors may hang over my
mind again. I shall be told I am continually afraid: but, sir, I have strong cause of apprehension. In some parts of the
plan before you, the great rights of freemen are endangered; in other parts, absolutely taken away. How does your
trial by jury stand? In civil cases gone — not sufficiently secured in criminal — this best privilege is gone. But we
are told that we need not fear; because those in power, being our representatives, will not abuse the powers we put in
their hands. I am not well versed in history, but I will submit to your recollection, whether liberty has been destroyed
most often by the licentiousness of the people, or by the tyranny of rulers. I imagine, sir, you will find the balance on
the side of tyranny. Happy will you be if you miss the fate of those nations, who, omitting to resist their oppressors,
or negligently suffering their liberty to be wrested from them, have groaned under intolerable despotism! Most of
the human race are now in this deplorable condition; and those nations who have gone in search of grandeur, power,
and splendor, have also fallen a sacrifice, and been the victims of their own folly. While they acquired those
visionary blessings, they lost their freedom. My great objection to this government is, that it does not leave us the
means of defending our rights, or of waging war against tyrants. It is urged by some gentlemen, that this new plan
will bring us an acquisition of strength — an army, and the militia of the states. This is an idea extremely ridiculous:
gentlemen cannot be earnest. This acquisition {48} will trample on our fallen liberty. Let my beloved Americans
guard against that fatal lethargy that has pervaded the universe. Have we the means of resisting disciplined armies,
when our only defence, the militia, is put into the hands of Congress? The honorable gentleman said that great
danger would ensue if the Convention rose without adopting this system. I ask, Where is that danger? I see none.
Other gentlemen have told us, within these walls, that the union is gone, or that the union will be gone. Is not this
trifling with the judgment of their fellow-citizens? Till they tell us the grounds of their fears, I will consider them as
imaginary. I rose to make inquiry where those dangers were; they could make no answer: I believe I never shall have
that answer. Is there a disposition in the people of this country to revolt against the dominion of laws? Has there
been a single tumult in Virginia? Have not the people of Virginia, when laboring under the severest pressure of
accumulated distresses, manifested the most cordial acquiescence in the execution of the laws? What could be more
awful than their unanimous acquiescence under general distresses? Is there any revolution in Virginia? Whither is
the spirit of America gone? Whither is the genius of America fled? It was but yesterday, when our enemies marched
in triumph through our country. Yet the people of this country could not be appalled by their pompous armaments:
they stopped their carer, and victoriously captured them. Where is the peril, now, compared to that? Some minds are
agitated by foreign alarms. Happily for us, there is no real danger from Europe; that country is engaged in more
arduous business: from that quarter there is no cause of fear: you may sleep in safety forever for them.
Where is the danger? If, sir, there was any, I would recur to the American spirit to defend us; that spirit which has
enabled us to surmount the greatest difficulties: to that illustrious spirit I address my most fervent prayer to prevent
our adopting a system destructive to liberty. Let not gentlemen be told that it is not safe to reject this government.
Wherefore is it not safe? We are told there are dangers, but those dangers are ideal; they cannot be demonstrated. To
encourage us to adopt it, they tell us that there is a plain, easy way of getting amendments. When I come to
contemplate this part, I suppose that I am mad, or that my {49} countrymen are so. The way to amendment is, in my
conception, shut. Let us consider this plain, easy way. "The Congress, whenever two thirds of both houses shall
deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two
thirds of the several states, shall call a Convention for proposing amendments, which, in either case, shall be valid to
46
all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several
states, or by the Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed
by the Congress. Provided, that no amendment which may be made prior to the year 1808, shall in any manner affect
the 1st and 4th clauses in the 9th section of the 1st article; and that no state, without its consent, shall be deprived of
its equal suffrage in the Senate."
Hence it appears that three fourths of the states must ultimately agree to any amendments that may be necessary. Let
us consider the consequence of this. However uncharitable it may appear, yet I must tell my opinion — that the most
unworthy characters may get into power, and prevent the introduction of amendments. Let us suppose — for the
case is supposable, possible, and probable — that you happen to deal those powers to unworthy hands; will they
relinquish powers already in their possession, or agree to amendments? Two thirds of the Congress, or of the state
legislatures, are necessary even to propose amendments. If one third of these be unworthy men, they may prevent
the application for amendments; but what is destructive and mischievous, is, that three fourths of the state
legislatures, or of the state conventions, must concur in the amendments when proposed! In such numerous bodies,
there must necessarily be some designing, bad men. To suppose that so large a number as three fourths of the states
will concur, is to suppose that they will possess genius, intelligence, and integrity, approaching to miraculous. It
would indeed be miraculous that they should concur in the same amendments, or even in such as would bear some
likeness to one another; for four of the smallest states, that do not collectively contain one tenth part of the
population of the United States, may obstruct the most salutary and necessary amendments. Nay, in these four states,
six tenths of the people may reject {50} these amendments; and suppose that amendments shall be opposed to
amendments, which is highly probable, — is it possible that three fourths can ever agree to the same amendments?
A bare majority in these four small states may hinder the adoption of amendments; so that we may fairly and justly
conclude that one twentieth part of the American people may prevent the removal of the most grievous
inconveniences and oppression, by refusing to accede to amendments. A trifling minority may reject the most
salutary amendments. Is this an easy mode of securing the public liberty It is, sir, a most fearful situation, when the
most contemptible minority can prevent the alteration of the most oppressive government; for it may, in many
respects, prove to be such. Is this the spirit of republicanism?
What, sir, is the genius of democracy? Let me read that clause of the bill of rights of Virginia which relates to this:
3d clause: — that government is, or ought to be, instituted for the common benefit, protection, and security of the
people, nation, or community. Of all the various modes and forms of government, that is best, which is capable of
producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that whenever any government shall be found inadequate, or contrary to those purposes, a
majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it, in
such manner as shall be judged most conducive to the public weal.
This, sir, is the language of democracy — that a majority of the community have a right to alter government when
found to be oppressive. But how different is the genius of your new Constitution from this! How different from the
sentiments of freemen, that a contemptible minority can prevent the good of the majority! If, then, gentlemen,
standing on this ground, are come to that point, that they are willing to bind themselves and their posterity to be
oppressed, I am amazed and inexpressibly astonished. If this be the opinion of the majority, I must submit; but to
me, sir, it appears perilous and destructive. I cannot help thinking so. Perhaps it may be the result of my age. These
may be feelings natural to a man of my years, when the American spirit has left him, and his mental powers, like the
members of the body, are decayed. If, sir, amendments {51} are left to the twentieth, or tenth part of the people of
America, your liberty is gone forever. We have heard that there is a great deal of bribery practised in the House of
Commons, in England, and that many of the members raise themselves to preferments by selling the rights of the
whole of the people. But, sir, the tenth part of that body cannot continue oppression on the rest of the people.
English liberty is, in this case, on a firmer foundation than American liberty. It will be easily contrived to procure
the opposition of one tenth of the people to any alteration, however judicious. The honorable gentleman who
presides told us that, to prevent abuses in our government, we will assemble in Convention, recall our delegated
powers, and punish our servants for abusing the trust reposed in them. O sir, we should have fine times, indeed, if, to
punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves,
are gone; and you have no longer an aristocratical, no longer a democratical spirit. Did you ever read of any
revolution in a nation, brought about by the punishment of those in power, inflicted by those who had no power at
all? You read of a riot act in a country which is called one of the freest in the world, where a few neighbors cannot
47
assemble without the risk of being shot by a hired soldiery, the engines of despotism. We may see such an act in
America.
A standing army we shall have, also, to execute the execrable commands of tyranny; and how are you to punish
them? Will you order them to be punished? Who shall obey these orders? Will your mace-bearer be a match for a
disciplined regiment? In what situation are we to be? The clause before you gives a power of direct taxation,
unbounded and unlimited, exclusive power of legislation, in all cases whatsoever, for ten miles square, and over all
places purchased for the erection of forts, magazines, arsenals, dockyards, &c. What resistance could be made? The
attempt would be madness. You will find all the strength of this country in the hands of your enemies; their
garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another
part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot
force them to receive their punishment: of what service would militia be to you, {52} when, most probably, you will
not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish
them.
Let me here call your attention to that part which gives the Congress power "to provide for organizing, arming, and
disciplining the militia, and for governing such part of them as may be employed in the service of the United States
— reserving to the states, respectively, the appointment of the officers, and the authority of training the militia
according to the discipline prescribed by Congress." By this, sir, you see that their control over our last and best
defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do
neither — this power being exclusively given to Congress. The power of appointing officers over men not
disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure
of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this
government amended, since I have already shown that a very small minority may prevent it, and that small minority
interested in the continuance of the oppression. Will the oppressor let go the oppressed? Was there ever an instance?
Can the annals of mankind exhibit one single example where rulers overcharged with power willingly let go the
oppressed, though solicited and requested most earnestly? The application for amendments will therefore be
fruitless. Sometimes, the oppressed have got loose by one of those bloody struggles that desolate a country; but a
willing relinquishment of power is one of those things which human nature never was, nor ever will be, capable of.
The honorable gentleman’s observations, respecting the people’s right of being the agents in the formation of this
government, are not accurate, in my humble conception. The distinction between a national government and a
confederacy is not sufficiently discerned. Had the delegates, who were sent to Philadelphia, a power to propose a
consolidated government instead of a confederacy? Were they not deputed by states, and not by the people? The
assent of the people, in their collective capacity, is not necessary to the formation of a federal government. The
people have no right to enter into leagues, alliances, or confederations; {53} they are not the proper agents for this
purpose. States and foreign powers are the only proper agents for this kind of government. Show me an instance
where the people have exercised this business. Has it not always gone through the legislatures? I refer you to the
treaties with France, Holland, and other nations. How were they made? Were they not made by the states? Are the
people, therefore, in their aggregate capacity, the proper persons to form a confederacy? This, therefore, ought to
depend on the consent of the legislatures, the people having never sent delegates to make any proposition for
changing the government. Yet I must say, at the same time, that it was made on grounds the most pure; and perhaps
I might have been brought to consent to it so far as to the change of government. But there is one thing in it which I
never would acquiesce in. I mean, the changing it into a consolidated government, which is so abhorrent to my
mind. [The honorable gentleman then went on to the figure we make with foreign nations; the contemptible one we
make in France and Holland; which, according to the substance of the notes, he attributes to the present feeble
government.] An opinion has gone forth, we find, that we are contemptible people: the time has been when we were
thought otherwise. Under the same despised government, we commanded the respect of all Europe: wherefore are
we now reckoned otherwise? The American spirit has fled from hence: it has gone to regions where it has never
been expected; it has gone to the people of France, in search of a splendid government — a strong, energetic
government. Shall we imitate the example of those nations who have gone from a simple to a splendid government?
Are those nations more worthy of our imitation? What can make an adequate satisfaction to them for the loss they
have suffered in attaining such a government — for the loss of their liberty? If we admit this consolidated
government, it will be because we like a great, splendid one. Some way or other we must be a great and mighty
empire; we must have an army, and a navy, and a number of things. When the American spirit was in its youth, the
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language of America was different: liberty, sir, was then the primary object. We are descended from a people whose
government was founded on liberty: our glorious forefathers of Great Britain made liberty the foundation {54} of
every thing. That country is become a great, mighty, and splendid nation; not because their government is strong and
energetic, but, sir, because liberty is its direct end and foundation. We drew the spirit of liberty from our British
ancestors: by that spirit we have triumphed over every difficulty. But now, sir, the American spirit, assisted by the
ropes and chains of consolidation, is about to convert this country into a powerful and mighty empire. If you make
the citizens of this country agree to become the subjects of one great consolidated empire of America, your
government will not have sufficient energy to keep them together. Such a government is incompatible with the
genius of republicanism. There will be no checks, no real balances, in this government. What can avail your
specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances? But, sir,
we are not feared by foreigners; we do not make nations tremble. Would this constitute happiness, or secure liberty?
I trust, sir, our political hemisphere will ever direct their operations to the security of those objects.
Consider our situation, sir: go to the poor man, and ask him what he does. He will inform you that he enjoys the
fruits of his labor, under his own fig-tree, with his wife and children around him, in peace and security. Go to every
other member of society, — you will find the same tranquil ease and content; you will find no alarms or
disturbances. Why, then, tell us of danger, to terrify us into an adoption of this new form of government? And yet
who knows the dangers that this new system may produce? They are out of the sight of the common people: they
cannot foresee latent consequences. I dread the operation of it on the middling and lower classes of people: it is for
them I fear the adoption of this system. I fear I tire the patience of the committee; but I beg to be indulged with a
few more observations. When I thus profess myself an advocate for the liberty of the people, I shall be told I am a
designing man, that I am to be a great man, that I am to be a demagogue; and many similar illiberal insinuations will
be thrown out: but, sir, conscious rectitude outweighs those things with me. I see great jeopardy in this new
government. I see none from our present one. I hope some gentleman or other will bring forth, in full array, those
{55} dangers, if there be any, that we may see and touch them. I have said that I thought this a consolidated
government: I will now prove it. Will the great rights of the people be secured by this government? Suppose it
should prove oppressive, how can it be altered? Our bill of rights declares, "that a majority of the community hath an
indubitable, unalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most
conducive to the public weal."
I have just proved that one tenth, or less, of the people of America — a most despicable minority — may prevent
this reform or alteration. Suppose the people of Virginia should wish to alter their government; can a majority of
them do it? No; because they are connected with other men, or, in other words, consolidated with other states. When
the people of Virginia, at a future day, shall wish to alter their government, though they should be unanimous in this
desire, yet they may be prevented therefrom by a despicable minority at the extremity of the United States. The
founders of your own Constitution made your government changeable: but the power of changing it is gone from
you. Whither is it gone? It is placed in the same hands that hold the rights of twelve other states; and those who hold
those rights have right and power to keep them. It is not the particular government of Virginia: one of the leading
features of that government is, that a majority can alter it, when necessary for the public good. This government is
not a Virginian, but an American government. Is it not, therefore, a consolidated government? The sixth clause of
your bill of rights tells you, "that elections of members to serve as representatives of the people in Assembly ought
to be free, and that all men having sufficient evidence of permanent common interest with, and attachment to, the
community, have the right of suffrage, and cannot be taxed, or deprived of their property for public uses, without
their own consent, or that of their representatives so elected, nor bound by any law to which they have not in like
manner assented for the public good." But what does this Constitution say? The clause under consideration gives an
unlimited and unbounded power of taxation. Suppose every delegate from Virginia opposes a law laying a tax; what
will it avail? They are opposed by a majority; eleven members can destroy their efforts: {56} those feeble ten cannot
prevent the passing the most oppressive tax law; so that, in direct opposition to the spirit and express language of
your declaration of rights, you are taxed, not by your own consent, but by people who have no connection with you.
The next clause of the bill of rights tells you, "that all power of suspending law, or the execution of laws, by any
authority, without the consent of the representatives of the people, is injurious to their rights, and ought not to be
exercised." This tells us that there can be no suspension of government or laws without our own consent; yet this
Constitution can counteract and suspend any of our laws that contravene its oppressive operation; for they have the
power of direct taxation, which suspends our bill of rights; and it is expressly provided that they can make all laws
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necessary for carrying their powers into execution; and it is declared paramount to the laws and constitutions of the
states. Consider how the only remaining defence we have left is destroyed in this manner. Besides the expenses of
maintaining the Senate and other house in as much splendor as they please, there is to be a great and mighty
President, with very extensive powers — the powers of a king. He is to be supported in extravagant magnificence;
so that the whole of our property may be taken by this American government, by laying what taxes they please,
giving themselves what salaries they please, and suspending our laws at their pleasure. I might be thought too
inquisitive, but I believe I should take up very little of your time in enumerating the little power that is left to the
government of Virginia; for this power is reduced to little or nothing: their garrisons, magazines, arsenals, and forts,
which will be situated in the strongest places within the states; their ten miles square, with all the fine ornaments of
human life, added to their powers, and taken from the states, will reduce the power of the latter to nothing.
The voice of tradition, I trust, will inform posterity of our struggles for freedom. If our descendants be worthy the
name of Americans, they will preserve, and hand down to their latest posterity, the transactions of the present times;
and, though I confess my exclamations are not worthy the hearing, they will see that I have done my utmost to
preserve their liberty; for I never will give up the power of direct taxation but for a scourge. I am willing to give it
conditionally; {57} that is, after non-compliance with requisitions. I will do more, sir, and what I hope will convince
the most skeptical man that I am a lover of the American Union — that, in case Virginia shall not make punctual
payment, the control of our custom-houses, and the whole regulation of trade, shall be given to Congress, and that
Virginia shall depend on Congress even for passports, till Virginia shall have paid the last farthing, and furnished the
last soldier. Nay, sir, there is another alternative to which I would consent; — even that they should strike us out of
the Union, and take away from us all federal privileges, till we comply with federal requisitions: but let it depend
upon our own pleasure to pay our money in the most easy manner for our people. Were all the states, more terrible
than the mother country, to join against us, I hope Virginia could defend herself; but, sir, the dissolution of the
Union is most abhorrent to my mind. The first thing I have at heart is American liberty: the second thing is
American union; and I hope the people of Virginia will endeavor to preserve that union. The increasing population
of the Southern States is far greater than that of New England; consequently, in a short time, they will be far more
numerous than the people of that country. Consider this, and you will find this state more particularly interested to
support American liberty, and not bind our posterity by an improvident relinquishment of our rights. I would give
the best security for a punctual compliance with requisitions; but I beseech gentlemen, at all hazards, not to give up
this unlimited power of taxation. The honorable gentleman has told us that these powers, given to Congress, are
accompanied by a judiciary which will correct all. On examination, you will find this very judiciary oppressively
constructed; your jury trial destroyed, and the judges dependent on Congress.
In this scheme of energetic government, the people will find two sets of tax-gatherers — the state and the federal
sheriffs. This, it seems to me, will produce such dreadful oppression as the people cannot possibly bear. The federal
sheriff may commit what oppression, make what distresses, he pleases, and ruin you with impunity; for how are you
to tie his hands? Have you any sufficiently decided means of preventing him from sucking your blood by
speculations, commissions, and fees? Thus thousands of your people will be most shamefully robbed: our state
sheriffs, those unfeeling blood-suckers {58} have, under the watchful eye of our legislature, committed the most
horrid and barbarous ravages on our people. It has required the most constant vigilance of the legislature to keep
them from totally ruining the people; a repeated succession of laws has been made to suppress their iniquitous
speculations and cruel extortions; and as often has their nefarious ingenuity devised methods of evading the force of
those laws: in the struggle they have generally triumphed over the legislature.
It is a fact that lands have been sold for five shillings, which were worth one hundred pounds: if sheriffs, thus
immediately under the eye of our state legislature and judiciary, have dared to commit these outrages, what would
they not have done if their masters had been at Philadelphia or New York? If they perpetrate the most unwarrantable
outrage on your person or property, you cannot get redress on this side of Philadelphia or New York; and how can
you get it there? If your domestic avocations could permit you to go thither, there you must appeal to judges sworn
to support this Constitution, in opposition to that of any state, and who may also be inclined to favor their own
officers. When these harpies are aided by excisemen, who may search, at any time, your houses, and most secret
recesses, will the people bear it? If you think so, you differ from me. Where I thought there was a possibility of such
mischiefs, I would grant power with a niggardly hand; and here there is a strong probability that these oppressions
shall actually happen. I may be told that it is safe to err on that side, because such regulations may be made by
Congress as shall restrain these officers, and because laws are made by our representatives, and judged by righteous
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judges: but, sir, as these regulations may be made, so they may not; and many reasons there are to induce a belief
that they will not. I shall therefore be an infidel on that point till the day of my death.
This Constitution is said to have beautiful features; but when I come to examine these features, sir, they appear to
me horribly frightful. Among other deformities, it has an awful squinting; it squints towards monarchy; and does not
this raise indignation in the breast of every true American?
Your President may easily become king. Your Senate is so imperfectly constructed that your dearest rights may be
sacrificed by what may be a small minority; and a very small minority may continue forever unchangeably this
government, {59} although horridly defective. Where are your checks in this government? Your strongholds will be
in the hands of your enemies. It is on a supposition that your American governors shall be honest, that all the good
qualities of this government are founded; but its defective and imperfect construction puts it in their power to
perpetrate the worst of mischiefs, should they be bad men; and, sir, would not all the world, from the eastern to the
western hemisphere, blame our distracted folly in resting our rights upon the contingency of our rulers being good or
bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of
their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever
followed, with absolute certainty, every such mad attempt.
If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute! The
army is in his hands, and if he be a man of address, it will be attached to him, and it will be the subject of long
meditation with him to seize the first auspicious moment to accomplish his design; and, sir, will the American spirit
solely relieve you when this happens? I would rather infinitely — and I am sure most of this Convention are of the
same opinion — have a king, lords, and commons, than a government so replete with such insupportable evils. If we
make a king, we may prescribe the rules by which he shall rule his people, and interpose such checks as shall
prevent him from infringing them; but the President, in the field, at the head of his army, can prescribe the terms on
which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke.
I cannot with patience think of this idea. If ever he violates the laws, one of two things will happen: he will come at
the head of his army, to carry every thing before him; or he will give bail, or do what Mr. Chief Justice will order
him. If he be guilty, will not the recollection of his crimes teach him to make one bold push for the American
throne? Will not the immense difference between being master of every thing, and being ignominiously tried and
punished, powerfully excite him to make this bold push? But, sir, where is the existing force to punish him? Can he
not, at the head of his army, beat down every opposition? Away with your {60} President! we shall have a king: the
army will salute him monarch: your militia will leave you, and assist in making him king, and fight against you: and
what have you to oppose this force? What will then become of you and your rights? Will not absolute despotism
ensue?
The history of Switzerland clearly proves that we might be in amicable alliance with those states without adopting
this Constitution. Switzerland is a confederacy, consisting of dissimilar governments. This is an example which
proves that governments of dissimilar structures may be confederated. That confederate republic has stood upwards
of four hundred years; and, although several of the individual republics are democratic, and the rest aristocratic, no
evil has resulted from this dissimilarity; for they have braved all the power of France and Germany during that long
period. The Swiss spirit, sir, has kept them together; they have encountered and overcome immense difficulties with
patience and fortitude. In the vicinity of powerful and ambitious monarchs, they have retained their independence,
republican simplicity, and valor. [Here he makes a comparison of the people of that country and those of France, and
makes a quotation from Addison illustrating the subject.] Look at the peasants of that country and of France; and
mark the difference. You will find the condition of the former far more desirable and comfortable. No matter
whether the people be great, splendid, and powerful, if they enjoy freedom. The Turkish Grand Signior, alongside of
our President, would put us to disgrace; but we should be as abundantly consoled for this disgrace, when our citizens
have been put in contrast with the Turkish slave. The most valuable end of government is the liberty of the
inhabitants. No possible advantages can compensate for the loss of this privilege. Show me the reason why the
American Union is to be dissolved. Who are those eight adopting states? Are they averse to give us a little time to
consider, before we {63} conclude? Would such a disposition render a junction with them eligible; or is it the genius
of that kind of government to precipitate people hastily into measures of the utmost importance, and grant no
indulgence? If it be, sir, is it for us to accede to such a government? We have a right to have time to consider; we
shall therefore insist upon it. Unless the government be amended, we can never accept it. The adopting states will
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doubtless accept our money and our regiments; and what is to be the consequence, if we are disunited? I believe it is
yet doubtful, whether it is not proper to stand by a while, and see the effect of its adoption in other states. In forming
a government, the utmost care should be taken to prevent its becoming oppressive; and this government is of such an
intricate and complicated nature, that no man on this earth can know its real operation. The other states have no
reason to think, from the antecedent conduct of Virginia, that she has any intention of seceding from the Union, or of
being less active to support the general welfare. Would they not, therefore, acquiesce in our taking time to deliberate
— deliberate whether the measure be not perilous, not only for us, but the adopting states?
Permit me, sir, to say, that a great majority of the people, even in the adopting states, are averse to this government. I
believe I would be right to say, that they have been egregiously misled. Pennsylvania has, perhaps, been tricked into
it. If the other states who have adopted it have not been tricked, still they were too much hurried into its adoption.
There were very respectable minorities in several of them; and if reports be true, a clear majority of the people are
averse to it. If we also accede, and it should prove grievous, the peace and prosperity of our country, which we all
love, will be destroyed. This government has not the affection of the people at present. Should it be oppressive, their
affections will be totally estranged from it; and, sir, you know that a government, without their affections, can
neither be durable nor happy. I speak as one poor individual; but when I speak, I speak the language of thousands.
But, sir, I mean not to breathe the spirit, nor utter the language, of secession.
I have trespassed so long on your patience, I am really concerned that I have something yet to say. The honorable
{64} member has said, we shall be properly represented. Remember, sir, that the number of our representatives is
but ten, whereof six is a majority. Will those men be possessed of sufficient information? A particular knowledge of
particular districts will not suffice. They must be well acquainted with agriculture, commerce, and a great variety of
other matters throughout the continent; they must know not only the actual state of nations in Europe and America,
the situations of their farmers, cottagers, and mechanics, but also the relative situations and intercourse of those
nations. Virginia is as large as England. Our proportion of representatives is but ten men. In England they have five
hundred and fifty-eight. The House of Commons, in England, numerous as they are, we are told, are bribed, and
have bartered away the rights of their constituents: what, then, shall become of us? Will these few protect our rights?
Will they be incorruptible? You say they will be better men than the English commoners. I say they will be infinitely
worse men, because they are to be chosen blindfolded: their election (the term, as applied to their appointment, is
inaccurate) will be an involuntary nomination, and not a choice.
I have, I fear, fatigued the committee; yet I have not said the one hundred thousandth part of what I have on my
mind, and wish to impart. On this occasion, I conceived myself bound to attend strictly to the interest of the state,
and I thought her dearest rights at stake. Having lived so long — been so much honored — my efforts, though small,
are due to my country. I have found my mind hurried on, from subject to subject, on this very great occasion. We
have been all out of order, from the gentleman who opened to-day to myself. I did not come prepared to speak, on so
multifarious a subject, in so general a manner. I trust you will indulge me another time. Before you abandon the
present system, I hope you will consider not only its defects, most maturely, but likewise those of that which you are
to substitute for it. May you be fully apprized of the dangers of the latter, not by fatal experience, but by some abler
advocate than I.
The Dissent of the Minority of the Convention of
Pennsylvania
December 18, 1787
(excerpts)
... The convention met, and the same disposition was soon manifested in considering the proposed constitution, that
had been exhibited in every other stage of the business. We were prohibited by an express vote of the convention,
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from taking any question on the separate articles of the plan, and reduced to the necessity of adopting or rejecting in
toto. Tis true the majority permitted us to debate or each article, but restrained us from proposing amendments. The,
also determined not to permit us to enter on the minutes our reasons, of dissent against any of the articles, nor even
on the final question our reasons of dissent against the whole. Thus situated we entered on the examination of the
proposed system of government, and found it to be such as we could not adopt, without, as we conceived,
surrendering up your dearest rights. We offered our objections to the convention, and opposed those parts of the
plan, which, in our opinion, would be injurious to you, in the best manner we were able; and closed our arguments
by offering the following propositions to the convention.
1. The right of conscience shall be held inviolable; and neither the legislative, executive, nor judicial powers of the
United States shall have authority to alter, abrogate, or infringe any part of the constitution of the several states,
which provide for the preservation of liberty in matters of religion.
2. That in controversies respecting property, and in suits between man and man, trial by jury shall remain as
heretofore, as well in the federal courts, as in those of the several states.
3. That in all capital and criminal prosecutions, a man has a right to demand the cause and nature of his accusation,
as well in the federal courts, as in those of the several states; to be heard by himself and his counsel; to be
confronted with the accusers and witnesses; to call for evidence in his favor, and a speedy trial by an impartial jury
of his vicinage, without whose unanimous consent, he cannot be found guilty, nor can he be compelled to give
evidence against himself; and that no man be deprived of his liberty, except by the law of the land or the judgment
of his peers.
4. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel nor unusual punishments
inflicted.
5. That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to
search suspected places, or to seize any person or persons, his or their property, not particularly described, are
grievous and oppressive, and shall not be granted either by the magistrates of the federal government or others.
6. That the people have a right to the freedom of speech, of writing and publishing their sentiments, therefore, the
freedom of the press shall not be restrained by any law of the United States.
7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States,
or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for
crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are
dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to
and be governed by the civil powers.
8. The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they
hold, and on all other lands in the United States not enclosed, and in like manner to fish in all navigable waters, and
others not private property, without being restrained therein by any laws to be passed by the legislature of the United
States.
9. That no law shall be passed to restrain the legislatures of the several states from enacting laws for imposing taxes,
except imposts and duties on goods imported or exported, and that no taxes, except imposts and duties upon goods
imported and exported, and postage on letters shall be levied by the authority of Congress.
10. That the house of representatives be properly increased in number; that elections shall remain free; that the
several states shall have power to regulate the elections for senators and representatives, without being controlled
either directly or indirectly by an interference on the part of the Congress; and that elections of representatives be
annual.
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11. That the power of organizing, arming, and disciplining the militia (the manner of disciplining the militia to be
prescribed by Congress) remain with the individual states, and that Congress shall not have authority to call or
march any of the militia out of their own state, without the consent of such state, and for such length of time only as
such state shall agree.
That the sovereignty, freedom, and independency of the several states shall be retained, and every power,
jurisdiction, and right which is not by this constitution expressly delegated to the United States in Congress
assembled.
12. That the legislative, executive, and judicial powers be kept separate; and to this end that a constitutional council
be appointed, to advise and assist the president, who shall be responsible for the advice they give, hereby the
senators would be relieved from almost constant attendance; and also that the judges be made completely
independent.
13. That no treaty which shall be directly opposed to the existing laws of the United States in Congress assembled
shall be valid until such laws shall be repealed, or made conformable to such treaty; neither shall any treaties be
valid which are in contradiction to the constitution of the United States, or the constitutions of the several states.
14. That the judiciary power of the United States shall be confined to cases affecting ambassadors, other public
ministers and consuls; to 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 different
states—between citizens claiming lands under grants of different states; and between a state or the citizens thereof
and foreign states, and in criminal cases, to such only as are expressly enumerated in the constitution, and that the
United States in Congress assembled shall not have power to enact laws, which shall alter the laws of descents and
distribution of the effects of deceased persons, the titles of lands or goods, or the regulation of contracts in the
individual states…
Brutus I
October 18, 1787
To the Citizens of the State of New-York.
When the public is called to investigate and decide upon a question in which not only the present members of the
community are deeply interested, but upon which the happiness and misery of generations yet unborn is in great
measure suspended, the benevolent mind cannot help feeling itself peculiarly interested in the result.
In this situation, I trust the feeble efforts of an individual, to lead the minds of the people to a wise and prudent
determination, cannot fail of being acceptable to the candid and dispassionate part of the community. Encouraged by
this consideration, I have been induced to offer my thoughts upon the present important crisis of our public affairs.
Perhaps this country never saw so critical a period in their political concerns. We have felt the feebleness of the ties
by which these United-States are held together, and the want of sufficient energy in our present confederation, to
manage, in some instances, our general concerns. Various expedients have been proposed to remedy these evils, but
none have succeeded. At length a Convention of the states has been assembled, they have formed a constitution
which will now, probably, be submitted to the people to ratify or reject, who are the fountain of all power, to whom
alone it of right belongs to make or unmake constitutions, or forms of government, at their pleasure. The most
important question that was ever proposed to your decision, or to the decision of any people under heaven, is before
you, and you are to decide upon it by men of your own election, chosen specially for this purpose. If the
constitution, offered to your acceptance, be a wise one, calculated to preserve the invaluable blessings of liberty, to
secure the inestimable rights of mankind, and promote human happiness, then, if you accept it, you will lay a lasting
54
foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed. You may
rejoice in the prospects of this vast extended continent becoming filled with freemen, who will assert the dignity of
human nature. You may solace yourselves with the idea, that society, in this favoured land, will fast advance to the
highest point of perfection; the human mind will expand in knowledge and virtue, and the golden age be, in some
measure, realised. But if, on the other hand, this form of government contains principles that will lead to the
subversion of liberty - if it tends to establish a despotism, or, what is worse, a tyrannic aristocracy; then, if you adopt
it, this only remaining assylum for liberty will be shut up, and posterity will execrate your memory.
Momentous then is the question you have to determine, and you are called upon by every motive which should
influence a noble and virtuous mind, to examine it well, and to make up a wise judgment. It is insisted, indeed, that
this constitution must be received, be it ever so imperfect. If it has its defects, it is said, they can be best amended
when they are experienced. But remember, when the people once part with power, they can seldom or never resume
it again but by force. Many instances can be produced in which the people have voluntarily increased the powers of
their rulers; but few, if any, in which rulers have willingly abridged their authority. This is a sufficient reason to
induce you to be careful, in the first instance, how you deposit the powers of government.
With these few introductory remarks, I shall proceed to a consideration of this constitution:
The first question that presents itself on the subject is, whether a confederated government be the best for the United
States or not? Or in other words, whether the thirteen United States should be reduced to one great republic,
governed by one legislature, and under the direction of one executive and judicial; or whether they should continue
thirteen confederated republics, under the direction and controul of a supreme federal head for certain defined
national purposes only?
This enquiry is important, because, although the government reported by the convention does not go to a perfect and
entire consolidation, yet it approaches so near to it, that it must, if executed, certainly and infallibly terminate in it.
This government is to possess absolute and uncontroulable power, legislative, executive and judicial, with respect to
every object to which it extends, for by the last clause of section 8th, article 1st, it is declared "that the Congress
shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing
powers, and all other powers vested by this constitution, in the government of the United States; or in any
department or office thereof." And by the 6th article, it is declared "that this constitution, and the laws of the United
States, which shall be made in pursuance thereof, and the treaties made, or which shall be made, under the authority
of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any
thing in the constitution, or law of any state to the contrary notwithstanding." It appears from these articles that there
is no need of any intervention of the state governments, between the Congress and the people, to execute any one
power vested in the general government, and that the constitution and laws of every state are nullified and declared
void, so far as they are or shall be inconsistent with this constitution, or the laws made in pursuance of it, or with
treaties made under the authority of the United States. - The government then, so far as it extends, is a complete one,
and not a confederation. It is as much one complete government as that of New-York or Massachusetts, has as
absolute and perfect powers to make and execute all laws, to appoint officers, institute courts, declare offences, and
annex penalties, with respect to every object to which it extends, as any other in the world. So far therefore as its
powers reach, all ideas of confederation are given up and lost. It is true this government is limited to certain objects,
or to speak more properly, some small degree of power is still left to the states, but a little attention to the powers
vested in the general government, will convince every candid man, that if it is capable of being executed, all that is
reserved for the individual states must very soon be annihilated, except so far as they are barely necessary to the
organization of the general government. The powers of the general legislature extend to every case that is of the
least importance - there is nothing valuable to human nature, nothing dear to freemen, but what is within its power.
It has authority to make laws which will affect the lives, the liberty, and property of every man in the United States;
nor can the constitution or laws of any state, in any way prevent or impede the full and complete execution of every
power given. The legislative power is competent to lay taxes, duties, imposts, and excises; - there is no limitation to
this power, unless it be said that the clause which directs the use to which those taxes, and duties shall be applied,
may be said to be a limitation: but this is no restriction of the power at all, for by this clause they are to be applied to
pay the debts and provide for the common defence and general welfare of the United States; but the legislature have
authority to contract debts at their discretion; they are the sole judges of what is necessary to provide for the
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common defence, and they only are to determine what is for the general welfare; this power therefore is neither
more nor less, than a power to lay and collect taxes, imposts, and excises, at their pleasure; not only [is] the power to
lay taxes unlimited, as to the amount they may require, but it is perfect and absolute to raise them in any mode they
please. No state legislature, or any power in the state governments, have any more to do in carrying this into effect,
than the authority of one state has to do with that of another. In the business therefore of laying and collecting taxes,
the idea of confederation is totally lost, and that of one entire republic is embraced. It is proper here to remark, that
the authority to lay and collect taxes is the most important of any power that can be granted; it connects with it
almost all other powers, or at least will in process of time draw all other after it; it is the great mean of protection,
security, and defence, in a good government, and the great engine of oppression and tyranny in a bad one. This
cannot fail of being the case, if we consider the contracted limits which are set by this constitution, to the late
[state?] governments, on this article of raising money. No state can emit paper money - lay any duties, or imposts,
on imports, or exports, but by consent of the Congress; and then the net produce shall be for the benefit of the
United States: the only mean therefore left, for any state to support its government and discharge its debts, is by
direct taxation; and the United States have also power to lay and collect taxes, in any way they please. Every one
who has thought on the subject, must be convinced that but small sums of money can be collected in any country, by
direct taxe[s], when the foederal government begins to exercise the right of taxation in all its parts, the legislatures of
the several states will find it impossible to raise monies to support their governments. Without money they cannot be
supported, and they must dwindle away, and, as before observed, their powers absorbed in that of the general
government.
It might be here shewn, that the power in the federal legislative, to raise and support armies at pleasure, as well in
peace as in war, and their controul over the militia, tend, not only to a consolidation of the government, but the
destruction of liberty. - I shall not, however, dwell upon these, as a few observations upon the judicial power of this
government, in addition to the preceding, will fully evince the truth of the position.
The judicial power of the United States is to be vested in a supreme court, and in such inferior courts as Congress
may from time to time ordain and establish. The powers of these courts are very extensive; their jurisdiction
comprehends all civil causes, except such as arise between citizens of the same state; and it extends to all cases in
law and equity arising under the constitution. One inferior court must be established, I presume, in each state, at
least, with the necessary executive officers appendant thereto. It is easy to see, that in the common course of things,
these courts will eclipse the dignity, and take away from the respectability, of the state courts. These courts will be,
in themselves, totally independent of the states, deriving their authority from the United States, and receiving from
them fixed salaries; and in the course of human events it is to be expected, that they will swallow up all the powers
of the courts in the respective states.
How far the clause in the 8th section of the 1st article may operate to do away all idea of confederated states, and to
effect an entire consolidation of the whole into one general government, it is impossible to say. The powers given by
this article are very general and comprehensive, and it may receive a construction to justify the passing almost any
law. A power to make all laws, which shall be necessary and proper, for carrying into execution, all powers vested
by the constitution in the government of the United States, or any department or officer thereof, is a power very
comprehensive and definite [indefinite?], and may, for ought I know, be exercised in a such manner as entirely to
abolish the state legislatures. Suppose the legislature of a state should pass a law to raise money to support their
government and pay the state debt, may the Congress repeal this law, because it may prevent the collection of a tax
which they may think proper and necessary to lay, to provide for the general welfare of the United States? For all
laws made, in pursuance of this constitution, are the supreme lay of the land, and the judges in every state shall be
bound thereby, any thing in the constitution or laws of the different states to the contrary notwithstanding. - By such
a law, the government of a particular state might be overturned at one stroke, and thereby be deprived of every
means of its support.
It is not meant, by stating this case, to insinuate that the constitution would warrant a law of this kind; or
unnecessarily to alarm the fears of the people, by suggesting, that the federal legislature would be more likely to
pass the limits assigned them by the constitution, than that of an individual state, further than they are less
responsible to the people. But what is meant is, that the legislature of the United States are vested with the great and
uncontroulable powers, of laying and collecting taxes, duties, imposts, and excises; of regulating trade, raising and
supporting armies, organizing, arming, and disciplining the militia, instituting courts, and other general powers. And
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are by this clause invested with the power of making all laws, proper and necessary, for carrying all these into
execution; and they may so exercise this power as entirely to annihilate all the state governments, and reduce this
country to one single government. And if they may do it, it is pretty certain they will; for it will be found that the
power retained by individual states, small as it is, will be a clog upon the wheels of the government of the United
States; the latter therefore will be naturally inclined to remove it out of the way. Besides, it is a truth confirmed by
the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to
increase it, and to acquire a superiority over every thing that stands in their way. This disposition, which is
implanted in human nature, will operate in the federal legislature to lessen and ultimately to subvert the state
authority, and having such advantages, will most certainly succeed, if the federal government succeeds at all. It must
be very evident then, that what this constitution wants of being a complete consolidation of the several parts of the
union into one complete government, possessed of perfect legislative, judicial, and executive powers, to all intents
and purposes, it will necessarily acquire in its exercise and operation.
Let us now proceed to enquire, as I at first proposed, whether it be best the thirteen United States should be reduced
to one great republic, or not? It is here taken for granted, that all agree in this, that whatever government we adopt, it
ought to be a free one; that it should be so framed as to secure the liberty of the citizens of America, and such an one
as to admit of a full, fair, and equal representation of the people. The question then will be, whether a government
thus constituted, and founded on such principles, is practicable, and can be exercised over the whole United States,
reduced into one state?
If respect is to be paid to the opinion of the greatest and wisest men who have ever thought or wrote on the science
of government, we shall be constrained to conclude, that a free republic cannot succeed over a country of such
immense extent, containing such a number of inhabitants, and these encreasing in such rapid progression as that of
the whole United States. Among the many illustrious authorities which might be produced to this point, I shall
content myself with quoting only two. The one is the baron de Montesquieu, spirit of laws, chap. xvi. vol. I [book
VIII]. "It is natural to a republic to have only a small territory, otherwise it cannot long subsist. In a large republic
there are men of large fortunes, and consequently of less moderation; there are trusts too great to be placed in any
single subject; he has interest of his own; he soon begins to think that he may be happy, great and glorious, by
oppressing his fellow citizens; and that he may raise himself to grandeur on the ruins of his country. In a large
republic, the public good is sacrificed to a thousand views; it is subordinate to exceptions, and depends on accidents.
In a small one, the interest of the public is easier perceived, better understood, and more within the reach of every
citizen; abuses are of less extent, and of course are less protected." Of the same opinion is the marquis Beccarari.
History furnishes no example of a free republic, any thing like the extent of the United States. The Grecian republics
were of small extent; so also was that of the Romans. Both of these, it is true, in process of time, extended their
conquests over large territories of country; and the consequence was, that their governments were changed from that
of free governments to those of the most tyrannical that ever existed in the world.
Not only the opinion of the greatest men, and the experience of mankind, are against the idea of an extensive
republic, but a variety of reasons may be drawn from the reason and nature of things, against it. In every
government, the will of the sovereign is the law. In despotic governments, the supreme authority being lodged in
one, his will is law, and can be as easily expressed to a large extensive territory as to a small one. In a pure
democracy the people are the sovereign, and their will is declared by themselves; for this purpose they must all
come together to deliberate, and decide. This kind of government cannot be exercised, therefore, over a country of
any considerable extent; it must be confined to a single city, or at least limited to such bounds as that the people can
conveniently assemble, be able to debate, understand the subject submitted to them, and declare their opinion
concerning it.
In a free republic, although all laws are derived from the consent of the people, yet the people do not declare their
consent by themselves in person, but by representatives, chosen by them, who are supposed to know the minds of
their constituents, and to be possessed of integrity to declare this mind.
In every free government, the people must give their assent to the laws by which they are governed. This is the true
criterion between a free government and an arbitrary one. The former are ruled by the will of the whole, expressed
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in any manner they may agree upon; the latter by the will of one, or a few. If the people are to give their assent to the
laws, by persons chosen and appointed by them, the manner of the choice and the number chosen, must be such, as
to possess, be disposed, and consequently qualified to declare the sentiments of the people; for if they do not know,
or are not disposed to speak the sentiments of the people, the people do not govern, but the sovereignty is in a few.
Now, in a large extended country, it is impossible to have a representation, possessing the sentiments, and of
integrity, to declare the minds of the people, without having it so numerous and unwieldly, as to be subject in great
measure to the inconveniency of a democratic government.
The territory of the United States is of vast extent; it now contains near three millions of souls, and is capable of
containing much more than ten times that number. Is it practicable for a country, so large and so numerous as they
will soon become, to elect a representation, that will speak their sentiments, without their becoming so numerous as
to be incapable of transacting public business? It certainly is not.
In a republic, the manners, sentiments, and interests of the people should be similar. If this be not the case, there will
be a constant clashing of opinions; and the representatives of one part will be continually striving against those of
the other. This will retard the operations of government, and prevent such conclusions as will promote the public
good. If we apply this remark to the condition of the United States, we shall be convinced that it forbids that we
should be one government. The United States includes a variety of climates. The productions of the different parts of
the union are very variant, and their interests, of consequence, diverse. Their manners and habits differ as much as
their climates and productions; and their sentiments are by no means coincident. The laws and customs of the
several states are, in many respects, very diverse, and in some opposite; each would be in favor of its own interests
and customs, and, of consequence, a legislature, formed of representatives from the respective parts, would not only
be too numerous to act with any care or decision, but would be composed of such heterogenous and discordant
principles, as would constantly be contending with each other.
The laws cannot be executed in a republic, of an extent equal to that of the United States, with promptitude.
The magistrates in every government must be supported in the execution of the laws, either by an armed force,
maintained at the public expence for that purpose; or by the people turning out to aid the magistrate upon his
command, in case of resistance.
In despotic governments, as well as in all the monarchies of Europe, standing armies are kept up to execute the
commands of the prince or the magistrate, and are employed for this purpose when occasion requires: But they have
always proved the destruction of liberty, and [are] abhorrent to the spirit of a free republic. In England, where they
depend upon the parliament for their annual support, they have always been complained of as oppressive and
unconstitutional, and are seldom employed in executing of the laws; never except on extraordinary occasions, and
then under the direction of a civil magistrate.
A free republic will never keep a standing army to execute its laws. It must depend upon the support of its citizens.
But when a government is to receive its support from the aid of the citizens, it must be so constructed as to have the
confidence, respect, and affection of the people." Men who, upon the call of the magistrate, offer themselves to
execute the laws, are influenced to do it either by affection to the government, or from fear; where a standing army
is at hand to punish offenders, every man is actuated by the latter principle, and therefore, when the magistrate calls,
will obey: but, where this is not the case, the government must rest for its support upon the confidence and respect
which the people have for their government and laws. The body of the people being attached, the government will
always be sufficient to support and execute its laws, and to operate upon the fears of any faction which may be
opposed to it, not only to prevent an opposition to the execution of the laws themselves, but also to compel the most
of them to aid the magistrate; but the people will not be likely to have such confidence in their rulers, in a republic
so extensive as the United States, as necessary for these purposes. The confidence which the people have in their
rulers, in a free republic, arises from their knowing them, from their being responsible to them for their conduct, and
from the power they have of displacing them when they misbehave: but in a republic of the extent of this continent,
the people in general would be acquainted with very few of their rulers: the people at large would know little of their
proceedings, and it would be extremely difficult to change them. The people in Georgia and New-Hampshire would
not know one another’s mind, and therefore could not act in concert to enable them to effect a general change of
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representatives. The different parts of so extensive a country could not possibly be made acquainted with the
conduct of their representatives, nor be informed of the reasons upon which measures were founded. The
consequence will be, they will have no confidence in their legislature, suspect them of ambitious views, be jealous
of every measure they adopt, and will not support the laws they pass. Hence the government will be nerveless and
inefficient, and no way will be left to render it otherwise, but by establishing an armed force to execute the laws at
the point of the bayonet - a government of all others the most to be dreaded.
In a republic of such vast extent as the United-States, the legislature cannot attend to the various concerns and wants
of its different parts. It cannot be sufficiently numerous to be acquainted with the local condition and wants of the
different districts, and if it could, it is impossible it should have sufficient time to attend to and provide for all the
variety of cases of this nature, that would be continually arising.
In so extensive a republic, the great officers of government would soon become above the controul of the people,
and abuse their power to the purpose of aggrandizing themselves, and oppressing them. The trust committed to the
executive offices, in a country of the extent of the United-States, must be various and of magnitude. The command
of all the troops and navy of the republic, the appointment of officers, the power of pardoning offences, the
collecting of all the public revenues, and the power of expending them, with a number of other powers, must be
lodged and exercised in every state, in the hands of a few. When these are attended with great honor and emolument,
as they always will be in large states, so as greatly to interest men to pursue them, and to be proper objects for
ambitious and designing men, such men will be ever restless in their pursuit after them. They will use the power,
when they have acquired it, to the purposes of gratifying their own interest and ambition, and it is scarcely possible,
in a very large republic, to call them to account for their misconduct, or to prevent their abuse of power.
These are some of the reasons by which it appears, that a free republic cannot long subsist over a country of the
great extent of these states. If then this new constitution is calculated to consolidate the thirteen states into one, as it
evidently is, it ought not to be adopted.
Though I am of opinion, that it is a sufficient objection to this government, to reject it, that it creates the whole union
into one government, under the form of a republic, yet if this objection was obviated, there are exceptions to it,
which are so material and fundamental, that they ought to determine every man, who is a friend to the liberty and
happiness of mankind, not to adopt it. I beg the candid and dispassionate attention of my countrymen while I state
these objections - they are such as have obtruded themselves upon my mind upon a careful attention to the matter,
and such as I sincerely believe are well founded. There are many objections, of small moment, of which I shall take
no notice - perfection is not to be expected in any thing that is the production of man - and if I did not in my
conscience believe that this scheme was defective in the fundamental principles - in the foundation upon which a
free and equal government must rest - I would hold my peace.
Brutus VI
December 27, 1787
It is an important questions, whether the general government of the United States should be so framed, as to absorb
and swallow up the state governments? or whether, on the contrary, the former ought not to be confined to certain
defined national objects, while the latter should retain all the powers which concern the internal police of the states?
I have, in my former papers, offered a variety of arguments to prove, that a simple free government could not be
exercised over this whole continent, and that therefore we must either give up our liberties and submit to an arbitrary
one, or frame a constitution on the plan of confederation. Further reasons might be urged to prove this point but it
seems unnecessary, because the principal advocates of the new constitution admit of the position. The question
therefore between us, this being admitted, is, whether or not this system is so formed as either directly to annihilate
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the state governments, or that in its operation it will certainly effect it. If this is answered in the affirmative, then the
system ought not to be adopted, without such amendments as will avoid this consequence. If on the contrary it can
be shewn, that the state governments are secured in their rights to manage the internal police of the respective states,
we must confine ourselves in our enquiries to the organization of the government and the guards and provisions it
contains to prevent a misuse or abuse of power. To determine this question, it is requisite, that we fully investigate
the nature, and the extent of the powers intended to be granted by this constitution to the rulers.
In my last number I called your attention to this subject, and proved, as I think, uncontrovertibly, that the powers
given the legislature under the 8th section of the 1st article, had no other limitation than the discretion of the
Congress. It was shewn, that even if the most favorable construction was given to this paragraph, that the . advocates
for the new constitution could wish, it will convey a power to lay and collect taxes, imposts, duties, and excises,
according to the discretion of the legislature, and to make all laws which they shall judge proper and necessary to
carry this power into execution. This I shewed would totally destroy all the power of the state governments. To
confirm this, it is worthwhile to trace the operation of the government in some particular instances.
The general government is to be vested with authority to levyand collect taxes, duties, and excises; the separate
states have also power to impose taxes, duties, and excises, except that they cannot lay duties on exports and imports
without the consent of Congress. Here then the two governments have concurrent jurisdiction; both may lay
impositions of this kind. But then the general government have supperadded to this power, authority to make all
laws which shall be necessary and proper for carrying the foregoing power into execution. Suppose then that both
governments should lay taxes, duties, and excises, and it should fall so heavy on the people that they would be
unable, or be so burdensome that they would refuse to pay them both-would it not be necessary that the general
legislature should suspend the collection of the state tax? It certainly would. For, if the people could not, or would
not pay both, they must be discharged from the tax to the state, or the tax to the general government could not be
collected.-The conclusion therefore is inevitable, that the respective state governments will not have the power to
raise one shilling in any way, but by the permission of the Congress. I presume no one will pretend, that the states
can exercise legislative authority, or administer justice among their citizens for any length of time, without being
able to raise a sufficiency to pay those who administer their governments.
If this be true, and if the states can raise money only by permission of the general government, it follows that the
state governments will be dependent on the will of the general government for their existence.
What will render this power in Congress effectual and sure in its operation is, that the government will have
complete judicial and executive authority to carry all their laws into effect, which will be paramount to the judicial
and executive authority of the individual states: in vain therefore will be all interference of the legislatures, courts, or
magistrates of any of the states on the subject; for they will be subordinate to the general government, and engaged
by oath to support it, and will be constitutionally bound to submit to their decisions.
The general legislature will be empowered to lay any tax they chuse, to annex any penalties they please to the breach
of their revenue laws; and to appoint as many officers as they may think proper to collect the taxes. They will have
authority to farm the revenues and to vest the farmer general, with his subalterns, with plenary powers to collect
them, in anyway which to them may appear eligible. And the courts of law, which they will be authorized to
institute, will have cognizance of every case arising under the revenue laws, the conduct of all the officers employed
in collecting them; and the officers of these courts will execute their judgments. There is no way, therefore, of
avoiding the destruction of the state governments, whenever the Congress please to do it, unless the people rise up,
and, with a strong hand, resist and prevent the execution constitutional laws. The fear of this, will, it is presumed,
restrain the general government, for some time, within proper bounds; but it will not be many years before they will
have a revenue, and force, at their command, which will place them above any apprehensions on that score.
How far the power to lay and collect duties and excises, may operate to dissolve the state governments, and oppress
the people, it is impossible to say. It would assist us much in forming just opinion on this head, to consider the
various objects to which this kind of taxes extend, in European nations, and the infinity of laws they have passed
respecting them. Perhaps, if liesure will permit, this may be essayed in some future paper.
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It was observed in my last number, that the power to lay and collect duties and excises, would invest the Congress
with authority to impose a duty and excise on every necessary and convenience of life. As the principal object of the
government, in laying a duty or excise, will be, to raise money, it is obvious, that they will fix on such articles as are
of the most general use and consumption; because, unless great quantities of the article, on which the duty is laid, is
used, the revenue cannot be considerable. We may therefore presume, that the articles which will be the object of
this species of taxes will be either the real necessaries of life; or if not these, such as from custom and habit are
esteemed so. I will single out a few of the productions of our own country, which may, and probably will, be of the
number.
Cider is an article that most probably will be one of those on which an excise will be laid, because it is one, which
this country produces in great abundance, which is in very general use, is consumed in great quantities, and which
may be said too not to be a real necessary of life. An excise on this would raise a large sum of money in the United
States. How would the power, to lay and collect an excise on cider, and to pass all laws proper and necessary to
carry it into execution, operate in its exercise? It might be necessary, in order to collect the excise on cider, to grant
to one man, in each county, an exclusive right of building and keeping cider-mills, and oblige him to give bonds and
security for payment of the excise; or, if this was not done, it might be necessary to license the mills, which are to
make this liquor, and to take from them security, to account for the excise; or, otherwise, a great number of officers
must be employed, to take account of the cider made, and to collect the duties on it.
Porter, ale, and all kinds of malt-liquors, are articles that would probably be subject also to an excise. It would be
necessary, in order to collect such an excise, to regulate the manufactory of these, that the quantity made might be
ascertained, or otherwise security could not be had for the payment of the excise. Every brewery must then be
licensed, and officers appointed, to take account of its product, and to secure the payment of the duty, or excise,
before it is sold. Many other articles might be named, which would be objects of this species of taxation, but I
refrain from enumerating them. It will probably be said, by those who advocate this system, that the observations
already made on this head, are calculated only to inflame the minds of the people, with the apprehension of dangers
merely imaginary. That there is not the least reason to apprehend, the general legislature will exercise their power in
this manner. To this I would only say, that these kinds of taxes exist in Great Britain, and are severely felt. The
excise on cider and perry, was imposed in that nation a few years ago, and it is in the memory of everyone, who read
the history of the transaction, what great tumults occasioned.
This power, exercised without limitation, will introduce itself into every corner of the city, and country-It will wait
upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to
the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them
in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his
cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down
all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of
the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it
will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a
constant companion of the industrious farmer in all his labour, it will be with him in the house, and in the field,
observe the toil of his hands, arid the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it
will light upon the head of every person in the United States. To all these different classes of people, and in all these
circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!
A power that has such latitude, which reaches every person in the community in every conceivable circumstance,
and lays hold of every species of property they possess, and which has no bounds set to it, but the discretion of those
who exercise it. I say, such a power must necessarily, from its very nature, swallow up all the power of the state
governments.
I shall add but one other observation on this head, which is this-It appears to me a solecism, for two men, or bodies
of men, to have unlimited power respecting the same object. It contradicts the scripture maxim, which saith, "no
man can serve two masters5the one power or the other must prevail, or else they will destroy each other, and neither
of them effect their purpose. It may be compared to two mechanic powers, acting upon the same body in opposite
directions, the consequence would be, if the powers were equal, the body would remain in a state of rest, or if the
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force of the one was superior to that of the other, the stronger would prevail, and overcome the resistance of the
weaker.
But it is said, by some of the advocates of this system, "That the idea that Congress can levy taxes at pleasure, is
false, and the suggestion wholly unsupported: that the preamble to the constitution is declaratory of the purposes of
the union, and the assumption of any power not necessary to establish justice, &c. to provide for the common
defence, &c. will be unconstitutional. Besides, in the very clause which gives the power of levying duties and taxes,
the purposes to which the money shall be appropriated, are specified, viz. to pay the debts, and provide for the
common defence and general welfare." I would ask those, who reason thus, to define what ideas are included under
the terms, to provide for the common defence and general welfare? Are these terms definite, and will they be
understood in the same manner, and to apply to the same cases by everyone? No one will pretend they will. It will
then be matter of opinion, what tends to the general welfare; and the Congress will be the only judges in the matter.
To provide for the general welfare, is an abstract proposition, which mankind differ in the explanation of as much as
they do on any political or moral proposition that can be proposed; the most opposite measures may be pursued by
different parties, and both may profess, that they have in view the general welfare; and both sides may be honest in
their professions, or both may have sinister views. Those who advocate this new constitution declare, they are
influenced by a regard to the general welfare; those who oppose it, declare they are moved by the same principles;
and I have no doubt but a number on both sides are honest in their professions; and yet nothing is more certain than
this, that to adopt this constitution, and not to adopt it, cannot both of them be promotive of the general welfare.
It is as absurd to say, that the power of Congress is limited by these general expressions, "to provide for the common
safety, and general welfare," as it would be to say, that it would be limited, had the constitution said they should
have power to lay taxes, &c. at will and pleasure. Were this authority given, it might be said, that under it the
legislature could not do injustice, or pursue any measures, but such as were calculated to promote the public good,
and happiness. For every man, rulers as well as others, are bound by the immutable laws of God and reason, always
to will what is right. It is certainly right and fit, that the governors of every people should provide for the common
defence and general welfare; every government, therefore, in the world, even the greatest despot, is limited in the
exercise of his power. But however just this reasoning may be, it would be found, in practice, a most pitiful
restriction. The government would always say, their measures were designed and calculated to promote the public
good; and there being no judge between them and the people, the rulers themselves must, and would always, judge
for themselves.
There are others of the favourers of this system, who admit, that the power of the Congress under it, with respect to
revenue, will exist without limitation, and contend, that so it ought to be. It is said, "The power to raise armies, to
build and equip fleets, and to provide for their support, ought to exist without limitation, because it is impossible to
foresee, or to define, the extent and variety of . national exigencies, or the correspondent extent and variety of the
means which may be necessary to satisfy them."
This, it is said, "is one of those truths which, to correct and unprejudiced minds, carries its own evidence along with
it. It rests upon axioms as simple as they are universal: the means ought to be proportioned to the end; the person,
from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained."
This same writer insinuates, that the opponents to the plan promulgated by the convention, manifests a want of
candor, in objecting to the extent of the powers proposed to be vested in this government; because he asserts, with
an air of confidence, that the powers ought to be unlimited as to the object to which they extend; and that this
position, if not self-evident, is at least clearly demonstrated by the foregoing mode of reasoning. But with
submission to this author’s better judgment, I humbly conceive his reasoning will appear, upon examination, more
specious than solid. The means, says the gentleman, ought to be proportioned to the end: admit the proposition to be
true it is then necessary to enquire, what is the end of the government of the United States, in order to draw any just
conclusions from it. Is this end simply to preserve the general government, and to provide for the common defence
and general welfare of the union only? certainly not: for beside this, the state governments are to be supported, and
provision made for the managing such of their internal concerns as are allotted to them. It is admitted, "that the
circumstances of our country are such, as to demand compound, instead of a simple, a confederate, instead of a sole
government," that the objects of each ought to be pointed out, and that each ought to possess ample authority to
execute the powers committed to them. The government then, being complex in its nature, the end it has in view is
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so also; and it is as necessary, that the state governments should possess the means to attain the ends expected from
them, as for the general government. Neither the general government, nor the state governments, ought to be vested
with all the powers proper to be exercised for promoting the ends of government. The powers are divided between
them-certain ends are to be attained by the one, and other certain ends by the other; and these, taken together,
include all the ends of good government. This being the case, the conclusion follows, that each should be furnished
with the means, to attain the ends, to which they are designed.
To apply this reasoning to the case of revenue; the general government is charged with the care of providing for the
payment of the debts of the United States; supporting the general government, and providing for the defence of the
union. To obtain these ends, they should be furnished with means. But does it thence follow, that they should
command all the revenues of the United States! Most certainly it does not. For if so, it will follow, that no means
will be left to attain other ends, as necessary to the happiness of the country, as those committed to their care. The
individual states have debts to discharge; their legislatures and executives are to be supported, and provision is to be
made for the administration of justice in the respective states. For these objects the general government has no
authority to provide; nor is it proper it should. It is clear then, that the states should have the command of such
revenues, as to answer the ends they have to obtain. To say, "that the circumstances that endanger the safety of
nations are infinite," and from hence to infer, that all the sources of revenue in the states should be yielded to the
general government, is not conclusive reasoning: for the Congress are authorized only to controul in general
concerns, and not regulate local and internal ones; and these are as essentially requisite to be provided for as those.
The peace and happiness of a community is as intimately connected with the prudent direction of their domestic
affairs, and the due administration of justice among themselves, as with a competent provision for their defence
against foreign invaders, and indeed more so.
Upon the whole, I conceive, that there cannot be a clearer position than this, that the state governments ought to
have an uncontroulable power to raise a revenue, adequate to the exigencies of their governments; and, I presume,
no such power is left them by this constitution.
Brutus XI
Brutus
January 31, 1788
The nature and extent of the judicial power of the United States, proposed to be granted by this constitution, claims
our particular attention.
Much has been said and written upon the subject of this new system on both sides, but I have not met with any
writer, who has discussed the judicial powers with any degree of accuracy. And yet it is obvious, that we can form
but very imperfect ideas of the manner in which this government will work, or the effect it will have in changing the
internal police and mode of distributing justice at present subsisting in the respective states, without a thorough
investigation of the powers of the judiciary and of the manner in which they will operate. This government is a
complete system, not only for making, but for executing laws. And the courts of law, which will be constituted by it,
are not only to decide upon the constitution and the laws made in pursuance of it, but by officers subordinate to them
to execute all their decisions. The real effect of this system of government, will therefore be brought home to the
feelings of the people, through the medium of the judicial power. It is, moreover, of great importance, to examine
with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a
situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people
and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by
any power above them, if any such power there be, nor can they be removed from office for making ever so many
erroneous adjudications.
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The only causes for which they can be displaced, is, conviction of treason, bribery, and high crimes and
misdemeanors.
This part of the plan is so modelled, as to authorise the courts, not only to carry into execution the powers expressly
given, but where these are wanting or ambiguously expressed, to supply what is wanting by their own decisions.
That we may be enabled to form a just opinion on this subject, I shall, in considering it,
1st. Examine the nature and extent of the judicial powers - and
2d. Enquire, whether the courts who are to exercise them, are so constituted as to afford reasonable ground of
confidence, that they will exercise them for the general good.
With a regard to the nature and extent of the judicial powers, I have to regret my want of capacity to give that full
and minute explanation of them that the subject merits. To be able to do this, a man should be possessed of a degree
of law knowledge far beyond what I pretend to. A number of hard words and technical phrases are used in this part
of the system, about the meaning of which gentlemen learned in the law differ.
Its advocates know how to avail themselves of these phrases. In a number of instances, where objections are made to
the powers given to the judicial, they give such an explanation to the technical terms as to avoid them.
Though I am not competent to give a perfect explanation of the powers granted to this department of the
government, I shall yet attempt to trace some of the leading features of it, from which I presume it will appear, that
they will operate to a total subversion of the state judiciaries, if not, to the legislative authority of the states.
In article 3d, sect. 2d, it is said, "The judicial power shall extend to all cases in law and equity arising under this
constitution, the laws of the United States, and treaties made, or which shall be made, under their authority, &c."
The first article to which this power extends, is, all cases in law and equity arising under this constitution.
What latitude of construction this clause should receive, it is not easy to say. At first view, one would suppose, that
it meant no more than this, that the courts under the general government should exercise, not only the powers of
courts of law, but also that of courts of equity, in the manner in which those powers are usually exercised in the
different states. But this cannot be the meaning, because the next clause authorises the courts to take cognizance of
all cases in law and equity arising under the laws of the United States; this last article, I conceive, conveys as much
power to the general judicial as any of the state courts possess.
The cases arising under the constitution must be different from those arising under the laws, or else the two clauses
mean exactly the same thing.
The cases arising under the constitution must include such, as bring into question its meaning, and will require an
explanation of the nature and extent of the powers of the different departments under it.
This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the
construction of the constitution, either in law or in equity.
1st. They are authorised to determine all questions that may arise upon the meaning of the constitution in law. This
article vests the courts with authority to give the constitution a legal construction, or to explain it according to the
rules laid down for construing a law. - These rules give a certain degree of latitude of explanation. According to this
mode of construction, the courts are to give such meaning to the constitution as comports best with the common, and
generally received acceptation of the words in which it is expressed, regarding their ordinary and popular use, rather
than their grammatical propriety. Where words are dubious, they will be explained by the context. The end of the
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clause will be attended to, and the words will be understood, as having a view to it; and the words will not be so
understood as to bear no meaning or a very absurd one.
2d. The judicial are not only to decide questions arising upon the meaning of the constitution in law, but also in
equity.
By this they are empowered, to explain the constitution according to the reasoning spirit of it, without being
confined to the words or letter.
"From this method of interpreting laws (says Blackstone) by the reason of them, arises what we call equity;" which
is thus defined by Grotius, "the correction of that, wherein the law, by reason of its universality, is deficient["]; for
since in laws all cases cannot be foreseen, or expressed, it is necessary, that when the decrees of the law cannot be
applied to particular cases, there should some where be a power vested of defining those circumstances, which had
they been foreseen the legislator would have expressed; and these are the cases, which according to Grotius, ["]lex
non exacte definit, sed arbitrio boni viri permittet."
The same learned author observes, "That equity, thus depending essentially upon each individual case, there can be
no established rules and fixed principles of equity laid down, without destroying its very essence, and reducing it to
a positive law."
From these remarks, the authority and business of the courts of law, under this clause, may be understood.
They will give the sense of every article of the constitution, that may from time to time come before them. And in
their decisions they will not confine themselves to any fixed or established rules, but will determine, according to
what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they
may be, will have the force of law; because there is no power provided in the constitution, that can correct their
errors, or controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves,
cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort.
The legislature must be controuled by the constitution, and not the constitution by them. They have therefore no
more right to set aside any judgment pronounced upon the construction of the constitution, than they have to take
from the president, the chief command of the army and navy, and commit it to some other person. The reason is
plain; the judicial and executive derive their authority from the same source, that the legislature do theirs; and
therefore in all cases, where the constitution does not make the one responsible to, or controulable by the other, they
are altogether independent of each other.
The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is
evidently the tendency of the constitution: - I mean, an entire subversion of the legislative, executive and judicial
powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the
nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the
former enlarge the exercise of their powers, will that of the latter be restricted.
That the judicial power of the United States, will lean strongly in favour of the general government, and will give
such an explanation to the constitution, as will favour an extension of its jurisdiction, is very evident from a variety
of considerations.
1st. The constitution itself strongly countenances such a mode of construction. Most of the articles in this system,
which convey powers of any considerable importance, are conceived in general and indefinite terms, which are
either equivocal, ambiguous, or which require long definitions to unfold the extent of their meaning. The two most
important powers committed to any government, those of raising money, and of raising and keeping up troops, have
already been considered, and shewn to be unlimitted by any thing but the discretion of the legislature. The clause
which vests the power to pass all laws which are proper and necessary, to carry the powers given into execution, it
has been shewn, leaves the legislature at liberty, to do every thing, which in their judgment is best. It is said, I know,
that this clause confers no power on the legislature, which they would not have had without it - though I believe this
is not the fact, yet, admitting it to be, it implies that the constitution is not to receive an explanation strictly,
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according to its letter; but more power is implied than is expressed. And this clause, if it is to be considered, as
explanatory of the extent of the powers given, rather than giving a new power, is to be understood as declaring, that
in construing any of the articles conveying power, the spirit, intent and design of the clause, should be attended to,
as well as the words in their common acceptation.
This constitution gives sufficient colour for adopting an equitable construction, if we consider the great end and
design it professedly has in view - these appear from its preamble to be, "to form a more perfect union, establish
justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the
blessings of liberty to ourselves and posterity." The design of this system is here expressed, and it is proper to give
such a meaning to the various parts, as will best promote the accomplishment of the end; this idea suggests itself
naturally upon reading the preamble, and will countenance the court in giving the several articles such a sense, as
will the most effectually promote the ends the constitution had in view - how this manner of explaining the
constitution will operate in practice, shall be the subject of future enquiry.
2d. Not only will the constitution justify the courts in inclining to this mode of explaining it, but they will be
interested in using this latitude of interpretation. Every body of men invested with office are tenacious of power;
they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and
privileges, unimpared to their successors; the same principle will influence them to extend their power, and increase
their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases
where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the
general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and
importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is
highly probable the emolument of the judges will be increased, with the increase of the business they will have to
transact and its importance. From these considerations the judges will be interested to extend the powers of the
courts, and to construe the constitution as much as possible, in such a way as to favour it; and that they will do it,
appears probable.
3d. Because they will have precedent to plead, to justify them in it. It is well known, that the courts in England, have
by their own authority, extended their jurisdiction far beyond the limits set them in their original institution, and by
the laws of the land.
The court of exchequer is a remarkable instance of this. It was originally intended principally to recover the king’s
debts, and to order the revenues of the crown. It had a common law jurisdiction, which was established merely for
the benefit of the king’s accomptants. We learn from Blackstone, that the proceedings in this court are grounded on
a writ called quo minus, in which the plaintiff suggests, that he is the king’s farmer or debtor, and that the defendant
hath done him the damage complained of, by which he is less able to pay the king. These suits, by the statute of
Rutland, are expressly directed to be confined to such matters as specially concern the king, or his ministers in the
exchequer. And by the articuli super cartas, it is enacted, that no common pleas be thenceforth held in the exchequer
contrary to the form of the great charter: but now any person may sue in the exchequer. The surmise of being debtor
to the king being matter of form, and mere words of course; and the court is open to all the nation.
When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act
of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the
constitution expressly against it? and they are authorised to construe its meaning, and are not under any controul?
This power in the judicial, will enable them to mould the government, into almost any shape they please. - The
manner in which this may be effected we will hereafter examine.
Brutus.
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Cato V
Cato
November 22, 1787
New-York Journal of November 22, 1787
To the Citizens of the State of New York,
In my last number I endeavored to prove that the language of the article relative to the establishment of the
executive of this new government was vague and inexplicit, that the great powers of the President, connected with
his duration in office would lead to oppression and ruin. That he would be governed by favorites and flatterers, or
that a dangerous council would be collected from the great officers of state;&$151that the ten miles square, if the
remarks of one of the wisest men, drawn from the experience of mankind, may be credited, would be the asylum of
the base, idle, avaricious and ambitious, and that the court would possess a language and manners different from
yours; that a vice president is as unnecessary, as he is dangerous in his influence—that the president cannot
represent you because he is not of your own immediate choice, that if you adopt this government, you will incline to
an arbitrary and odious aristocracy or monarchy the that the president possessed of the power, given him by this
frame of government differs but very immaterially from the establishment of monarchy in Great-Britain, and I
warned you to beware of the fallacious resemblance that is held out to you by the advocates of this new system
between it and your own state governments.
And here I cannot help remarking, that inexplicitness seems to pervade this whole political fabric: certainty in
political compacts, which Mr. Coke calls the mother and nurse of repose and quietness, the want of which induced
men to engage in political society, has ever been held by a wise and free people as essential to their security; as, on
the one hand it fixes barriers which the ambitious and tyrannically disposed magistrate dare not overleap, and on the
other, becomes a wall of safety to the community—otherwise stipulations between the governors and governed are
nugatory; and you might as well deposit the important powers of legislation and execution in one or a few and
permit them to govern according to their disposition and will; but the world is too full of examples, which prove that
to live by one man’s will became the cause of all men’s misery. Before the existence of express political compacts it
was reasonably implied that the magistrate should govern with wisdom and Justice, but mere implication was too
feeble to restrain the unbridled ambition of a bad man, or afford security against negligence, cruelty, or any other
defect of mind. It is alledged that the opinions and manners of the people of America, are capable to resist and
prevent an extension of prerogative or oppression; but you must recollect that opinion and manners are mutable, and
may not always be a permanent obstruction against the encroachments of government; that the progress of a
commercial society begets luxury, the parent of inequality, the foe to virtue, and the enemy to restraint; and that
ambition and voluptuousness aided by flattery, will teach magistrates, where limits are not explicitly fixed to have
separate and distinct interests from the people, besides it will not be denied that government assimilates the manners
and opinions of the community to it. Therefore, a general presumption that rulers will govern well is not a sufficient
security.—You are then under a sacred obligation to provide for the safety of your posterity, and would you now
basely desert their interests, when by a small share of prudence you may transmit to them a beautiful political
patrimony, that will prevent the necessity of their travelling through seas of blood to obtain that, which your wisdom
might have secured:—It is a duty you owe likewise to your own reputation, for you have a great name to lose; you
are characterised as cautious, prudent and jealous in politics; whence is it therefore, that you are about to precipitate
yourselves into a sea of uncertainty, and adopt a system so vague, and which has discarded so many of your valuable
rights.—Is it because you do not believe that an American can be a tyrant? If this be the case you rest on a weak
basis; Americans are like other men in similar situations, when the manners and opinions of the community are
changed by the causes I mentioned before, and your political compact inexplicit, your posterity will find that great
power connected with ambition, luxury, and flattery, will as readily produce a Caesar, Caligula, Nero, and Domitian
in America, as the same causes did in the Roman empire.
But the next thing to be considered in conformity to my plan, is the first article of this new government, which
comprises the erection of the house of representatives and senate, and prescribes their various powers and objects of
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legislation. The most general objections to the first article, are that biennial elections for representatives are a
departure from the safe democratical principles of annual ones—that the number of representatives are too few; that
the apportionment and principles of increase are unjust; that no attention has been paid to either the numbers or
property in each state in forming the senate; that the mode in which they are appointed and their duration, will lead
to the establishment of an aristocracy; that the senate and president are improperly connected, both as to
appointments, and the making of treaties, which are to become the supreme law of the land; that the judicial in some
measure, to wit, as to the trial of impeachments, is placed in the senate, a branch of the legislative, and some times a
branch of the executive: that Congress have the improper power of making or altering the regulations prescribed by
the different legislatures, respecting the time, place, and manner of holding elections for representatives, and the
time and manner of choosing senators; that standing armies may be established, and appropriation of money made
for their support for two years; that the militia of the most remote state may be marched into those states situated at
the opposite extreme of this continent; that the slave trade is, to all intents and purposes permanently established;
and a slavish capitation, or poll-tax, may at any time be levied—these are some of the many evils that will attend the
adoption of this government.
But with respect to the first objection, it may be remarked that a well digested democracy has this advantage over all
others, to wit, that it affords to many the opportunity to be advanced to the supreme command, and the honors they
thereby enjoy fill them with a desire of rendering themselves worthy of them; hence this desire becomes part of their
education, is matured m manhood, and produces an ardent affection for their country, and it is the opinion of the
great Sidney, and Montesquieu that this is in a great measure produced by annual election of magistrates.
If annual elections were to exist in this government, and learning and information to become more prevalent, you
never will want men to execute whatever you could design—Sidney observes that a well governed state is as fruitful
to all good purposes as the seven headed serpent is said to have been in evil; when one head is cut off, many rise up
in the place of it. He remarks further, that it was also thought, that free cities by frequent elections of magistrates
became nurseries of great and able men, every man endeavoring to excel others, that he might be advanced to the
honor he had no other title to, than what might arise from his merit, or reputation, but the framers of this perfect
government, as it is called, have departed from this democratical principle, and established bi-ennial elections for the
house of representatives, who are to be chosen by the people, and sextennial for the senate, who are to be chosen by
the legislatures of the different states, and have given to the executive the unprecedented power of making
temporary senators, in case of vacancies, by resignation or otherwise, and so far forth establishing a precedent for
virtual representation (though in fact their original appointment is virtual) thereby influencing the choice of the
legislatures, or if they should not be so complaisant as to conform to his appointment—offence will be given to the
executive and the temporary members will appear ridiculous by rejection; this temporary member, during his time of
appointment, will of course act by a power derived from the executive, and for, and under his immediate influence.
It is a very important objection to this government, that the representation consists of so few; too few to resist the
influence of corruption, and the temptation to treachery, against which all governments ought to take precautions—
how guarded you have been on this head, in your own state constitution, and yet the number of senators and
representatives proposed for this vast continent, does not equal those of your own state; how great the disparity, if
you compare them with the aggregate numbers in the United States. The history of representation in England, from
which we have taken our model of legislation, is briefly this: before the institution of legislating by deputies, the
whole free part of the community usually met for that purpose; when this became impossible by the increase of
numbers the community was divided into districts, from each of which was sent such a number of deputies as was a
complete representation of the various numbers and orders of citizens within them; but can it be asserted with truth,
that six men can be a complete and full representation of the numbers and various orders of the people in this state?
Another thing [that] may be suggested against the small number of representatives is, that but few of you will have
the chance of sharing even in this branch of the legislature; and that the choice will be confined to a very few; the
more complete it is, the better will your interests be preserved, and the greater the opportunity you will have to
participate in government, one of the principal securities of a free people; but this subject has been so ably and fully
treated by a writer under the signature of Brutus, that I shall content myself with referring you to him thereon,
reserving further observations on the other objections I have mentioned, for my future numbers.
CATO
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Cato VII
Cato
January 3, 1788
New-York Journal of January 3, 1788 - To the Citizens of the State of New York,
That the senate and president are further improperly connected, will appear, if it is considered, that their dependence
on each other will prevent either from being a check upon the other; they must act in concert, and whether the power
and influence of the one or the other is to prevail, will depend on the character and abilities of the men who hold
those offices at the time. The senate is vested with such a proportion of the executive, that it would be found
necessary that they should be constantly sitting. This circumstance did not escape the convention, and they have
provided for the event, in the 2d article, which declares, that the executive may, on extraordinary occasions, convene
both houses or either of them. No occasion can exist for calling the assembly without the senate; the words or either
of them, must have been intended to apply only to the senate. Their wages are already provided for; and it will be
therefore readily observed, that the partition between a perpetuation of their sessions and a perpetuation of their
offices, in the progress of the government, will be found to be but thin and feeble. Besides, the senate, who have the
sole power to try all impeachments, in case of the impeachment of the president, are to determine, as judges, the
propriety of the advice they gave him, as senators. Can the senate in this, therefore, be an impartial judicature? And
will they not rather serve as a screen to great public defaulters?
Among the many evils that are incorporated in this new system of government, is that of congress having the power
of making or altering the regulations prescribed by the different legislatures, respecting the time, place, and manner
of holding elections for representatives, and the time, and manner of choosing senators. If it is enquired, in what
manner this regulation may be exercised to your injury—the answer is easy.
By the first article the house of representatives shall consist of members, chosen every second year by the people of
the several states, who are qualified to vote for members of their several state assemblies; it can therefore readily be
believed, that the different state legislatures, provided such can exist after the adoption of this government, will
continue those easy and convenient modes for the election of representatives for the national legislature, that are in
use, for the election of members of assembly for their own states; but the congress have, by the constitution, a power
to make other regulations, or alter those in practice, prescribed by your own state legislature; hence, instead of
having the places of elections in the precincts, and brought home almost to your own doors, Congress may establish
a place, or places, at either the extremes, center, or outer parts of the states; at a time and season too, when it may be
very inconvenient to attend; and by these means destroy the rights of election; but in opposition to this reasoning, it
is asserted, that it is a necessary power because the states might omit making rules for the purpose, and thereby
defeat the existence of that branch of the government; this is what logicians call argumentum absurdum, for the
different states, if they will have any security at all in this government, will find it in the house of representatives,
and they, therefore, would not be very ready to eradicate a principle in which it dwells, or involve their country in an
instantaneous revolution. Besides, if this was the apprehension of the framers, and the ground of that provision, why
did not they extend this controlling power to the other duties of the several state legislatures. To exemplify this the
states are to appoint senators and electors for choosing of a president; but the time is to be under the direction of
congress. Now, suppose they were to omit the appointment of senators and electors, though congress was to appoint
the time, which might well be apprehended as the omission of regulations for the election of members of the house
of representatives, provided they had that power; or suppose they were not to meet at all: of course, the government
cannot proceed in its exercise. And from this motive, or apprehension, congress ought to have taken these duties
entirely in their own hands, and, by a decisive declaration, annihilated them, which they in fact have done by leaving
them without the means of support, or at least resting on their bounty. To this, the advocates for this system oppose
the common, empty declamation, that there is no danger that congress will abuse this power, but such language, as
relative to so important a subject, is mere vapour, and sound without sense. Is it not in their power, however, to
make such regulations as may be inconvenient to you? It must be admitted because the words are unlimited in their
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sense. It is a good rule, in the construction of a contract, to support, that what may be done will be; therefore, in
considering this subject, you are to suppose, that in the exercise of this government, a regulation of congress will be
made, for holding an election for the whole state at Poughkeepsie, at New York, or, perhaps, at Fort Stanwix: who
will then be the actual electors for the house of representatives? Very few more than those who may live in the
vicinity of these places. Could any others afford the expense and time of attending? And would not the government
by this means have it in their power to put whom they pleased in the house of representatives? You ought certainly
to have as much or more distrust with respect to the exercise of these powers by congress, than congress ought to
have with respect to the exercise of those duties which ought to be entrusted to the several states, because over them
congress can have a legislative controlling power.
Hitherto we have tied up our rulers in the exercise of their duties by positive restrictions—if the cord has been drawn
too tight, loosen it to the necessary extent, but do not entirely unbind them.—I am no enemy to placing a reasonable
confidence in them but such an unbounded one as the advocates and framers of this new system advise you to,
would be dangerous to your liberties; it has been the ruin of other governments, and will be yours, if you adopt with
all its latitudinal powers—unlimited confidence in governors as well as individuals is frequently the parent of
deception.—What facilitated the corrupt designs of Philip of Macedon, and caused the ruin of Athens, but the
unbounded confidence in their statesmen and rulers? Such improper confidence Demosthenes was so well convinced
had ruined his country, that in his second Philippic oration he remarks—"that there is one common bulwark with
which men of prudence are naturally provided, the guard and security of all people, particularly of free states,
against the assaults of tyrants—What is this? Distrust. Of this be mindful; to this adhere; preserve this carefully, and
no calamity can affect you."—Montesquieu observes, that "the course of government is attended with an insensible
descent to evil, and there is no reascending to good without very great efforts." The plain inference from this
doctrine is, that rulers in all governments will erect an interest separate from the ruled, which will have a tendency to
enslave them. There is therefore no other way of interrupting this insensible descent and warding off the evil as long
as possible, than by establishing principles of distrust in your constituents, and cultivating the sentiment among
yourselves. But let me enquire of you, my countrymen, whether the freedom and independence of elections is a
point of magnitude? If it is, what kind of a spirit of amity, deference and concession, is that which has put in the
power of congress at one stroke to prevent your interference in government, and do away your liberties forever?
Does either the situation or circumstances of things warrant it?
CATO
Centinel I
Permit one of yourselves to put you in mind of certain liberties and privileges secured to you by the constitution of
this commonwealth, and to beg your serious attention to his uninterested opinion upon the plan of federal
government submitted to your consideration before you surrender these great and valuable privileges up forever.
Your present frame of government secures to you a right to hold yourselves, houses, papers and possessions free
from search and seizure, and therefore warrants granted without oaths or affirmations first made, affording sufficient
foundation for them, whereby any officer or messenger may be commanded or required to search your houses or
seize your persons or property, not particularly described in such warrant, shall not be granted. Your constitution
further provides "that in controversies respecting property, and in suits between man and man, the parties have a
right to trial by jury, which ought to be held sacred." It also provides and declares, "that the people have a right of
FREEDOM OF SPEECH, and of WRITING PUBLISHING their sentiments, therefore THE FREEDOM OF THE
PRESS OUGHT NOT TO BE RESTRAINED." The constitution of Pennsylvania is yet in existence, as yet you have
the right to freedom of speech, and of publishing your sentiments How long those rights will appertain to you, you
yourselves are called upon to say. Whether your houses shall continue to be your castles, whether your papers, your
persons and your property, are to be held sacred and free from general warrants you are now to determine. Whether
the trial by jury is to continue as your birthright, the freemen of Pennsylvania, nay, all of America, are now called
upon to declare.
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Without presuming upon my own judgment, I cannot think it an unwarrantable presumption to offer my private
opinion, and call upon others for theirs, and if I use my pen with the boldness of a freeman, it is because I know that
the liberty of the press yet remains unviolated, and juries yet are judges.
The late Convention have submitted to your consideration a plan of a new federal government. The subject is highly
interesting to your future welfare. Whether it be calculated to promote the great ends of civil society, viz., the
happiness and prosperity of the community, it behooves you well to consider, uninfluenced by the authority of
names, instead of that frenzy of enthusiasm that has actuated the citizens of Philadelphia in their approbation of the
proposed plan, before it was possible that it could be the result of a rational investigation into its principles. It ought
to be dispassionately and deliberately examined, and its own intrinsic merit the only criterion of your patronage. If
ever free and unbiased discussion was proper or necessary, it is on such an occasion. All the blessings of liberty and
the dearest privileges of freemen are now at stake and dependent on your present conduct. Those who are competent
to the task of developing the principles of government ought to be encouraged to come forward, and thereby the
better enable the people to make a proper judgment; for the science of government is so abstruse that few are able to
judge for themselves. Without such assistance the people are too apt to yield an implicit assent to the opinions of
those characters, whose abilities are held in the highest esteem, and to those in whose integrity and patriotism they
can confide, not considering that the love of domination is generally in proportion to talents, abilities, and superior
acquirements, and that the men of the greatest purity of intention may be made instruments of despotism in the
hands of the artful and designing. If it were not for the stability and attachment which time and habit gives to forms
of government, it would be in the power of the enlightened and aspiring few if they should combine at any time to
destroy the best establishments, and even make the people the instruments of their own subjugation.
The late revolution having effaced in a great measure all former habits and the present institutions are so recent that
there exists not that great reluctance to innovation, so remarkable in old communities, and which accords with
reason, for the most comprehensive mind cannot foresee the full operation of material changes on civil polity; it is
the genius of the common law to resist innovation.
The wealthy and ambitious, who in every community think they have a right to lord it over their fellow creatures,
have availed themselves very successfully of this favorable disposition; for the people thus unsettled in their
sentiments have been prepared to accede to any extreme of government. All the distresses and difficulties they
experience, proceeding from various causes, have been ascribed to the impotency of the present confederation, and
thence they have been led to expect full relief from the adoption of the proposed system of government, and in the
other event, immediately ruin and annihilation as a nation. These characters flatter themselves that they have lulled
all distrust and jealousy of their new plan by gaining the concurrence of the two men in whom America has the
highest confidence (George Washington and Benjamin Franklin), and now triumphantly exult in the completion of
their long meditated schemes of power and aggrandizement. would be very far from insinuating that the two
illustrious personages alluded to have not the welfare of their country at heart, but that the unsuspecting goodness
and zeal of the one has been imposed on in a subject of which he must be necessarily inexperienced from his other
arduous engagements; and that the weakness and indecision attendant on old age, has been practiced on in the other.
I am fearful that the principles of government inculcated in Mr. Adams' treatise, and enforced in the numerous
essays and paragraphs in the newspapers have misled some well designing members of the late Convention. But it
will appear in the sequel that the construction of the proposed plan of government is infinitely more extravagant.
I have been anxiously expecting that some enlightened patriot would, ere this, have taken up the pen to expose the
futility and counteract the baneful tendency of such principles. Mr. Adams' sine qua non of a good government is
three balancing powers, whose repelling qualities are to produce an equilibrium of interests, and thereby promote the
happiness of the whole community. He asserts that the administrators of every government will ever be actuated by
views of private interest and ambition to the prejudice of the public good; that therefore the only effectual method to
secure the rights of the people and promote their welfare is to create an opposition of interests between the members
of two distinct bodies in the exercise of the powers of government and balanced by those of a third. This hypothesis
supposes human wisdom competent to the task of instituting three co-equal orders in government, and a
corresponding weight in the community to enable them respectively to exercise their several parts, and whose views
and interests should be so distinct as to prevent a coalition of any two of them for the destruction of the third. Mr.
Adams, although he has traced the constitution of every form of government that ever existed as far as history
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affords materials, has not been able to adduce a single instance of such a government; he indeed says that the British
constitution is such in theory, but this is rather a confirmation that his principles are chimerical and not to be reduced
to practice. If such an organization of power were practicable, how long would it continue? Not a day, for there is so
great a disparity in the talents, wisdom and industry of mankind, that the scale would presently preponderate to one
or the other body and with every accession of power the means of further increase would be greatly extended. The
state of society in England is much more favorable to such a scheme of government than that of America. There they
have a powerful hereditary nobility, and real distinctions of rank and interests, but even there, for want of that
perfect equality of power and distinction of interests in the three orders of government they exist but in name; the
only operative and efficient check upon the conduct of administration is the sense of the people at large.
Suppose a government could be formed and supported on such principles, would it answer the great purposes of
civil society? If the administrators of every government are actuated by views of private interest and ambition, how
is the welfare and happiness of the community to be the result of such jarring adverse interests?
Therefore, as different orders in government will not produce the good of the whole, we must recur to other
principles. I believe it will be found that the form of government which holds those entrusted with power in the
greatest responsibility to their constituents the best calculated for freemen. A republican or free government can only
exist where the body of the people are virtuous and where property is pretty equally divided; in such a government
the people are the sovereign and their sense or opinion is the criterion of every public measure. When this ceases to
be the case, the nature of the government is changed, and an aristocracy, monarchy or despotism will rise on its ruin.
The highest responsibility is to be attained in a simple structure of government, for the great body of the people
never steadily attend to the operations of government and for want of due information are liable to be imposed on. If
you complicate the plan by various orders, the people will be perplexed and divided in their sentiments about the
source of abuses or misconduct; some will impute it to the senate, others to the house of representatives, and so on,
that the interposition of the people may be rendered imperfect or perhaps wholly abortive. But if imitating the
constitution of Pennsylvania, you vest all the legislative power in one body of men (separating the executive and
judicial) elected for a short period, and necessarily excluded by rotation from permanency, and guarded from
precipitancy and surprise by delays imposed on its proceedings, you will create the most perfect responsibility, for
then whenever the people feel a grievance they cannot mistake the authors and will apply the remedy with certainty
and effect, discarding them at the next election. This tie of responsibility will obviate all the dangers apprehended
from a single legislature, and will the best secure the rights of the people.
Having premised this much, I shall now proceed to the examination of the proposed plan of government, and I trust,
shall make it appear to the meanest capacity, that it has none of the essential requisites of a free government; that it
is neither founded on those balancing restraining powers recommended by Mr. Adams and attempted in the British
constitution, nor possessed of that responsibility to its constituents which, in my opinion, is the only effectual
security for the liberties and happiness of the people, but, on the contrary, that it is the most daring attempt to
establish a despotic aristocracy among freemen, that the world has ever witnessed.
I shall previously consider the extent of the powers intended to be vested in Congress, before I examine the
construction of the general government.
It will not be controverted that the legislative is the highest delegated power in government, and that all others are
subordinate to it. The celebrated Montesquieu establishes it as a maxim, that legislation necessarily follows the
power of taxation. By sect. 8, of the first article of the proposed plan of government, "the Congress are to have
power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and
general welfare of the United States, but all duties, imposts and excises, shall be uniform throughout the United
States." Now what can be more comprehensive than these words; not content by other sections of this plan, to grant
all the great executive powers of a confederation, and a STANDING ARMY IN TIME OF PEACE, that grand
engine of oppression, and moreover the absolute control over the commerce of the United States and all external
objects of revenue, such as unlimited imposts upon imports, etc. they are to be vested with every species of internal
taxation; whatever taxes, duties and excises that they may deem requisite for the general welfare, may be imposed
on the citizens of these states, levied by the officers of Congress, distributed through every district in America; and
the collection would be enforced by the standing army, however grievous or improper they may be. The Congress
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may construe every purpose for which the state legislatures now lay taxes, to be for the general welfare, and thereby
seize upon every object of revenue.
The judicial power by 1st sect. of article 3 "shall extend to all cases, in law and equity, arising under this
constitution, the laws of the United States, and treaties made or which shall be made under their authority; to all
cases affecting ambassadors, other public ministers and consuls; to all cases of admirality and maritime jurisdiction,
to controversies to which the United States shall be a party, to controversies between two or more states, between a
state and citizens of another state, between citizens of different states, between citizens of the same state claiming
lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or
subjects."
The judicial power to be vested in one Supreme Court, and in such Inferior Courts as the Congress may from time to
time ordain and establish.
The objects of jurisdiction recited above, are so numerous, and the shades of distinction between civil causes are
oftentimes so slight, that it is more than probable that the state judicatories would be wholly superceded; for in
contests about jurisdiction, the federal court, as the most powerful, would ever prevail. Every person acquainted
with The history of the courts in England, knows by what ingenious sophisms they have, at different periods,
extended the sphere of Their jurisdiction over objects out of the line of their institution, and contrary to their very
nature; courts of a criminal jurisdiction obtaining cognizance in civil causes.
To put the omnipotency of Congress over the state government and judicatories out of all doubt, the 6th article
ordains that "this constitution and the laws of the United States which shall be made in pursuance thereof, and all
treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land,
and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary
notwithstanding."
By these sections the all-prevailing power of taxation, and such extensive legislative and judicial powers are vested
in the general government, as must in their operation, necessarily absorb the state legislatures and judicatories; and
that such was in the contemplation of the framers of it, will appear from the provision made for such event, in
another part of it; (but that, fearful of alarming the people by so great an innovation, they have suffered the forms of
the separate governments to remain, as a blind.) By sect. 4th of the 1st article, "the times, places and manner of
holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the
Congress may at any time, by law, make or alter such regulations, except as to the place of chusing senators." The
plain construction of which is, that when the state legislatures drop out of sight, from the necessary operation this
government, then Congress are to provide for the election and appointment of representatives and senators.
If the foregoing be a just comment if the United States are to be melted down into one empire, it becomes you to
consider, whether such a government, however constructed, would be eligible in so extended a territory; and
whether it would be practicable, consistent with freedom? It is the opinion of the greatest writers, that a very
extensive country cannot be governed on democratical principles, on any other plan, than a confederation of a
number of small republics, possessing all the powers of internal government, but united in the management of their
foreign and general concerns.
It would not be difficult to prove, that any thing short of despotism, could not bind so great a country under one
government; and that whatever plan you might, at the first setting out, establish, it would issue in a despotism.
If one general government could be instituted and maintained on principles of freedom, it would not be so competent
to attend to the various local concerns and wants, of every particular district, as well as the peculiar governments,
who are nearer the scene, and possessed of superior means of information, besides, if the business of the whole
union is to be managed by one government, there would not be time. Do we not already see, that the inhabitants in a
number of larger states, who are remote from the seat of government, are loudly complaining of the inconveniencies
and disadvantages they are subjected to on this account, and that, to enjoy the comforts of local government, they
are separating into smaller divisions.
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Having taken a review of the powers, I shall now examine the construction of the proposed general government.
Art. 1. Sect. 1. "All legislative powers herein granted shall be vested in a Congress of the United States, which shall
consist of a senate and house of representatives." By another section? the president (the principal executive officer)
has a conditional control over their proceedings.
Sect. 2. "The house of representatives shall be composed of members chosen every second year, by the people of the
several states. The number of representatives shall not exceed one for every 30,000 inhabitants."
The senate, the other constituent branch of the legislature, is formed by the legislature of each state appointing two
senators, for the term of six years.
The executive power by Art. 2, Sect. 1. is to be vested in a president of the United States of America, elected for
four years: Sect. 2. gives him "power, by and with the consent of the senate to make treaties, provided two thirds of
the senators present concur; and he shall nominate, and by and with the advice and consent of the senate, shall
appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the
United States, whose appointments are not herein otherwise provided for, and which shall be established by law,"
etc. And by another section he has the absolute power of granting reprieves and pardons for treason and all other
high crimes and misdemeanors, except in case of impeachment.
The foregoing are the outlines of the plan.
Thus we see, the house of representatives, are on the part of the people to balance the senate, who I suppose will be
composed of the better sort, the well born, etc. The number of the representatives (being only one for every 30,000
inhabitants) appears to be too few, either to communicate the requisite information, of the wants, local
circumstances and sentiments of so extensive an empire, or to prevent corruption and undue influence, in the
exercise of such great powers; the term for which they are to be chosen, too long to preserve a due dependence and
accountability to their constituents; and the mode and places of their election not sufficiently ascertained, for as
Congress have the control over both, they may govern the choice, by ordering the representatives of a whole state, to
be elected in one place, and that too may be the most inconvenient.
The senate, the great efficient body in this plan of government, is constituted on the most unequal principles. The
smallest state in the union has equal weight with the great states of Virginia Massachusetts, or Pennsylvania The
Senate, besides its legislative functions, has a very considerable share in the Executive; none of the principal
appointments to office can be made without its advice and consent. The term and mode of its appointment, will lead
to permanency; the members are chosen for six years, the mode is under the control of Congress, and as there is no
exclusion by rotation, they may be continued for life, which, from their extensive means of influence, would follow
of course. The President, who would be a mere pageant of state, unless he coincides with the views of the Senate,
would either become the head of the aristocratic junto in that body, or its minion, besides, their influence being the
most predominant, could the best secure his re-election to office. And from his power of granting pardons, he might
skreen from punishment the most treasonable attempts on liberties of the people, when instigated by the Senate.
From this investigation into the organization of this government, it appears that it is devoid of all responsibility or
accountability to the great body of the people, and that so far from being a regular balanced government, it would be
in practice a permanent ARISTOCRACY.
The framers of it, actuated by the true spirit of such a government, which ever abominates and suppresses all free
enquiry and discussion, have made no provision for the liberty of the press that grand palladium of freedom, and
scourge of tyrants, but observed a total silence on that head. It is the opinion of some great writers, that if the liberty
of the press, by an institution of religion, or otherwise, could be rendered sacred, even in Turkey, that despotism
would fly before it. And it is worthy of remark, that there is no declaration of personal rights, premised in most free
constitutions; and that trial by jury in civil cases is taken away; for what other construction can be put on the
following, viz. Article m. Sect 2d. "In all cases affecting ambassadors, other public ministers and consuls, and those
in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases above
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mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact? " It would be a novelty in
jurisprudence, as well as evidently improper to allow an appeal from the verdict of a jury, on the matter of fact;
therefore, it implies and allows of a dismission of the jury in civil cases, and especially when it is considered, that
jury trial in criminal cases is expresly stipulated for, but not in civil cases.
But our situation is represented to be so critically dreadful that, however reprehensible and exceptionable the
proposed plan of government may be, there is no alternative, between the adoption of it and absolute ruin. My
fellow citizens, things are not at that crisis, it is the argument of tyrants; the present distracted state of Europe
secures us from injury on that quarter, and as to domestic dissensions, we have not so much to fear from them, as to
precipitate us into this form of government, without it is a safe and a proper one. For remember, of all possible evils
that of despotism is the worst and the most to be dreaded.
Besides, it cannot be supposed, that the first essay on so difficult a subject, is so well digested, as it ought to be, if
toe proposed plan, after a mature deliberation, should meet the approbation of the respective States, the matter will
end, but if it should be found to be fraught with dangers and inconveniencies, a future general Convention being in
possession of the objections, will be the better enabled to plan a suitable government.
Who's here so base, that would a bondsman be?
If any, speak; for him have I offended.
Who's here so vile, that will not love his country?
If any, speak; for him have I offended.
[Julius Caesar, Act 3, Scene 2 ]
Centinel.
John DeWitt II
John DeWitt
October 27, 1787
To the Free Citizens of the Commonwealth of Massachusetts.
In my last address upon the proceedings of the Federal Convention I endeavored to convince you of the importance
of the subject, that it required a cool, dispassionate examination, and a thorough investigation, previous to its
adoption—that it was not a mere revision and amendment of our first Confederation, but a compleat System for the
future government of the United States, and I may now add in preference to, and in exclusion of, all others
heretofore adopted.—It is not TEMPORARY, but in its nature, PERPETUAL. —It is not designed that you shall be
annually called, either to revise, correct, or renew it; but, that your posterity shall grow up under, and be governed
by it, as well as ourselves.—It is not so capable of alterations as you would at the first reading suppose; and I
venture to assert, it never can be, unless by force of arms. The fifth article in the proceedings, it is true, expressly
provides for an alteration under certain conditions, whenever "it shall be ratified by the Legislatures of three fourths
of the several States, or by Conventions in three fourths thereof, as the one or the other mode of ratification may be
proposed by Congress."—Notwithstanding which, such are the "heterogeneous materials from which this System
was formed," such is the difference of interest, different manners, and different local prejudices, in the different parts
of the United States, that to obtain that majority of three fourths to any one single alteration, essentially affecting this
or any other State, amounts to an absolute impossibility. The conduct of the Delegates in dissolving the Convention,
plainly speaks this language, and no other. ——Their sentiments in their Letter to his Excellency the President of
Congress are—That this Constitution was the result of a spirit of amity—that the parties came together disposed to
concede as much as possible each to the other—that mutual concessions and compromises did, in fact, take place,
and all those which could, consistent with the peculiarity of their political situation. Their dissolution enforces the
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same sentiment, by confining you to the alternative of taking or refusing their doings in the gross. In this view, who
is there to be found among us, who can seriously assert, that this Constitution, after ratification and being practiced
upon, will be so easy of alteration? Where is the probability that a future Convention, in any future day, will be
found possessed of a greater spirit of amity and mutual concession than the present? Where is the probability that
three fourths of the States in that Convention, or three fourths of the Legislatures of the different States, whose
interests differ scarcely in nothing short of every thing, will be so very ready or willing materially to change any part
of this System, which shall be to the emolument of an individual State only? No, my fellow—citizens, as you are
now obliged to take it in the whole, so you must hereafter administer it in whole, without the prospect of change,
unless by again reverting to, a state of Nature, which will be ever opposed with success by those who approve of the
Government in being.
That the want of a Bill of Rights to accompany this proposed System, is a solid objection to it, provided there is
nothing exceptionable in the System itself, I do not assert.—If, however, there is at any time, a propriety in having
one, it would not have been amiss here. A people, entering into society, surrender such a part of their natural rights,
as shall be necessary for the existence of that society. They are so precious in themselves, that they would never be
parted with, did not the preservation of the remainder require it. They are entrusted in the hands of those, who are
very willing to receive them, who are naturally fond of exercising of them, and whose passions are always striving
to make a bad use of them.—They are conveyed by a written compact, expressing those which are given up, and the
mode in which those reserved shall be secured. Language is so easy of explanation, and so difficult is it by words to
convey exact ideas, that the party to be governed cannot be too explicit. The line cannot be drawn with too much
precision and accuracy. The necessity of this accuracy and this precision encreases in proportion to the greatness of
the sacrifice and the numbers who make it.—That a Constitution for the United States does not require a Bill of
Rights, when it is considered, that a Constitution for an individual State would, I cannot conceive.—The difference
between them is only in the numbers of the parties concerned they are both a compact between the Governors and
Governed the letter of which must be adhered to in discussing their powers. That which is not expressly granted, is
of course retained.
The Compact itself is a recital upon paper of that proportion of the subject’s natural rights, intended to be parted
with, for the benefit of adverting to it in case of dispute. Miserable indeed would be the situation of those individual
States who have not prefixed to their Constitutions a Bill of Rights, if, as a very respectable, learned Gentleman at
the Southward observes, "the People, when they established the powers of legislation under their separate
Governments, invested their Representatives with every right and authority which they did not, in explicit terms,
reserve; and therefore upon every question, respecting the jurisdiction of the House of Assembly, if the Frame of
Government is silent, the jurisdiction of the House of Assembly, if the Frame of Government is silent, the
jurisdiction is efficient and complete." 1 In other words, those powers which the people by their Constitutions
expressly give them; they enjoy by positive grant, and those remaining ones, which they never meant to give them,
and which the Constitutions say nothing about, they enjoy by tacit implication, so that by one means and by the
other, they became possessed of the whole.—This doctrine is but poorly calculated for the meridian of America,
where the nature of compact, the mode of construing them, and the principles upon which society is founded, are so
accurately known and universally diffused. That insatiable thirst for unconditional controul over our fellow—
creatures, and the facility of sounds to convey essentially different ideas, produced the first Bill of Rights ever
prefixed to a Frame of Government. The people, although fully sensible that they reserved every tittle of power they
did not expressly grant away, yet afraid that the words made use of, to express those rights so granted might convey
more than they originally intended, they chose at the same moment to express in different language those rights
which the agreement did not include, and which they never designed to part with, endeavoring thereby to prevent
any cause for future altercation and the intrusion into society of that doctrine of tacit implication which has been the
favorite theme of every tyrant from the origin of all governments to the present day.
The proceedings of the Convention are now handed to you by your Legislature, and the second Wednesday in
January is appointed for your final answer. To enable you to give that with propriety; that your future reflections
may produce peace, however opposed the present issue of your present conduct may be to your present expectations,
you must determine, that, in order to support with dignity the Federal Union, it is proper and fit, that the present
Confederation shall be annihilated: —— That the future Congress of the United States shall be armed with the
powers of Legislation, Judgment and Execution.—That annual elections in this Congress shall not be known, and
the most powerful body, the Senate, in which a due proportion of representation is not preserved, and in which the
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smallest State has equal weight with the largest, be the longest in duration:—That it is not necessary for the public
good, that persons habituated to the exercise of power should ever be reminded from whence they derive it, by a
return to the station of private citizens, but that they shall at all times at the expiration of the term for which they
were elected to an office, be capable of immediate re—election to that same office:—That you will hereafter risk the
probability of having the Chief Executive Branch chosen from among you; and that it is wholly indifferent, both to
you and your children after you, whether this future Government shall be administered within the territories of your
own State, or at the distance of four thousand miles from them.—You must also determine, that they shall have the
exclusive power of imposts and the duties on imports and exports, the power of laying excises and other duties, and
the additional power of laying internal taxes upon your lands, your goods, your chattels, as well as your persons at
their sovereign pleasure:—That the produce of these several funds shall be appropriated to the use of the United
States, and collected by their own officers, armed with a military force, if a civil aid should not prove sufficient: —
that the power of organizing, arming and disciplining the militia shall be lodged in them, and this through fear that
they shall not be sufficiently attentive to keeping so respectable a body of men as the yeomanry of this
Commonwealth, compleatly armed, organized and disciplined; they shall have also the power of raising, supporting
and establishing a standing army in time of peace in your several towns, and I see not why in your several houses:—
That should an insurrection or an invasion, however small, take place, in Georgia, the extremity of the Continent, it
is highly expedient they should have the power of suspending the writ of Habeas Corpus in Massachusetts, and as
long as they shall judge the public safety requires it:—You must also say, that your present Supreme Judicial Court
shall be an Inferior Court to a Continental Court, which is to be inferior to the Supreme Court of the United States:
—that from an undue bias which they are supposed to have for the citizens of their own States, they shall not be
competent to determine title to your real estate, disputes which may arise upon a protested Bill of Exchange, a
simple note of hand, or book debt, wherein your citizens shall be unfortunately involved with disputes of such or any
other kind, with citizens either of other States or foreign States: In all such cases they shall have a right to carry their
causes to the Supreme Court of the United States, whether for delay only or vexation; however distant from the
place of your abode, or inconsistent with your circumstances:—That such appeals shall be extended to matters of
fact as well as law, and a trial of the cause by jury you shall not have a right to insist upon. —— In short, my
fellow—citizens, previous to a capacity of giving a compleat answer to these proceedings, you must determine that
the Constitution of your Commonwealth, which is instructive, beautiful and consistent in practice, which has been
justly admired in Europe, as a model of perfection, and which the present Convention have affected to imitate, a
Constitution which is especially calculated for your territory, and is made conformable to your genius, your habits,
the mode of holding your estates, and your particular interests, shall be reduced in its powers to those of a City
Corporation:—The skeleton of it may remain, but its vital principle shall be transferred to the new Government:
Nay, you must go still further, and agree to invest the new Congress with powers, which you have yet thought
proper to withhold from your own present Government. —All these, and more, which are contained in the
proceedings of the Federal Convention, may be highly proper and necessary.—In this overturn of all individual
governments, in this new—fashioned set of ideas, and in this total dereliction of those sentiments which animated us
in 1775, the Political Salvation of the United States may be very deeply interested, but BE CAUTIOUS.
John DeWitt
Republicus - On the Electoral College;
On ReEligibility of the President
By an anonymous writer "REPUBLICUS," appearing in The Kentucky Gazette on March 1, 1788.
. . I go now to Art. 2, Sec. 1, which vest the supreme continental executive power in a president-in order to the
choice of whom, the legislative body of each state is empowered to point out to their constituents some mode of
choice, or (to save trouble) may choose themselves, a certain number of electors, who shall meet in their respective
states, and vote by ballot, for two persons, one of whom, at least, shall not be an inhabitant of the same state with
themselves. Or in other words, they shall vote for two, one or both of whom they know nothing of. An extraordinary
refinement this, on the plain simple business of election; and of which the grand convention have certainly the honor
of being the first inventors; and that for an officer too, of so much importance as a president - invested with
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legislative and executive powers; who is to be commander in chief of the army, navy, militia, etc.; grant reprieves
and pardons; have a temporary negative on all bills and resolves; convene and adjourn both houses of congress; be
supreme conservator of laws; commission all officers; make treaties; and who is to continue four years, and is only
removable on conviction of treason or bribery, and triable only by the senate, who are to be his own council, whose
interest in every instance runs parallel with his own, and who are neither the officers of the people, nor accountable
to them.
Is it then become necessary, that a free people should first resign their right of suffrage into other hands besides their
own, and then, secondly, that they to whom they resign it should be compelled to choose men, whose persons,
characters, manners, or principles they know nothing of? And, after all (excepting some such change as is not likely
to happen twice in the same century) to intrust Congress with the final decision at last? Is it necessary, is it rational,
that the sacred rights of mankind should thus dwindle down to Electors of electors, and those again electors of other
electors? This seems to be degrading them even below the prophetical curse denounced by the good old patriarch, on
the offspring of his degenerate son: "servant of servants". . .
Again I would ask (considering how prone mankind are to engross power, and then to abuse it) is it not probable, at
least possible, that the president who is to be vested with all this demiomnipotence - who is not chosen by the
community; and who consequently, as to them, is irresponsible and independent-that he, I say, by a few artful and
dependent emissaries in Congress, may not only perpetuate his own personal administration, but also make it
hereditary? By the same means, he may render his suspensive power over the laws as operative and permanent as
that of G. the 3d over the acts of the British parliament; and under the modest title of president, may exercise the
combined authority of legislation and execution, in a latitude yet unthought of. Upon his being invested with those
powers a second or third time, he may acquire such enormous influence-as, added to his uncontrollable power over
the army, navy, and militia; together with his private interest in the officers of all these different departments, who
are all to be appointed by himself, and so his creatures, in the true political sense of the word; and more especially
when added to all this, he has the power of forming treaties and alliances, and calling them to his assistance-that he
may, I say, under all these advantages and almost irresistible temptations, on some pretended pique, haughtily and
contemptuously, turn our poor lower house (the only shadow of liberty we shall have left) out of doors, and give us
law at the bayonet's point. Or, may not the senate, who are nearly in the same situation, with respect to the people,
from similar motives and by similar means, erect themselves easily into an oligarchy, towards which they have
already attempted so large a stride? To one of which channels, or rather to a confluence of both, we seem to be fast
gliding away; and the moment we arrive at it-farewell liberty. . . .
To conclude, I can think of but one source of right to government, or any branch of it-and that is THE PEOPLE.
They, and only they, have a right to determine whether they will make laws, or execute them, or do both in a
collective body, or by a delegated authority. Delegation is a positive actual investiture. Therefore if any people are
subjected to an authority which they have not thus actually chosen-even though they may have tamely submitted to
it-yet it is not their legitimate government. They are wholly passive, and as far as they are so, are in a state of
slavery. Thank heaven we are not yet arrived at that state. And while we continue to have sense enough to discover
and detect, and virtue enugh to detest and oppose every attempt, either of force or fraud, either from without or
within, to bring us into it, we never will.
Let us therefore continue united in the cause of rational liberty. Let unity and liberty be our mark as well as our
motto. For only such an union can secure our freedom; and division will inevitably destroy it. Thus a mountain of
sand may peace meal [sic] be removed by the feeble hands of a child; but if consolidated into a rock, it mocks the
united efforts of mankind, and can only fall in a general wreck of nature.
REPUBLICUS
78
Introduction
to the
Federalist
by Professor
Gordon Lloyd
Origin of The Federalist
The eighty-five essays
appeared in one or more of
the following four New
York newspapers: 1) The
New York Journal, edited
by Thomas Greenleaf, 2)
Independent Journal, edited
by John McLean, 3) New
York Advertiser, edited by
Samuel and John Loudon,
and 4) Daily Advertiser,
edited by Francis Childs.
Initially, they were intended
to be a twenty essay
response to the
Antifederalist attacks on the
Constitution that were
flooding the New York
newspapers right after the
Constitution had been
signed in Philadelphia on
September 17, 1787. The
Cato letters started to
appear on 27 September,
George Mason's objections
were in circulation and the
Brutus Essays were
launched on 18 October.
The number of essays in
The Federalist was
extended in response to the
relentless, and effective,
Antifederalist criticism of
the proposed Constitution.
McLean bundled the first 36 essays together—they appeared in the newspapers between 27 October 1787 and 8
January 1788—and published them as Volume 1 on March 22, 1788. Essays 37 through 77 of The Federalist
appeared between 11 January and 2 April 1788. On 28 May, McLean took Federalist 37-77 as well as the yet to be
published Federalist 78-85 and issued them all as Volume 2 of The Federalist. Between 14 June and 16 August,
these eight remaining essays—Federalist 78-85—appeared in the Independent Journal and New York Packet.
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The Status of The Federalist
One of the persistent questions concerning the status of The Federalist is this: is it a propaganda tract written to
secure ratification of the Constitution and thus of no enduring relevance or is it the authoritative expositor of the
meaning of the Constitution having a privileged position in constitutional interpretation? It is tempting to adopt the
former position because 1) the essays originated in the rough and tumble of the ratification struggle. It is also
tempting to 2) see The Federalist as incoherent; didn't Hamilton and Madison disagree with each other within five
years of co-authoring the essays? Surely the seeds of their disagreement are sown in the very essays! 3) The essays
sometimes appeared at a rate of about three per week and, according to Madison, there were occasions when the last
part of an essay was being written as the first part was being typed.
1) One should not confuse self-serving propaganda with advocating a political position in a persuasive manner.
After all, rhetorical skills are a vital part of the democratic electoral process and something a free people have to
handle. These are op-ed pieces of the highest quality addressing the most pressing issues of the day. 2) Moreover,
because Hamilton and Madison parted ways doesn't mean that they weren't in fundamental agreement in 1787-1788
about the need for a more energetic form of government. And just because they were written with a certain haste,
doesn't mean that they were unreflective and not well written. Federalist 10, the most famous of all the essays, is
actually the final draft of an essay that originated in Madison's Vices in 1787, matured at the Constitutional
Convention in June 1787, and was refined in a letter to Jefferson in October 1787. All of Jay's essays focus on
foreign policy, the heart of the Madisonian essays are Federalist 37-51 on the great difficulty of founding, and
Hamilton tends to focus on the institutional features of federalism and the separation of powers.
I suggest, furthermore, that the moment these essays were available in book form, they acquired a status that went
beyond the more narrowly conceived objective of trying to influence the ratification of the Constitution. The
Federalist now acquired a "timeless" and higher purpose, a sort of icon status equal to the very Constitution that it
was defending and interpreting. And we can see this switch in tone in Federalist 37 when Madison invites his
readers to contemplate the great difficulty of founding. Federalist 38, echoing Federalist 1, points to the uniqueness
of the America Founding: never before had a nation been founded by the reflection and choice of multiple founders
who sat down and deliberated over creating the best form of government consistent with the genius of the American
people. Thomas Jefferson referred to the Constitution as the work of "demigods," and The Federalist "the best
commentary on the principles of government, which ever was written." There is a coherent teaching on the
constitutional aspects of a new republicanism and a new federalism in The Federalist that makes the essays attractive
to readers of every generation.
Authorship of The Federalist
A second question about The Federalist is how many essays did each person write? James Madison—at the time a
resident of New York since he was a Virginia delegate to the Confederation Congress that met in New York—John
Jay, and Alexander Hamilton—both of New York—wrote these essays under the pseudonym, "Publius." So one
answer to the question is that it doesn't matter since everyone signed off under the same pseudonym, "Publius." But
given the icon status of The Federalist, there has been an enduring curiosity about the authorship of the essays.
Although it is virtually agreed that Jay wrote only five essays, there have been several disputes over the decades
concerning the distribution of the essays between Hamilton and Madison. Suffice it to note, that Madison's last
contribution was Federalist 63, leaving Hamilton as the exclusive author of the nineteen Executive and Judiciary
essays. Madison left New York in order to comply with the residence law in Virginia concerning eligibility for the
Virginia ratifying convention. There is also widespread agreement that Madison wrote the first thirteen essays on the
great difficulty of founding. There is still dispute over the authorship of Federalist 50-58, but these have
persuasively been resolved in favor of Madison.
Outline of The Federalist
A third question concerns how to "outline" the essays into its component parts. We get some natural help from the
authors themselves. Federalist 1 outlines the six topics to be discussed in the essays without providing an exact table
of contents. The authors didn't know in October 1787 how many essays would be devoted to each topic.
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Nevertheless, if one sticks with the "formal division of the subject" outlined in the first essay, it is possible to work
out the actual division of essays into the six topic areas or "points" after the fact so to speak.
Martin Diamond was one of the earliest scholars to break The Federalist int its component parts. He identified Union
as the subject matter of the first thirty-six Federalist essays and Republicanism as the subject matter of last fortynine essays. There is certain neatness to this breakdown, and accuracy to the Union essays. The fist three topics
outlined in Federalist 1 are 1) the utility of the union, 2) the insufficiency of the present confederation under the
Articles of Confederation, and 3) the need for a government at least as energetic as the one proposed. The opening
paragraph of Federalist 15 summarizes the previous fourteen essays and says: "in pursuance of the plan which I have
laid down for the pursuance of the subject, the point next in order to be examined is the 'insufficiency of the present
confederation.'" So we can say with confidence that Federalist 1-14 is devoted to the utility of the union. Similarly,
Federalist 23 opens with the following observation: " the necessity of a Constitution, at least equally energetic as the
one proposed… is the point at the examination of the examination at which we are arrived." Thus Federalist 15-22
covered the second point dealing with union or federalism. Finally, Federalist 37 makes it clear that coverage of the
third point has come to an end and new beginning has arrived. And since McLean bundled the first thirty-six essays
into Volume 1, we have confidence in declaring a conclusion to the coverage of the first three points all having to do
with union and federalism.
The difficulty with the Diamond project is that it becomes messy with respect to topics 4, 5, and 6 listed in
Federalist 1: 4) the Constitution conforms to the true principles of republicanism, 5) the analogy of the Constitution
to state governments, and 6) the added benefits from adopting the Constitution. Let's work our way backward. In
Federalist 85, we learn that "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," namely, the fifth and sixth points. That leaves,
"republicanism," the fourth point, as the topic for Federalist 37-84, or virtually the entire Part II of The Federalist.
I propose that we substitute the word Constitutionalism for Republicanism as the subject matter for essays 37-51,
reserving the appellation Republicanism for essays 52-84. This substitution is similar to the "Merits of the
Constitution" designation offered by Charles Kesler in his new introduction to the Rossiter edition; the advantage of
this Constitutional approach is that it helps explain why issues other than Republicanism strictly speaking are
covered in Federalist 37-46. Kesler carries the Constitutional designation through to the end; I suggest we return to
Republicanism with Federalist 52.
State House Speech
James Wilson
October 6, 1787
Meeting of the Citizens of Philadelphia
Mr. Chairman and Fellow Citizens,
Having received the honour of an appointment to represent you in the late convention, it is, perhaps, my duty to
comply with the request of many gentlemen, whose characters and judgments I sincerely respect, and who have
urged that this would be a proper occasion to lay before you any information, which will serve to elucidate and
explain the principles and arrangements of the constitution that has been submitted to the consideration of the United
States. I confess that I am unprepared for so extensive and so important a disquisition: but the insidious attempts,
which are clandestinely and industriously made to pervert and destroy the new plan, induce me the more readily to
engage in its defence: and the impressions of four months constant attendance to the subject, have not been so easily
effaced, as to leave me without an answer to the objections which have been raised.
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it will be proper, however, before I enter into the refutation of the charges that are alleged, to mark the leading
discrimination between the state constitutions, and the constitution of the United States. When the people established
the powers of legislation under their separate governments, they invested their representatives with every right and
authority which they did not in explicit terms reserve: and therefore upon every question, respecting the jurisdiction
of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in
delegating federal powers, another criterion was necessarily introduced: and the congressional authority is to be
collected, not from tacit implication, but from the positive grant, expressed in the instrument of the union. Hence, it
is evident, that in the former case, everything which is not reserved, is given: but in the latter, the reverse of the
proposition prevails, and everything which is not given, is reserved. This distinction being recognized, will furnish
and answer to those who think the omission of a bill of rights, a defect in the proposed constitution: for it would
have been superfluous and absurd, to have stipulated with a federal body of our own creation, that we should enjoy
those privileges, of which we are not divested either by the intention of that act that has brought that body into
existence. For instance, the liberty of the press, which has been a copious subject of federal government, to shackle
or destroy that sacred palladium of national freedom? If, indeed, a power similar to that which has been granted for
the regulation of commerce, had been granted to regulate literary publications it would have been as necessary to
stipulate that the liberty of the press should be preserved inviolate, as that the impost should be general in its
operation. With respect, likewise, to the particular district of ten miles, which is to be the seat of government, it will
undoubtedly be proper to observe this salutary precaution, as there the legislative power will be vested in the
president, senate, and house of representatives of the United States. But this could not be an object with the
convention: for it must naturally depend upon a future compact; to which the citizens immediately interested, will,
and ought to be parties: and there is no reason to suspect, that so popular a system possesses no influence whatever
upon the press; and it would have been merely nugatory, to have introduced a formal declaration upon the subject;
nay, that very declaration might have been construed to imply that some degree of power was given, since we
undertook to define its extent.
Another objection that has been fabricated against the new constitution, is expressed in this disingenuous form —
"The trial by jury is abolished in civil cases." I must be excused, my fellow citizens, if, upon this point, I take
advantage of my professional experience, to detect the futility of the assertion. Let it be remembered, then, that the
business of the federal constitution was not local, but general — not limited to the views and establishments of a
single state, but co—extensive with the continent, and comprehending the views and establishments of thirteen
independent sovereignties. When, therefore, this subject was in discussion, we were involved in difficulties, which
pressed on all sides, and no precedent could be discovered to direct our course. The cases open to a jury, differed in
the different states; it was therefore impracticable, on that ground, to have made a general rule. The want of
uniformity would have rendered any reference to the practice of the states idle and useless: and it could not, with any
propriety, be said, that "the trial by jury shall be as heretofore:" since there has never existed any federal system of
jurisprudence, to which the declaration could relate. Besides, it is not in all cases that the trial by jury is adopted in
civil question: for causes depending in courts of admiralty, such as relate to maritime captures, and such as are
agitated in the courts of equity, do not require the intervention of that tribunal. How, then, was the line of
discrimination to be drawn? The convention found the task too difficult for them: and they left the business as it
stands — the fullest confidence, that no danger could possibly ensue, since the proceedings of the supreme court are
to be regulated by the congress, which is a faithful representation of the people: and the oppression of government is
effectually barred, by declaring that in all criminal cases, the trial by jury shall be preserved.
*********
After all, my fellow—citzens, it is neither extraordinary nor unexpected, that the constitution offered to your
consideration, should meet with opposition. It is the nature of man to pursue his own interest, in preference to the
public good; and I do not mean to make any personal reflection, when I add, that it is the interst of a very numerous,
powerful, and respectable body, to counteract and destroy the excellent work produced by the late convention. All
the officers of government, and all the appointments for the administration of justice and the collection of the public
revenue, which are transferred from the individual to the aggregate sovereignty of the states, will necessarily turn the
stream of influence and emolument into a new channel. Every person, therefore, who either enjoys, or expects to
enjoy a place of profit under the present establishment, will object to the proposed innovation? Not, in truth, because
it is injurious to the liberties of his country, but because it effects his schemes of wealth and consequence. I will
confess, indeed, that I am not a blind admirer of this plan of government, and that there are some parts of it, which,
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if my wish had prevailed, would certainly have been altered. But, when I reflect how widely men differ in their
opinions, and that every man (and the observation applies likewise to every state) has an equal pretension to assert
his own, I am satisfied that anything nearer to perfection could not have been accomplish4ed. If there are errors, it
should be remembered, that the seeds of reformation are sown in the work itself, and the concurrence of two thirds
of the congress may at any time introduce alterations and amendments. Regarding it, then, in every point of view,
with a candid and disinterested mind, I am bold to asstert, that it is the BEST FORM OF GOVERNMENT WHICH
HAS EVER BEEN OFFERED TO THE WORLD.
FINIS.
Federalist No. 1
Publius (Alexander Hamilton)
October 27, 1787
General Introduction
AFTER an unequivocal experience of the inefficacy of the subsisting federal government, you are called upon to
deliberate on a new Constitution for the United States of America. The subject speaks its own importance;
comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts
of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been
frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example,
to decide the important question, whether societies of men are really capable or not of establishing good government
from reflection and choice, or whether they are forever destined to depend for their political constitutions on
accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be
regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this
view, deserve to be considered as the general misfortune of mankind.
This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all
considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious
estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But
this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations affects
too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of
objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth.
Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be
distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a
diminution of the power, emolument and consequence of the offices they hold under the State establishments; and
the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of
their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into
several partial confederacies than from its union under one government.
It is not, however, my design to dwell upon observations of this nature. I am well aware that it would be
disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might
subject them to suspicion) into interested or ambitious views. Candor will oblige us to admit that even such men
may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its
appearance, or may hereafter make its appearance, will spring from sources, blameless at least if not respectable-the
honest errors of minds led astray by preconceived jealousies and fears. So numerous indeed and so powerful are the
causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on
the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly
attended to, would furnish a lesson of moderation to those who are so thoroughly persuaded of their being in the
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right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we
are not always sure that those who advocate the truth are influenced by purer principles than their antagonists.
Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are
apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even
these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has at all times
characterized political parties. For in politics as in religion, it is equally absurd to aim at making proselytes by fire
and sword. Heresies in either can rarely be cured by persecution.
And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will
happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be
let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope
to evince the justness of their opinions, and to increase the number of their converts by the loudness of their
declamations and by the bitterness of their invectives. An enlightened zeal for the energy and efficiency of
government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of
liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the
head than of the heart, will be represented as mere pretence and artifice, the stale bait for popularity at the expense
of public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of violent love, and that
the noble enthusiasm of liberty is too apt to be infected with a spirit of narrow and illiberal distrust. On the other
hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the
contemplation of a sound and well-informed judgment, their interests can never be separated; and that a dangerous
ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding
appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been
found a much more certain road to the introduction of despotism than the latter, and that of those men who have
overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to
the people, commencing demagogues and ending tyrants.
In the course of the preceding observations, I have had an eye, my fellow-citizens, to putting you upon your guard
against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your
welfare by any impressions other than those which may result from the evidence of truth. You will, no doubt, at the
same time have collected from the general scope of them that they proceed from a source not unfriendly to the new
Constitution. Yes, my Countrymen, I own to you that after having given it an attentive consideration, I am clearly of
opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and
your happiness. I affect not reserves which I do not feel. I will not amuse you with an appearance of deliberation
when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on
which they are founded. The consciousness of good intentions disdains ambiguity. I shall not however multiply
professions on this head. My motives must remain in the depository of my own breast. My arguments will be open
to all and may be judged of by all. They shall at least be offered in a spirit which will not disgrace the cause of truth.
I propose in a series of papers to discuss the following interesting particulars:-The utility of the UNION to your
political prosperity-The insufficiency of the present Confederation to preserve that Union-The necessity of a
government at least equally energetic with the one proposed to the attainment of this object-The conformity of the
proposed Constitution to the true principles of republican government-Its analogy to your own State constitutionand lastly, The additional security which its adoption will afford to the preservation of that species of government,
to liberty and to property.
In the progress of this discussion I shall endeavor to give a satisfactory answer to all the objections which shall have
made their appearance, that may seem to have any claim to your attention.
It may perhaps be thought superfluous to offer arguments to prove the utility of the UNION, a point, no doubt,
deeply engraved on the hearts of the great body of the people in every State, and one which, it may be imagined, has
no adversaries. But the fact is that we already hear it whispered in the private circles of those who oppose the new
constitution, that the Thirteen States are of too great extent for any general system, and that we must of necessity
resort to separate confederacies of distinct portions of the whole. This doctrine will, in all probability, be gradually
propagated, till it has votaries enough to countenance an open avowal of it. For nothing can be more evident to those
who are able to take an enlarged view of the subject than the alternative of an adoption of the new Constitution or a
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dismemberment of the Union. It will therefore be of use to begin by examining the advantages of that Union, the
certain evils, and so the probable dangers, to which every State will be exposed from its dissolution. This shall
accordingly constitute the subject of my next address.
Federalist No. 15
Publius (Alexander Hamilton)
December 1, 1787
The Insufficiency Of The Present Confederation To Preserve The Union
IN THE course of the preceding papers I have endeavored, my fellow-citizens, to place before you in a clear and
convincing light the importance of Union to your political safety and happiness. I have unfolded to you a
complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people
of America together to be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation. In the
sequel of the inquiry through which I propose to accompany you, the truths intended to be inculcated will receive
further confirmation from facts and arguments hitherto unnoticed. If the road over which you will still have to pass
should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a
subject the most momentous which can engage the attention of a free people, that the field through which you have
to travel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes
with which sophistry has beset the way. It will be my aim to remove the obstacles from your progress in as
compendious a manner as it can be done, without sacrificing utility to dispatch.
In pursuance of the plan which I have laid down for the discussion of the subject, the point next in order to be
examined is the "insufficiency of the present Confederation to the preservation of the Union." It may perhaps be
asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to
which the understandings and feelings of all classes of men assent, and which in substance is admitted by the
opponents as well as by the friends of the new Constitution. It must in truth be acknowledged that, however these
may differ in other respects, they in general appear to harmonize in this sentiment at least: that there are material
imperfections in our national system and that something is necessary to be done to rescue us from impending
anarchy. The facts that support this opinion are no longer objects of speculation. They have forced themselves upon
the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the
principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those
defects in the scheme of our federal government which have been long pointed out and regretted by the intelligent
friends of the Union.
We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is
scarcely anything that can wound the pride or degrade the character of an independent nation which we do not
experience. Are there engagements to the performance of which we are held by every tie respectable among men?
These are the subjects of constant and unblushing violation. Do we owe debts to foreigners and to our own citizens
contracted in a time of imminent peril for the preservation of our political existence? These remain without any
proper or satisfactory provision for their discharge. Have we valuable territories and important posts in the
possession of a foreign power which, by express stipulations, ought long since to have been surrendered? These are
still retained to the prejudice of our interests, not less than of our rights. Are we in a condition to resent or to repel
the aggression? We have neither troops, nor treasury, nor government. Are we even in a condition to remonstrate
with dignity? The just imputations on our own faith in respect to the same treaty ought first to be removed. Are we
entitled by nature and compact to a free participation in the navigation of the Mississippi? Spain excludes us from it.
Is public credit an indispensable resource in time of public danger? We seem to have abandoned its cause as
desperate and irretrievable. Is commerce of importance to national wealth? Ours is at the lowest point of declension.
Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our
government even forbids them to treat with us. Our ambassadors abroad are the mere pageants of mimic
sovereignty. Is a violent and unnatural decrease in the value of land a symptom of national distress? The price of
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improved land in most parts of the country is much lower than can be accounted for by the quantity of waste land at
market, and can only be fully explained by that want of private and public confidence, which are so alarmingly
prevalent among all ranks and which have a direct tendency to depreciate property of every kind. Is private credit
the friend and patron of industry? That most useful kind which relates to borrowing and lending is reduced within
the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. To shorten an
enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what
indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly
blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public
misfortunes?
This is the melancholy situation to which we have been brought by those very maxims and counsels which would
now deter us from adopting the proposed Constitution; and which, not content with having conducted us to the brink
of a precipice, seem resolved to plunge us into the abyss that awaits us below. Here, my countrymen, impelled by
every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity,
our dignity, our reputation. Let us at last break the fatal charm which has too long seduced us from the paths of
felicity and prosperity.
It is true, as has been before observed, that facts too stubborn to be resisted have produced a species of general
assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the
concession on the part of the old adversaries of federal measures is destroyed by a strenuous opposition to a remedy
upon the only principles that can give it a chance of success. While they admit that the government of the United
States is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that
energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority
without a diminution of State authority; at sovereignty in the Union and complete independence in the members.
They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. This renders
a full display of the principal defects of the Confederation necessary in order to show that the evils we experience do
not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which
cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric.
The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for
STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished
from the INDIVIDUALS of which they consist. Though this principle does not run through all the powers delegated
to the Union, yet it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of
appointment, the United States has an indefinite discretion to make requisitions for men and money; but they have
no authority to raise either by regulations extending to the individual citizens of America. The consequence of this is
that though in theory their resolutions concerning those objects are laws constitutionally binding on the members of
the Union, yet in practice they are mere recommendations which the States observe or disregard at their option.
It is a singular instance of the capriciousness of the human mind that after all the admonitions we have had from
experience on this head, there should still be found men who object to the new Constitution, for deviating from a
principle which has been found the bane of the old and which is in itself evidently incompatible with the idea of
GOVERNMENT; a principle, in short, which, if it is to be executed at all, must substitute the violent and sanguinary
agency of the sword to the mild influence of the magistracy.
There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain
defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity,
leaving nothing to future discretion, and depending for its execution on the good faith of the parties. Compacts of
this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and nonobservance, as the interests or passions of the contracting powers dictate. In the early part of the present century
there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly
hoped for benefits which were never realized. With a view to establishing the equilibrium of power and the peace of
that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were
formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to
mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good
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faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or
passion.
If the particular States in this country are disposed to stand in a similar relation to each other, and to drop the project
of a general DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be pernicious and would entail
upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at
least, consistent and practicable. Abandoning all views towards a confederate government, this would bring us to a
simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each
other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us.
But if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national
government, or, which is the same thing, of a superintending power, under the direction of a common council, we
must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic
difference between a league and a government; we must extend the authority of the Union to the persons of the
citizens-the only proper objects of government.
Government implies the power of making laws. It is essential to the idea of a law that it be attended with a sanction;
or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the
resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or
recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts
and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms.
The first kind can evidently apply only to men; the last kind must of necessity be employed against bodies politic, or
communities, or States. It is evident that there is no process of a court by which the observance of the laws can in the
last resort be enforced. Sentences may be denounced against them for violations of their duty; but these sentences
can only be carried into execution by the sword. In an association where the general authority is confined to the
collective bodies of the communities that compose it, every breach of the laws must involve a state of war; and
military execution must become the only instrument of civil obedience. Such a state of things can certainly not
deserve the name of government, nor would any prudent man choose to commit his happiness to it.
There was a time when we were told that breaches by the States of the regulations of the federal authority were not
to be expected; that a sense of common interest would preside over the conduct of the respective members, and
would beget a full compliance with all the constitutional requisitions of the Union. This language, at the present day,
would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have
received further lessons from that best oracle of wisdom, experience. It at all times betrayed an ignorance of the true
springs by which human conduct is actuated, and belied the original inducements to the establishment of civil
power. Why has government been instituted at all? Because the passions of men will not conform to the dictates of
reason and justice without constraint. Has it been found that bodies of men act with more rectitude or greater
disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of
mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when
the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of
faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of
whom they are composed into improprieties and excesses for which they would blush in a private capacity.
In addition to all this, there is in the nature of sovereign power an impatience of control that disposes those who are
invested with the exercise of it to look with an evil eye upon all external attempts to restrain or direct its operations.
From this spirit it happens that in every political association which is formed upon the principle of uniting in a
common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the
subordinate or inferior orbs by the operation of which there will be a perpetual effort in each to fly off from the
common center. This tendency is not difficult to be accounted for. It has its origin in the love of power. Power
controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. This
simple proposition will teach us how little reason there is to expect that the persons intrusted with the administration
of the affairs of the particular members of a confederacy will at all times be ready with perfect good humor and an
unbiased regard to the public weal to execute the resolutions or decrees of the general authority. The reverse of this
results from the constitution of man.
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If, therefore, the measures of the Confederacy cannot be executed without the intervention of the particular
administrations, there will be little prospect of their being executed at all. The rulers of the respective members,
whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures
themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims;
the momentary conveniences or inconveniences that would attend its adoption. All this will be done; and in a spirit
of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which
is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to
mislead the decision. The same process must be repeated in every member of which the body is constituted; and the
execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the illinformed and prejudiced opinion of every part. Those who have been conversant in the proceedings of popular
assemblies; who have seen how difficult it often is, when there is no exterior pressure of circumstances, to bring
them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a
number of such assemblies, deliberating at a distance from each other, at different times and under different
impressions, long to co-operate in the same views and pursuits.
In our case the concurrence of thirteen distinct sovereign wills is requisite under the Confederation, to the complete
execution of every important measure that proceeds from the Union. It has happened as was to have been foreseen.
The measures of the Union have not been executed; and the delinquencies of the States have step by step matured
themselves to an extreme, which has, at length, arrested all the wheels of the national government and brought them
to an awful stand. Congress at this time scarcely possess the means of keeping up the forms of administration, till
the States can have time to agree upon a more substantial substitute for the present shadow of a federal government.
Things did not come to this desperate extremity at once. The causes which have been specified produced at first only
unequal and disproportionate degrees of compliance with the requisitions of the Union. The greater deficiencies of
some States furnished the pretext of example and the temptation of interest to the complying, or to the least
delinquent States. Why should we do more in proportion than those who are embarked with us in the same political
voyage? Why should we consent to bear more than our proper share of the common burden? There were suggestions
which human selfishness could not withstand, and which even speculative men, who looked forward to remote
consequences, could not without hesitation combat. Each State yielding to the persuasive voice of immediate interest
or convenience has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our
heads and to crush us beneath its ruins.
PUBLIUS
Federalist No. 27
Publius (Alexander Hamilton)
December 25, 1787
The Same Subject Continued
IT HAS been urged in different shapes that a Constitution of the kind proposed by the convention cannot operate
without the aid of a military force to execute its laws. This, however, like most other things that have been alleged
on that side, rests on mere general assertion, unsupported by any precise or intelligible designation of the reasons
upon which it is founded. As far as I have been able to divine the latent meaning of the objectors, it seems to
originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of
an internal nature. Waiving any exception that might be taken to the inaccuracy or inexplicitness of the distinction
between internal and external, let us inquire what ground there is to presuppose that disinclination in the people.
Unless we presume at the same time that the powers of the general government will be worse administered than
those of the State governments, there seems to be no room for the presumption of ill will, disaffection, or opposition
in the people. I believe it may be laid down as a general rule that their confidence in and obedience to a government
will commonly be proportioned to the goodness or badness of its administration. It must be admitted that there are
exceptions to this rule; but these exceptions depend so entirely on accidental causes that they cannot be considered
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as having any relation to the intrinsic merits or demerits of a constitution. These can only be judged of by general
principles and maxims.
Various reasons have been suggested in the course of these papers to induce a probability that the general
government will be better administered than the particular governments: the principal of which reasons are that the
extension of the spheres of election will present a greater option, or latitude of choice, to the people; that through the
medium of the State legislatures - who are select bodies of men and which are to appoint the members of the
national Senate - there is reason to expect that this branch will generally be composed with peculiar care and
judgment; that these circumstances promise greater knowledge and more comprehensive information in the national
councils. And that on account of the extent of the country from which those, to whose direction they will be
committed, will be drawn, they will be less apt to be tainted by the spirit of faction, and more out of the reach of
those occasional ill-humors, or temporary prejudices and propensities, which, in smaller societies, frequently
contaminate the public deliberations, beget injustice and oppression of a part of the community, and engender
schemes which, though they gratify a momentary inclination or desire, terminate in general distress, dissatisfaction,
and disgust. Several additional reasons of considerable force, to fortify that probability, will occur when we come to
survey, with a more critical eye, the interior structure of the edifice which we are invited to erect. It will be sufficient
here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is
likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no
reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from
them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members.
The hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionately strong
discouragement to it. Will not the government of the Union, which, if possessed of a due degree of power, can call
to its aid the collective resources of the whole Confederacy, be more likely to repress the former sentiment and to
inspire the later, than that of a single State, which can only command the resources within itself? A turbulent faction
in a State may easily suppose itself able to contend with the friends to the government in that State; but it can hardly
be so infatuated as to imagine itself a match for the combined efforts of the Union. If this reflection be just, there is
less danger of resistance from irregular combinations of individuals to the authority of the Confederacy than to that
of a single member.
I will, in this place, hazard an observation which will not be the less just because to some it may appear new; which
is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the
more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is
familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible
chords and put in motion the most active springs of the human heart, the greater will be the probability that it will
conciliate the respect and attachment of the community. Man is very much a creature of habit. A thing that rarely
strikes his senses will generally have but a transient influence upon his mind. A government continually at a distance
and out of sight can hardly be expected to interest the sensations of the people. The inference is that the authority of
the Union and the affections of the citizens towards it will be strengthened, rather than weakened, by its extension to
what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the
familiarity and comprehensiveness of its agency. The more it circulates through those channels and currents in
which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of
compulsion.
One thing, at all events, must be evident, that a government like the one proposed would bid much fairer to avoid the
necessity of using force, than that species of league contend for by most of its opponents; the authority of which
should only operate upon the States in their political or collective capacities. It has been shown that in such a
Confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the
natural offspring of the very frame of the government; and that as often as these happen, they can only be redressed,
if at all, by war and violence.
The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the
several States, will enable the government to employ the ordinary magistracy of each in the execution of its laws. It
is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources
from which they might proceed; and will give the federal government the same advantage for securing a due
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obedience to its authority which is enjoyed by the government of each State, in addition to the influence on public
opinion which will result from the important consideration of its having power to call to its assistance and support
the resources of the whole Union. It merits particular attention in this place, that the laws of the Confederacy, as \to
the enumerated and legitimate objects of its jurisdiction will become the SUPREME LAW of the land; to the
observance of which all officers, legislative, executive, and judicial in each State will be bound by the sanctity of an
oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the
operations of the national government as far as its just and constitutional authority extends; and will be rendered
auxiliary to the enforcement of its laws. Any man who will pursue by his own reflections the consequences of this
situation will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of
the Union, if its powers are administered with a common share of prudence. If we will arbitrarily suppose the
contrary, we may deduce any inferences we please from the supposition; for it is certainly possible, by an
injudicious exercise of the authorities of the best government that ever was, or ever can be instituted, to provoke and
precipitate the people into the wildest excesses. But though the adversaries of the proposed Constitution should
presume that the national rulers would be insensible to the motives of public good, or to the obligations of duty, I
would still ask them how the interests of ambition, or the views of encroachment, can be promoted by such a
conduct?
PUBLIUS.
Federalist No. 28
Publius (Alexander Hamilton)
December 26, 1787
The Same Subject Continued
THAT there may happen cases in which the national government may be necessitated to resort to force cannot be
denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies
of this sort will sometimes exist in all societies, however constituted; that seditions and insurrections are, unhappily,
maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of
governing at all times by the simple force of law (which we have been told is the only admissible principle of
republican government) has no place but in the reveries of those political doctors whose sagacity disdains the
admonitions of experimental instruction.
Should such emergencies at any time happen under the national government, there could be no remedy but force.
The means to be employed must be proportioned to the extent of the mischief. If it should be a slight commotion in a
small part of a State, the militia of the residue would be adequate to its suppression; and the national presumption is
that they would be ready to do their duty. An insurrection, whatever may be its immediate cause, eventually
endangers all government. Regard to the public peace, if not to the rights of the Union, would engage the citizens to
whom the contagion had not communicated itself to oppose the insurgents; and if the general government should be
found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would
be disinclined to its support.
If, on the contrary, the insurrection should pervade a whole State, or a principal part of it, the employment of a
different kind of force might become unavoidable. It appears that Massachusetts found it necessary to raise troops
for suppressing the disorders within that State; that Pennsylvania, from the mere apprehension of commotions
among a part of her citizens, has thought proper to have recourse to the same measure. Suppose the State of New
York had been inclined to re-establish her lost jurisdiction over the inhabitants of Vermont, could she have hoped
for success in such an enterprise from the efforts of the militia alone? Would she not have been compelled to raise
and to maintain a more regular force for the execution of her design? If it must then be admitted that the necessity of
recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the State
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governments themselves, why should the possibility that the national government might be under a like necessity, in
similar extremities, be made an objection to its existence? Is it not surprising that men who declare an attachment to
the Union in the abstract should urge as an objection to the proposed Constitution what applies with tenfold weight
to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of
civil society upon an enlarged scale? Who would not prefer that possibility to the unceasing agitations and frequent
revolutions which are the continual scourges of petty republics?
Let us pursue this examination in another light. Suppose, in lieu of one general system, two, or three, or even four
Confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these
Confederacies? Would not each of them be exposed to the same casualties; and when these happened, be obliged to
have recourse to the same expedients for upholding its authority which are objected to in a government for all the
States? Would the militia in this supposition be more ready or more able to support the federal authority than in the
case of a general union? All candid and intelligent men must, upon due consideration, acknowledge that the
principle of the objection is equally applicable to either of the two cases; and that whether we have one government
for all the States, or different governments for different parcels of them, or as many unconnected governments as
there are States, there might sometimes be a necessity to make use of a force constituted differently from the militia
to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions
of them which amount to insurrections and rebellions.
Independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory
provision against military establishments in time of peace to say that the whole power of the proposed government is
to be in the hands of the representatives of the people. This is the essential, and, after all, the only efficacious
security for the rights and privileges of the people which is attainable in civil society.
If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that
original right of self-defense which is paramount to all positive forms of government, and which against the
usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the
rulers of an individual State. In a single State, if the persons intrusted with supreme power become usurpers, the
different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no
regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without
resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often
crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to
form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence
can be more speedily obtained of their preparations and movements, and the military force in the possession of the
usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be
a peculiar coincidence of circumstances to insure success to the popular resistance.
The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided
the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large
community, in proportion to the artificial strength of the government, is greater than in a small, and of course more
competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people,
without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival
of power, the general government will at all times stand ready to check the usurpations of the state governments, and
these will have the same disposition towards the general government. The people, by throwing themselves into
either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other
as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an
advantage which can never be too highly prized!
It may safely be received as an axiom in our political system that the State governments will, in all possible
contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of
usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the
people at large. The legislatures will have better means of information. They can discover the danger at a distance;
and possessing all the organs of civil power and the confidence of the people, they can at once adopt a regular plan
of opposition, in which they can combine all the resources of the community. They can readily communicate with
each other in the different States, and unite their common forces for the protection of their common liberty.
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The great extent of the country is a further security. We have already experienced its utility against the attacks of a
foreign power. And it would have precisely the same effect against the enterprises of ambitious rulers in the national
councils. If the federal army should be able to quell the resistance of one State, the distant States would be able to
make head with fresh forces. The advantages obtained in one place must be abandoned to subdue the opposition in
others; and the moment the part which had been reduced to submission was left to itself, its efforts would be
renewed, and its resistance revive.
We should recollect that the extent of the military force must, at all events, be regulated by the resources of the
country. For a long time to come it will not be possible to maintain a large army; and as the means of doing this
increase, the population and natural strength of the community will proportionably increase. When will the time
arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great
body of the people of an immense empire, who are in a situation, through the medium of their State governments, to
take measures for their own defense, with all the celerity, regularity, and system of independent nations? The
apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and
reasoning.
PUBLIUS
Federalist No. 47
Publius (James Madison)
January 30, 1788
The Particular Structure Of The New Government And The Distribution Of Power Among Its Different Parts
Having reviewed the general form of the proposed government and the general mass of power allotted to it, I
proceed to examine the particular structure of this government, and the distribution of this mass of power among its
constituent parts.
One of the principal objections inculcated by the more respectable adversaries to the Constitution is its supposed
violation of the political maxim that the legislative, executive, and judiciary departments ought to be separate and
distinct. In the structure of the federal government no regard, it is said, seems to have been paid to this essential
precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at
once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the
danger of being crushed by the disproportionate weight of other parts.
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons
of liberty than that on which the objection is founded. The accumulation of all powers, legislative, executive and
judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective,
may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable
with this accumulation of power, or with a mixture of powers, having a dangerous tendency to such an
accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade
myself, however, that it will be made apparent to everyone that the charge cannot be supported, and that the maxim
on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important
subject it will be proper to investigate the sense in which the preservation of liberty requires that the three great
departments of power should be separate and distinct.
The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author
of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most
effectually to the attention of mankind. Let us endeavor in the first place, to ascertain his meaning on this point.
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The British constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the
latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the
epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to
have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political
liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular
system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the
maxim was drawn.
On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary
departments are by no means totally separate and distinct from each other. The executive magistrate forms an
integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns
which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary
department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form,
when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms
also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial
power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The
judges, again, are so far connected with the legislative department as often to attend and participate in its
deliberations, though not admitted to a legislative vote.
From these facts, by which Montesquieu was guided, it may clearly be inferred that in saying "There can be no
liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the
power of judging be not separated from the legislative and executive powers," he did not mean that these
departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own
words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this,
that where the whole power of one department is exercised by the same hands which possess the whole power of
another department, the fundamental principles of a free constitution are subverted. This would have been the case
in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the
complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed
the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution.
The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a
negative on every law; nor administer justice in person, though he has the appointment of those who do administer
it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any
legislative function, though they may be advised with by the legislative councils. The entire legislature can perform
no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and
though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can
exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and
another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive
department.
The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. "When the
legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because
apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a
tyrannical manner." Again: "Were the power of judging joined with the legislative, the life and liberty of the subject
would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive
power, the judge might behave with all the violence of an oppressor." Some of these reasons are more fully
explained in other passages; but briefly stated as they are here they sufficiently establish the meaning which we have
put on this celebrated maxim of this celebrated author.
If we look into the constitutions of the several States we find that, notwithstanding the emphatical and, in some
instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the
several departments of power have been kept absolutely separate and distinct. New Hampshire, whose constitution
was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture
whatever of these departments, and has qualified the doctrine by declaring "that the legislative, executive, and
judiciary powers ought to be kept as separate from, and independent of, each other as the nature of a free
government will admit; or as is consistent with that chain of connection that binds the whole fabric of the
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constitution in one indissoluble bond of unity and amity." Her constitution accordingly mixes these departments in
several respects. The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of
impeachments. The President, who is the head of the executive department, is the presiding member also of the
Senate; and, besides an equal vote in all cases, has a casting vote in case of a tie. The executive head is himself
eventually elective every year by the legislative department, and his council is every year chosen by and from the
members of the same department. Several of the officers of state are also appointed by the legislature. And the
members of the judiciary department are appointed by the executive department.
The constitution of Massachusetts has observed a sufficient though less pointed caution in expressing this
fundamental article of liberty. It declares "that the legislative department shall never exercise the executive and
judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of
them; the judicial shall never exercise the legislative and executive powers, or either of them." This declaration
corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated
by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising
the powers of another department. In the very Constitution to which it is prefixed, a partial mixture of powers has
been admitted. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a
part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. The
members of the judiciary department, again, are appointable by the executive department, and removable by the
same authority on the address of the two legislative branches. Lastly, a number of the officers of government are
annually appointed by the legislative department. As the appointment to offices, particularly executive offices, is in
its nature an executive function, the compilers of the Constitution have, in this last point at least, violated the rule
established by themselves.
I pass over the constitutions of Rhode Island and Connecticut, because they were formed prior to the Revolution and
even before the principle under examination had become an object of political attention.
The constitution of New York contains no declaration on this subject, but appears very clearly to have been framed
with an eye to the danger of improperly blending the different departments. It gives, nevertheless, to the executive
magistrate, a partial control over the legislative department; and, what is more, gives a like control to the judiciary
department; and even blends the executive and judiciary departments in the exercise of this control. In its council of
appointment members of the legislative are associated with the executive authority, in the appointment of officers,
both executive and judiciary. And its court for the trial of impeachments and correction of errors is to consist of one
branch of the legislature and the principal members of the judiciary department.
The constitution of New Jersey has blended the different powers of government more than any of the preceding. The
governor, who is the executive magistrate, is appointed by the legislature; is chancellor and ordinary or surrogate of
the State; is a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative
branches. The same legislative branch acts again as executive council to the governor, and with him constitutes the
Court of Appeals. The members of the judiciary department are appointed by the legislative department, and
removable by one branch of it, on the impeachment of the other.
According to the constitution of Pennsylvania, the president, who is head of the executive department, is annually
elected by a vote in which the legislative department predominates. In conjunction with an executive council, he
appoints the members of the judiciary department and forms a court of impeachments for trial of all officers,
judiciary as well as executive. The judges of the Supreme Court and justices of the peace seem also to be removable
by the legislature; and the executive power of pardoning, in certain cases, to be referred to the same department. The
members of the executive council are made EX OFFICIO justices of peace throughout the State.
In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the
two legislative branches are vice-presidents in the executive department. The executive chief, with six others
appointed, three by each of the legislative branches, constitutes the Supreme Court of Appeals; he is joined with the
legislative department in the appointment of the other judges. Throughout the States it appears that the members of
the legislature may at the same time be justices of the peace; in this State, the members of one branch of it are EX
OFFICIO justices of the peace; as are also the members of the executive council. The principal officers of the
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executive department are appointed by the legislative; and one branch of the latter forms a court of impeachments.
All officers may be removed on address of the legislature.
Maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive, and judicial
powers of government ought to be forever separate and distinct from each other. Her constitution, notwithstanding,
makes the executive magistrate appointable by the legislative department; and the members of the judiciary by the
executive department.
The language of Virginia is still more pointed on this subject. Her constitution declares "that the legislative,
executive, and judiciary departments shall be separate and distinct; so that neither exercises the powers properly
belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except
that the justices of the county courts shall be eligible to either House of Assembly." Yet we find not only this
express exception with respect to the members of the inferior courts, but that the chief magistrate, with his executive
council, are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of
the legislature; and that all the principal offices, both executive and judiciary, are filled by the same department. The
executive prerogative of pardon, also, is in one case vested in the legislative department.
The constitution of North Carolina, which declares "that the legislative, executive and supreme judicial powers of
government ought to be forever separate and distinct from each other," refers, at the same time, to the legislative
department, the appointment not only of the executive chief but all the principal officers within both that and the
judiciary department.
In South Carolina, the constitution makes the executive magistracy eligible by the legislative department. It gives to
the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and
sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the
State.
In the constitution of Georgia where it is declared "that the legislative, executive and judiciary departments shall be
separate and distinct, so that neither exercise the powers properly belonging to the other," we find that the executive
department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally
exercised by the same authority. Even justices of the peace are to be appointed by the legislature.
In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally
separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State
governments. I am fully aware that among the many excellent principles which they exemplify they carry strong
marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in
some instances the fundamental principle under consideration has been violated by too great a mixture, and even an
actual consolidation of the different powers; and that in no instance has a competent provision been made for
maintaining in practice the separation delineated on paper. What I have wished to evince is that the charge brought
against the proposed Constitution of violating a sacred maxim of free government is warranted neither by the real
meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America.
This interesting subject will be resumed in the ensuing paper.
Federalist No. 48
Publius (James Madison)
February 1, 1788
These Departments Should Not Be So Far Separated As To Have No Constitutional Control Over Each Other
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IT was shown in the last paper that the political apothegm there examined does not require that the legislative,
executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next
place, to show that unless these departments be so far connected and blended as to give to each a constitutional
control over the others, the degree of separation which the maxim requires as essential to a free government, can
never in practice be duly maintained.
It is agreed on all sides that the powers properly belonging to one of the departments ought not to be directly and
completely administered by either of the other departments. It is equally evident that none of them ought to possess,
directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will
not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the
limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their
nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for
each, against the invasion of the others. What this security ought to be is the great problem to be solved.
Will it be sufficient to mark, with precision, the boundaries of these departments in the constitution of the
government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security
which appears to have been principally relied on by the compilers of most of the American constitutions. But
experience assures us that the efficacy of the provision has been greatly overrated; and that some more adequate
defense is indispensably necessary for the more feeble against the more powerful members of the government. The
legislative department is every where extending the sphere of its activity and drawing all power into its impetuous
vortex.
The founders of our republics have so much merit for the wisdom which they have displayed that no task can be less
pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to
remark that they seem never for a moment to have turned their eyes from the danger, to liberty, from the overgrown
and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the
legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by
assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.
In a government where numerous and extensive prerogatives are placed in the hands of a hereditary monarch, the
executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal
for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions
and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious
intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up
in the same quarter. But in a representative republic where the executive magistracy is carefully limited, both in the
extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired
by a supposed influence over the people with an intrepid confidence in its own strength; which is sufficiently
numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the
objects of its passions by means which reason prescribes; it is against the enterprising ambition of this department
that the people ought to indulge all their jealousy and exhaust all their precautions.
The legislative department derives a superiority in our governments from other circumstances. Its constitutional
powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask,
under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is
not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or
will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a
narrower compass and being more simple in its nature, and the judiciary being described by landmarks still less
uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves.
Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some
constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other
departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the
former.
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I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify
this experience by particular proofs, they might be multiplied without end. I might collect vouchers in abundance
from the records and archives of every State in the Union. But as a more concise and at the same time equally
satisfactory evidence, I will refer to the example of two States, attested by two unexceptionable authorities.
The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution that
the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides
his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order
to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a
passage of some length from his very interesting Notes on the State of Virginia, p. 195. "All the powers of
government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same
hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised
by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as
oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they
are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not
only be founded on free principles, but in which the powers of government should be so divided and balanced
among several bodies of magistracy as that no one could transcend their legal limits without being effectually
checked and restrained by the others. For this reason that convention which passed the ordinance of government laid
its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct,
so that no person should exercise the powers of more than one of them at the same time. But no barrier was
provided between these several powers. The judiciary and executive members were left dependent on the legislative
for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes
executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that
case they may put their proceeding into the form of an act of Assembly, which will render them obligatory on the
other branches. They have accordingly in many instances, decided rights which should have been left to judiciary
controversy, and the direction of the executive, during the whole time of their session, is becoming habitual and
familiar."
The other State which I shall take for an example is Pennsylvania; and the other authority, the Council of Censors,
which assembled in the years 1783 and 1784. A part of the duty of this body, as marked out by the Constitution, was
"to inquire whether the Constitution had been preserved inviolate in every part; and whether the legislative and
executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or
exercised, other or greater powers than they are entitled to by the Constitution." In the execution of this trust, the
council were necessarily led to a comparison of both the legislative and executive proceedings with the
constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both
sides in the council subscribed, it appears that the Constitution had been flagrantly violated by the legislature in a
variety of important instances.
A great number of laws had been passed violating, without any apparent necessity, the rule requiring that all bills of
a public nature shall be previously printed for the consideration of the people; although this is one of the precautions
chiefly relied on by the Constitution against improper acts of the legislature.
The constitutional trial by jury had been violated and powers assumed which had not been delegated by the
Constitution.
Executive powers had been usurped.
The salaries of the judges, which the Constitution expressly requires to be fixed, had been occasionally varied; and
cases belonging to the judiciary department, frequently drawn within legislative cognizance and determination.
Those who wish to see the several particulars falling under each of these heads may consult the journals of the
council which are in print. Some of them, it will be found, may be imputable to peculiar circumstances connected
with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted
government.
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It appears, also, that the executive department had not been innocent of frequent breaches of the Constitution. There
are three observations, however, which ought to be made on this head: first, a great proportion of the instances were
either immediately produced by the necessities of the war, or recommended by Congress or the commander-in-chief;
second, in most of the other instances they conformed either to the declared or the known sentiments of the
legislative department; third, the executive department of Pennsylvania is distinguished from that of the other States
by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an
executive council. And being at once exempt from the restraint of an individual responsibility for the acts of the
body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course,
be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands.
The conclusion which I am warranted in drawing from these observations is that a mere demarcation on parchment
of the constitutional limits of the several departments is not a sufficient guard against those encroachments which
lead to a tyrannical concentration of all the powers of government in the same hands.
Federalist No. 51
Publius (James Madison)
February 6, 1788
The Structure Of The Government Must Furnish The Proper Checks And Balances Between The Different
Departments
TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power
among the several departments as laid down in the Constitution? The only answer that can be given is that as all
these exterior provisions are found to be inadequate the defect must be supplied, by so contriving the interior
structure of the government as that its several constituent parts may, by their mutual relations, be the means of
keeping each other in their proper places. Without presuming to undertake a full development of this important idea
I will hazard a few general observations which may perhaps place it in a clearer light, and enable us to form a more
correct judgment of the principles and structure of the government planned by the convention.
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which
to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each
department should have a will of its own; and consequently should be so constituted that the members of each
should have as little agency as possible in the appointment of the members of the others. Were this principle
rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary
magistracies should be drawn from the same fountain of authority, the people, through channels having no
communication whatever with one another. Perhaps such a plan of constructing the several departments would be
less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional
expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the
constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle:
first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select
that mode of choice which best secures these qualifications; second, because the permanent tenure by which the
appointments are held in that department must soon destroy all sense of dependence on the authority conferring
them.
It is equally evident that the members of each department should be as little dependent as possible on those of the
others for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of
the legislature in this particular, their independence in every other would be merely nominal.
But the great security against a gradual concentration of the several powers in the same department consists in
giving to those who administer each department the necessary constitutional means and personal motives to resist
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encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to
the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with
the constitutional rights of the place. It may be a reflection on human nature that such devices should be necessary to
control the abuses of government. But what is government itself but the greatest of all reflections on human nature?
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a government which is to be administered by men over men,
the great difficulty lies in this: You must first enable the government to control the governed; and in the next place
oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but
experience has taught mankind the necessity of auxiliary precautions.
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the
whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate
distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that
each may be a check on the other—that the private interest of every individual may be a sentinel over the public
rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state.
But it is not possible to give to each department an equal power of self-defense. In republican government the
legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into
different branches; and to render them, by different modes of election and different principles of action, as little
connected with each other as the nature of their common functions and their common dependence on the society will
admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the
weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require,
on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the
natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether
safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on
extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by
some qualified connection between this weaker department and the weaker branch of the stronger department, by
which the latter may be led to support the constitutional rights of the former, without being too much detached from
the rights of its own department?
If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied
as a criterion to the several State constitutions, and to the federal Constitution, it will be found that if the latter does
not perfectly correspond with them, the former are infinitely less able to bear such a test.
There are, moreover, two considerations particularly applicable to the federal system of America, which place that
system in a very interesting point of view.
First. In a single republic, all the power surrendered by the people is submitted to the administration of a single
government; and usurpations are guarded against by a division of the government into distinct and separate
departments. In the compound republic of America, the power surrendered by the people is first divided between
two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.
Hence a double security arises to the rights of the people. The different governments will control each other, at the
same time that each will be controlled by itself.
Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to
guard one part of the society against the injustice of the other part. Different interests necessarily exist in different
classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There
are but two methods of providing against this evil: the one by creating a will in the community independent of the
majority—that is, of the society itself; the other, by comprehending in the society so many separate descriptions of
citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The
first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a
precarious security; because a power independent of the society may as well espouse the unjust views of the major
as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will
be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and
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dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that
the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a
free government the security for civil rights must be the same as that for religious rights. It consists in the one case
in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will
depend on the number of interests and sects; and this may be presumed to depend on the extent of country and
number of people comprehended under the same government. This view of the subject must particularly recommend
a proper federal system to all the sincere and considerate friends of republican government, since it shows that in
exact proportion as the territory of the Union may be formed into more circumscribed Confederacies or States,
oppressive combinations of a majority will be facilitated; the best security, under the republican forms, for the rights
of every class of citizen, will be diminished; and consequently the stability and independence of some member of
the government, the only other security, must be proportionally increased. Justice is the end of government. It is the
end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the
pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy
may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence
of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their
condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will
the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will
protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island
was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government
within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power
altogether independent of the people would soon be called for by the voice of the very factions whose misrule had
proved the necessity of it. In the extended republic of the United States, and among the great variety of interests,
parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any
other principles than those of justice and the general good; whilst there being thus less danger to a minor from the
will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into
the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no
less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger
the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government. And
happily for the republican cause, the practicable sphere may be carried to a very great extent by a judicious
modification and mixture of the federal principle.
Federalist No. 52
Publius (James Madison)
February 8, 1788
The House Of Representatives
FROM the more general inquiries pursued in the four last papers, I pass on to a more particular examination of the
several parts of the government. I shall begin with the House of Representatives.
The first view to be taken of this part of the government relates to the qualifications of the electors and the elected.
Those of the former are to be the same with those of the electors of the most numerous branch of the State
legislatures. The definition of the right of suffrage is very justly regarded as a fundamental article of republican
government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To
have left it open for the occasional regulation of the Congress would have been improper for the reason just
mentioned. To have submitted it to the legislative discretion of the States would have been improper for the same
reason; and for the additional reason that it would have rendered too dependent on the State governments that branch
of the federal government which ought to be dependent on the people alone. To have reduced the different
qualifications in the different States to one uniform rule would probably have been as dissatisfactory to some of the
States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to
be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the
standard already established, or which may be established, by the State itself. It will be safe to the United States
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because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared
that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured
to them by the federal Constitution.
The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at
the same time more susceptible of uniformity, have been very properly considered and regulated by the convention.
A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen
of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the
time of his service, must be in no office under the United States. Under these reasonable limitations, the door of this
part of the federal government is open to merit of every description, whether native or adoptive, whether young or
old, and without regard to poverty or wealth, or to any particular profession of religious faith.
The term for which the representatives are to be elected falls under a second view which may be taken of this
branch. In order to decide on the propriety of this article, two questions must be considered: first, whether biennial
elections will, in this case, be safe; second, whether they be necessary or useful.
First. As it is essential to liberty that the government in general should have a common interest with the people, so it
is particularly essential that the branch of it under consideration should have an immediate dependence on, and an
intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence
and sympathy can be effectually secured. But what particular degree of frequency may be absolutely necessary for
the purpose, does not appear to be susceptible of any precise calculation, and must depend on a variety of
circumstances with which it may be connected. Let us consult experience, the guide that ought always to be
followed whenever it can be found.
The scheme of representation as a substitute for a meeting of the citizens in person being at most but very
imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples. And
even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few
examples which are best known, and which bear the greatest analogy to our particular case. The first to which this
character ought to be applied, is the House of Commons in Great Britain. The history of this branch of the English
Constitution, anterior to the date of Magna Charta, is too obscure to yield instruction. The very existence of it has
been made a question among political antiquaries. The earliest records of subsequent date prove that parliaments
were to sit only every year; not that they were to be elected every year. And even these annual sessions were left so
much at the discretion of the monarch, that, under various pretexts, very long and dangerous intermissions were
often contrived by royal ambition. To remedy this grievance, it was provided by a statute in the reign of Charles II
that the intermissions should not be protracted beyond a period of three years. On the accession of William III, when
a revolution took place in the government, the subject was still more seriously resumed, and it was declared to be
among the fundamental rights of the people that parliaments ought to be held frequently. By another statute, which
passed a few years later in the same reign, the term "frequently," which had alluded to the triennial period settled in
the time of Charles II, is reduced to a precise meaning, it being expressly enacted that a new parliament shall be
called within three years after the termination of the former. The last change, from three to seven years, is well
known to have been introduced pretty early in the present century, under on alarm for the Hanoverian succession.
From these facts it appears that the greatest frequency of elections which has been deemed necessary in that
kingdom for binding the representatives to their constituents does not exceed a triennial return of them. And if we
may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in
the parliamentary Constitution, we cannot doubt that a reduction of the period from seven to three years, with the
other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us
that biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the
House of Representatives on their constituents.
Elections in Ireland, till of late, were regulated entirely by the discretion of the crown, and were seldom repeated,
except on the accession of a new prince, or some other contingent event. The Parliament which commenced with
George II was continued throughout his whole reign, a period of about thirty-five years. The only dependence of the
representatives on the people consisted in the right of the latter to supply occasional vacancies by the election of new
members, and in the chance of some event which might produce a general new election. The ability also of the Irish
parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled
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by the control of the crown over the subjects of their deliberation. Of late, these shackles, if I mistake not, have been
broken; and octennial parliaments have besides been established. What effect may be produced by this partial reform
must be left to further experience. The example of Ireland, from this view of it, can throw but little light on the
subject. As far as we can draw any conclusion from it, it must be that if the people of that country have been able
under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to
them every degree of liberty, which might depend on a due connection between their representatives and
themselves.
Let us bring our inquiries nearer home. The example of these States, when British colonies, claims particular
attention, at the same time that it is so well known as to require little to be said on it. The principle of representation,
in one branch of the legislature at least, was established in all of them. But the periods of election were different.
They varied from one to seven years. Have we any reason to infer, from the spirit and conduct of the representatives
of the people, prior to the Revolution, that biennial elections would have been dangerous to the public liberties? The
spirit which everywhere displayed itself at the commencement of the struggle, and which vanquished the obstacles
to independence, is the best of proofs that a sufficient portion of liberty had been everywhere enjoyed to inspire both
a sense of its worth and a zeal for its proper enlargement. This remark holds good as well with regard to the then
colonies whose elections were least frequent, as to those whose elections were most frequent. Virginia was the
colony which stood first in resisting the parliamentary usurpations of Great Britain; it was the first also in espousing,
by public act, the resolution of independence. In Virginia, nevertheless, if I have not been misinformed, elections
under the former government were septennial. This particular example is brought into view, not as a proof of any
peculiar merit, for the priority in those instances was probably accidental; and still less of any advantage in
septennial elections, for when compared with a greater frequency they are inadmissible; but merely as a proof, and I
conceive it to be a very substantial proof, that the liberties of the people can be in no danger from biennial elections.
The conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances.
The first is, that the federal legislature will possess a part only of that supreme legislative authority which is vested
completely in the British Parliament; and which, with a few exceptions, was exercised by the colonial assemblies
and the Irish legislature. It is a received and well-founded maxim that where no other circumstances affect the case,
the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely
may its duration be protracted. In the second place it has, on another occasion, been shown that the federal
legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will
be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not.
And in the third place, no comparison can be made between the means that will be possessed by the more permanent
branches of the federal government for seducing, if they should be disposed to seduce, the House of Representatives
from their duty to the people, and the means of influence over the popular branch possessed by the other branches of
the government above cited. With less power, therefore, to abuse, the federal representatives can be less tempted on
one side, and will be doubly watched on the other.
Federalist No. 53
Publius (James Madison)
February 9, 1788
The Same Subject Continued
I SHALL here, perhaps, be reminded of a current observation, "that where annual elections end, tyranny begins." If
it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is
not less true that when once established they are often applied to cases to which the reason of them does not extend.
I need not look for a proof beyond the case before us. What is the reason on which this proverbial observation is
founded? No man will subject himself to the ridicule of pretending that any natural connection subsists between the
sun or the seasons, and the period within which human virtue can bear the temptations of power. Happily for
mankind, liberty is not, in this respect, confined to any single point of time, but lies within extremes, which afford
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sufficient latitude for all the variations which may be required by the various situations and circumstances of civil
society. The election of magistrates might be, if it were found expedient, as in some instances it actually has been,
daily, weekly, or monthly, as well as annual; and if circumstances may require a deviation from the rule on one side,
why not also on the other side? Turning our attention to the periods established among ourselves, for the election of
the most numerous branches of the State legislatures, we find them by no means coinciding any more in this
instance than in the elections of other civil magistrates. In Connecticut and Rhode Island, the periods are half-yearly.
In the other States, South Carolina excepted, they are annual. In South Carolina they are biennial--as is proposed in
the federal government. Here is a difference, as four to one, between the longest and shortest periods; and yet it
would be not easy to show, that Connecticut or Rhode Island is better governed, or enjoys a greater share of rational
liberty, than South Carolina; or that either the one or the other of these States is distinguished in these respects, and
by these causes, from the States whose elections are different from both.
In searching for the grounds of this doctrine, I can discover but one, and that is wholly inapplicable to our case. The
important distinction so well understood in America between a Constitution established by the people and
unalterable by the government, and a law established by the government and alterable by the government, seems to
have been little understood and less observed in any other country. Wherever the supreme power of legislation has
resided, has been supposed to reside also a full power to change the form of the government. Even in Great Britain,
where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of
the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable as well with
regard to the Constitution as the ordinary objects of legislative provision. They have accordingly, in several
instances, actually changed, by legislative acts, some of the most fundamental articles of the government. They have
in particular, on several occasions, changed the period of election; and, on the last occasion, not only introduced
septennial in place of triennial elections, but by the same act, continued themselves in place four years beyond the
term for which they were elected by the people. An attention to these dangerous practices has produced a very
natural alarm in the votaries of free government, of which frequency of elections is the cornerstone; and has led
them to seek for some security to liberty, against the danger to which it is exposed. Where no Constitution,
paramount to the government, either existed or could be obtained, no constitutional security, similar to that
established in the United States, was to be attempted. Some other security, therefore, was to be sought for; and what
better security would the case admit than that of selecting and appealing to some simple and familiar portion of time
as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic
exertions? The most simple and familiar portion of time applicable to the subject was that of a year; and hence the
doctrine has been inculcated by a laudable zeal to erect some barrier against the gradual innovations of an unlimited
government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point
of annual elections. But what necessity can there be of applying this expedient to a government limited, as the
federal government will be, by the authority of a paramount Constitution? Or who will pretend that the liberties of
the people of America will not be more secure under biennial elections, unalterably fixed by such a Constitution,
than those of any other nation would be, where elections were annual, or even more frequent, but subject to
alterations by the ordinary power of the government?
The second question stated is whether biennial elections be necessary or useful. The propriety of answering this
question in the affirmative will appear from several very obvious considerations.
No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain
degree of knowledge of the subjects on which he is to legislate. A part of this knowledge may be acquired by means
of information which lie within the compass of men in private as well as public stations. Another part can only be
attained, or at least thoroughly attained, by actual experience in the station which requires the use of it. The period of
service ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to
the due performance of the service. The period of legislative service established in most of the States for the more
numerous branch is, as we have seen, one year. The question then may be put into this simple form: does the period
of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the
knowledge requisite for State legislation? The very statement of the question, in this form, suggests the answer that
ought to be given to it.
In a single State, the requisite knowledge relates to the existing laws which are uniform throughout the State and
with which all the citizens are more or less conversant; and to the general affairs of the State, which lie within a
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small compass, are not very diversified, and occupy much of the attention and conversation of every class of people.
The great theatre of the United States presents a very different scene. The laws are so far from being uniform that
they vary in every State; whilst the public affairs of the Union are spread throughout a very extensive region and are
extremely diversified by the local affairs connected with them, and can with difficulty be correctly learnt in any
other place than in the central councils, to which a knowledge of them will be brought by the representatives of
every part of the empire. Yet some knowledge of the affairs, and even of the laws, of all the States, ought to be
possessed by the members from each of the States. How can foreign trade be properly regulated by uniform laws
without some acquaintance with the commerce, the ports, the usages, and the regulatious of the different States?
How can the trade between the different States be duly regulated without some knowledge of their relative situations
in these and other points? How can taxes be judiciously imposed and effectually collected if they be not
accommodated to the different laws and local circumstances relating to these objects in the different States? How
can uniform regulations for the militia be duly provided, without a similar knowledge of many internal
circumstances by which the States are distinguished from each other? These are the principal objects of federal
legislation and suggest most forcibly the extensive information which the representatives ought to acquire. The other
interior objects will require a proportional degree of information with regard to them.
It is true that all these difficulties will, by degrees, be very much diminished. The most laborious task will be the
proper inauguration of the government and the primeval formation of a federal code. Improvements on the first
draughts will every year become both easier and fewer. Past transactions of the government will be a ready and
accurate source of information to new members. The affairs of the Union will become more and more objects of
curiosity and conversation among the citizens at large. And the increased intercourse among those of different States
will contribute not a little to diffuse a mutual knowledge of their affairs, as this again will contribute to a general
assimilation of their manners and laws. But with all these abatements, the business of federal legislation must
continue so far to exceed, both in novelty and difficulty, the legislative business of a single State, as to justify the
longer period of service assigned to those who are to transact it.
A branch of knowledge which belongs to the acquirements of a federal representative and which has not been
mentioned is that of foreign affairs. In regulating our own commerce, he ought to be not only acquainted with the
treaties between the United States and other nations, but also with the commercial policy and laws of other nations.
He ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal
legislation, is submitted to the federal government. And although the House of Representatives is not immediately to
participate in foreign negotiations and arrangements, yet from the necessary connection between the several
branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of
legislation and will sometimes demand particular legislative sanction and co-operation. Some portion of this
knowledge may, no doubt, be acquired in a man’s closet; but some of it also can only be derived from the public
sources of information; and all of it will be acquired to best effect by a practical attention to the subject during the
period of actual service in the legislature.
There are other considerations, of less importance perhaps, but which are not unworthy of notice. The distance
which many of the representatives will be obliged to travel and the arrangements rendered necessary by that
circumstance might be much more serious objections with fit men to this service, if limited to a single year, than if
extended to two years. No argument can be drawn on this subject from the case of the delegates to the existing
Congress. They are elected annually, it is true; but their re-election is considered by the legislative assemblies almost
as a matter of course. The election of the representatives by the people would not be governed by the same principle.
A few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections,
become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to
avail themselves of those advantages. The greater the proportion of new members and the less the information of the
bulk of the members, the more apt will they be to fall into the snares that may be laid for them. This remark is no
less applicable to the relation which will subsist between the House of Representatives and the Senate.
It is an inconvenience mingled with the advantages of our frequent elections, even in single States, where they are
large, and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in
time for the decision to have its due effect. If a return can be obtained, no matter by what unlawful means, the
irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes. Hence,
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a very pernicious encouragement is given to the use of unlawful means for obtaining irregular returns. Were
elections for the federal legislature to be annual this practice might become a very serious abuse, particularly in the
more distant States. Each house is, as it necessarily must be, the judge of the elections, qualifications, and returns of
its members; and whatever improvements may be suggested by experience for simplifying and accelerating the
process in disputed cases, so great a portion of a year would unavoidably elapse before an illegitimate member could
be dispossessed of his seat that the prospect of such an event would be little check to unfair and illicit means of
obtaining a seat.
All these considerations taken together warrant us in affirming that biennial elections will be as useful to the affairs
of the public as we have seen that they will be safe to the liberty of the people.
Federalist No. 54
Publius (James Madison)
February 12, 1788
The Apportionment Of Members Among The States
THE next view which I shall take of the House of Representatives relates to the apportionment of its members to the
several States, which is to be determined by the same rule with that of direct taxes.
It is not contended that the number of people in each State ought not to be the standard for regulating the proportion
of those who are to represent the people of each State. The establishment of the same rule for the apportionment of
taxes will probably be as little contested; though the rule itself, in this case, is by no means founded on the same
principle. In the former case, the rule is understood to refer to the personal rights of the people, with which it has a
natural and universal connection. In the latter, it has reference to the proportion of wealth of which it is in no case a
precise measure, and in ordinary cases a very unfit one. But notwithstanding the imperfection of the rule as applied
to the relative wealth and contributions of the States, it is evidently the least exceptionable among the practicable
rules, and had too recently obtained the general sanction of America not to have found a ready preference with the
convention.
All this is admitted, it will perhaps be said; but does it follow, from an admission of numbers for the measure of
representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included in the
numerical rule of representation? Slaves are considered as property, not as persons. They ought therefore to be
comprehended in estimates of taxation which are founded on property, and to be excluded from representation
which is regulated by a census of persons. This is the objection, as I understand it, stated in its full force. I shall be
equally candid in stating the reasoning which may be offered on the opposite side.
"We subscribe to the doctrine," might one of our Southern brethren observe, "that representation relates more
immediately to persons, and taxation more immediately to property, and we join in the application of this distinction
to the case of our slaves. But we must deny the fact that slaves are considered merely as property, and in no respect
whatever as persons. The true state of the case is that they partake of both these qualities: being considered by our
laws, in some respects, as persons, and in other respects as property. In being compelled to labor, not for himself,
but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained
in his liberty and chastised in his body, by the capricious will of another—the slave may appear to be degraded
from the human rank, and classed with those irrational animals which fall under the legal denomination of property.
In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master
of his labor and his liberty; and in being punishable himself for all violence committed against others—the slave is
no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral
person, not as a mere article of property. The federal Constitution, therefore, decides with great propriety on the case
of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true
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character. It is the character bestowed on them by the laws under which they live; and it will not be denied that these
are the proper criterion; because it is only under the pretext that the laws have transformed the Negroes into subjects
of property that a place is disputed them in the computation of numbers; and it is admitted that if the laws were to
restore the rights which have been taken away, the Negroes could no longer be refused an equal share of
representation with the other inhabitants.
"This question may be placed in another light. It is agreed on all sides that numbers are the best scale of wealth and
taxation, as they are the only proper scale of representation. Would the convention have been impartial or consistent,
if they had rejected the slaves from the list of inhabitants when the shares of representation were to be calculated,
and inserted them on the lists when the tariff of contributions was to be adjusted? Could it be reasonably expected
that the Southern States would concur in a system which considered their slaves in some degree as men when
burdens were to be imposed, but refused to consider them in the same light when advantages were to be conferred?
Might not some surprise also be expressed that those who reproach the Southern States with the barbarous policy of
considering as property a part of their human brethren should themselves contend that the government to which all
the States are to be parties ought to consider this unfortunate race more completely in the unnatural light of property
than the very laws of which they complain?
"It may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the States
possessing them. They neither vote themselves nor increase the votes of their masters. Upon what principle, then,
ought they to be taken into the federal estimate of representation? In rejecting them altogether, the Constitution
would, in this respect, have followed the very laws which have been appealed to as the proper guide.
"This objection is repelled by a single observation. It is a fundamental principle of the proposed Constitution that as
the aggregate number of representatives allotted to the several States is to be determined by a federal rule founded
on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exercised
by such part of the inhabitants as the State itself may designate. The qualifications on which the right of suffrage
depend are not, perhaps, the same in any two States. In some of the States the difference is very material. In every
State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who will be
included in the census by which the federal Constitution apportions the representatives. In this point of view the
Southern States might retort the complaint by insisting that the principle laid down by the convention required that
no regard should be had to the policy of particular States towards their own inhabitants; and consequently that the
slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with
other inhabitants, who, by the policy of other States, are not admitted to all the rights of citizens. A rigorous
adherence, however, to this principle is waived by those who would be gainers by it. All that they ask is that equal
moderation be shown on the other side. Let the case of the slaves be considered, as it is in truth a peculiar one. Let
the compromising expedient of the Constitution be mutually adopted which regards them as inhabitants, but as
debased by servitude below the equal level of free inhabitants, which regards the slave as divested of two fifths of
the man.
"After all, may not another ground be taken on which this article of the Constitution will admit of a still more ready
defense? We have hitherto proceeded on the idea that representation related to persons only, and not at all to
property. But is it a just idea? Government is instituted no less for protection of the property than of the persons of
individuals. The one as well as the other, therefore, may be considered as represented by those who are charged with
the government. Upon this principle it is that in several of the States, and particularly in the State of New York, one
branch of the government is intended more especially to be the guardian of property and is accordingly elected by
that part of the society which is most interested in this object of government. In the federal Constitution, this policy
does not prevail. The rights of property are committed into the same hands with the personal rights. Some attention
ought, therefore, to be paid to property in the choice of those hands.
"For another reason, the votes allowed in the federal legislature to the people of each State ought to bear some
proportion to the comparative wealth of the States. States have not, like individuals, an influence over each other,
arising from superior advantages of fortune. If the law allows an opulent citizen but a single vote in the choice of his
representative, the respect and consequence which he derives from his fortunate situation very frequently guide the
votes of others to the objects of his choice; and through this imperceptible channel the rights of property are
conveyed into the public representation. A State possesses no such influence over other States. It is not probable that
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the richest State in the Confederacy will ever influence the choice of a single representative in any other State. Nor
will the representatives of the larger and richer States possess any other advantage in the federal legislature over the
representatives of other States than what may result from their superior number alone. As far, therefore, as their
superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior
share of representation. The new Constitution is, in this respect, materially different from the existing Confederation,
as well as from that of the United Netherlands, and other similar confederacies. In each of the latter, the efficacy of
the federal resolutions depends on the subsequent and voluntary resolutions of the States composing the union.
Hence the States, though possessing an equal vote in the public councils, have an unequal influence, corresponding
with the unequal importance of these subsequent and voluntary resolutions. Under the proposed Constitution, the
federal acts will take effect without the necessary intervention of the individual States. They will depend merely on
the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or
smaller State, or a State more or less wealthy or powerful, will have an equal weight and efficacy: in the same
manner as the votes individually given in a State legislature, by the representatives of unequal counties or other
districts, have each a precise equality of value and effect; or if there be any difference in the case, it proceeds from
the difference in the personal character of the individual representative, rather than from any regard to the extent of
the district from which he comes."
Such is the reasoning which an advocate for the Southern interests might employ on this subject; and although it
may appear to be a little strained in some points, yet on the whole, I must confess that it fully reconciles me to the
scale of representation which the convention have established.
In one respect, the establishment of a common measure for representation and taxation will have a very salutary
effect. As the accuracy of the census to be obtained by the Congress will necessarily depend, in a considerable
degree, on the disposition, if not on the co-operation of the States, it is of great importance that the States should feel
as little bias as possible to swell or to reduce the amount of their numbers. Were their share of representation alone
to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide
their share of taxation alone, a contrary temptation would prevail. By extending the rule to both objects, the States
will have opposite interests which will control and balance each other and produce the requisite impartiality.
Federalist No. 57
Publius (James Madison)
February 19, 1788
The Alleged Tendency Of The New Plan To Elevate The Few At The Expense Of The Many Considered In
Connection With Representation
THE third charge against the House of Representatives is that it will be taken from that class of citizens which will
have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to
the aggrandizement of the few.
Of all the objections which have been framed against the federal Constitution, this is perhaps the most extraordinary.
Whilst the objection itself is levelled against a pretended oligarchy, the principle of it strikes at the very root of
republican government.
The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to
discern, and most virtue to pursue, the common good of the society, and in the next place, to take the most effectual
precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining
rulers is the characteristic policy of republican government. The means relied on in this form of government for
preventing their degeneracy are numerous and various. The most effectual one is such a limitation of the term of
appointments as will maintain a proper responsibility to the people.
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Let me now ask what circumstance there is in the constitution of the House of Representatives that violates the
principles of republican government, or favors the elevation of the few on the ruins of the many? Let me ask
whether every circumstance is not, on the contrary, strictly conformable to these principles, and scrupulously
impartial to the rights and pretensions of every class and description of citizens?
Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more
than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and
unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the
same who exercise the right in every State of electing the corresponding branch of the legislature of the State.
Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and
confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to
fetter the judgement or disappoint the inclination of the people.
If we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the
representative trust, we shall find it involving every security which can be devised or desired for their fidelity to
their constituents.
In the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume
that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which
promise a sincere and scrupulous regard to the nature of their engagements.
In the second place, they will enter into the public service under circumstances which cannot fail to produce a
temporary affection at least to their constituents. There is in every breast a sensibility to marks of honor, of favor, of
esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and
benevolent returns. Ingratitude is a common topic of declamation against human nature; and it must be confessed
that instances of it are but too frequent and flagrant, both in public and in private life. But the universal and extreme
indignation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment.
In the third place, those ties which bind the representative to his constituents are strengthened by motives of a more
selfish nature. His pride and vanity attach him to a form of government which favors his pretensions and gives him a
share in its honors and distinctions. Whatever hopes or projects might be entertained by a few aspiring characters, it
must generally happen that a great proportion of the men deriving their advancement from their influence with the
people would have more to hope from a preservation of the favor than from innovations in the government
subversive of the authority of the people.
All these securities, however, would be found very insufficient without the restraint of frequent elections. Hence, in
the fourth place the House of Representatives is so constituted as to support in the members an habitual recollection
of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation
can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to
cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were
raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal
of it.
I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive
measures, that they can make no law which will not have its full operation on themselves and their friends, as well
as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy
can connect the rulers and the people together. It creates between them that communion of interests and sympathy of
sentiments of which few governments have furnished examples; but without which every government degenerates
into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in
favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just
and constitutional laws; and, above all, the vigilant and manly spirit which actuates the people of America—a spirit
which nourishes freedom, and in return is nourished by it.
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If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the
people, the people will be prepared to tolerate anything but liberty.
Such will be the relation between the House of Representatives and their constituents. Duty, gratitude, interest,
ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the
people. It is possible that these may all be insufficient to control the caprice and wickedness of man. But are they not
all that government will admit, and that human prudence can devise? Are they not the genuine and the characteristic
means by which republican government provides for the liberty and happiness of the people? Are they not the
identical means on which every State government in the Union relies for the attainment of these important ends?
What, then, are we to understand by the objection which this paper has combated? What are we to say to the men
who profess the most flaming zeal for republican government, yet boldly impeach the principle of it; who pretend to
be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will
prefer those only who will immediately and infallibly betray the trust committed to them?
Were the objection to be read by one who had not seen the mode prescribed by the Constitution for the choice of
representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to
the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least
that the mode prescribed by the State constitutions was, in some respect or other, very grossly departed from. We
have seen how far such a supposition would err, as to the two first points. Nor would it, in fact, be less erroneous as
to the last. The only difference discoverable between the two cases is that each representative of the United States
will be elected by five or six thousand citizens; whilst in the individual States, the election of a representative is left
to about as many hundreds. Will it be pretended that this difference is sufficient to justify an attachment to the State
governments and an abhorrence to the federal government? If this be the point on which the objection turns, it
deserves to be examined.
Is it supported by reason? This cannot be said, without maintaining that five or six thousand citizens are less capable
of choosing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. Reason, on
the contrary, assures us that as in so great a number a fit representative would be most likely to be found, so the
choice would be less likely to be diverted from him by the intrigues of the ambitious or the ambitious or the bribes
of the rich.
Is the consequence from this doctrine admissible? If we say that five or six hundred citizens are as many as can
jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public
servants in every instance where the administration of the government does not require as many of them as will
amount to one for that number of citizens?
Is the doctrine warranted by facts? It was shown in the last paper that the real representation in the British House of
Commons very little exceeds the proportion of one for every thirty thousand inhabitants. Besides a variety of
powerful causes not existing here, and which favor in that country the pretensions of rank and wealth, no person is
eligible as a representative of a county unless he possess real estate of the clear value of six hundred pounds sterling
per year; nor of a city or borough, unless he possess a like estate of half that annual value. To this qualification on
the part of the county representatives is added another on the part of the county electors, which restrains the right of
suffrage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to
the present rate of money. Notwithstanding these unfavorable circumstances, and notwithstanding some very
unequal laws in the British code, it cannot be said that the representatives of the nation have elevated the few on the
ruins of the many.
But we need not resort to foreign experience on this subject. Our own is explicit and decisive. The districts in New
Hampshire in which the senators are chosen immediately by the people, are nearly as large as will be necessary for
her representatives in the Congress. Those of Massachusetts are larger than will be necessary for that purpose; and
those of New York still more so. In the last State the members of Assembly for the cities and counties of New York
and Albany are elected by very nearly as many voters as will be entitled to a representative in the Congress,
calculating on the number of sixty-five representatives only. It makes no difference that in these senatorial districts
and counties a number of representatives are voted for by each elector at the same time. If the same electors at the
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same time are capable of choosing four or five representatives, they cannot be incapable of choosing one.
Pennsylvania is an additional example. Some of her counties, which elect her State representatives, are almost as
large as her districts will be by which her federal representatives will be elected. The city of Philadelphia is
supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice
of federal representatives. It forms, however, but one county, in which every elector votes for each of its
representatives in the State legislature. And what may appear to be still more directly to our purpose, the whole city
actually elects a single member for the executive council. This is the case in all the other counties of the State.
Are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the
federal government under consideration? Has it appeared on trial that the senators of New Hampshire,
Massachusetts, and New York, or the executive council of Pennsylvania, or the members of the Assembly in the two
last States, have betrayed any peculiar disposition to sacrifice the many to the few, or are in any respect less worthy
of their places than the representatives and magistrates appointed in other States by very small divisions of the
people?
But there are cases of a stronger complexion than any which I have yet quoted. One branch of the legislature of
Connecticut is so constituted that each member of it is elected by the whole State. So is the governor of that State, of
Massachusetts, and of this State, and the president of New Hampshire. I leave every man to decide whether the
result of any one of these experiments can be said to countenance a suspicion that a diffusive mode of choosing
representatives of the people tends to elevate traitors and to undermine the public liberty.
PUBLIUS.
Federalist No. 59
Publius (Alexander Hamilton)
February 22, 1788
Concerning The Power Of Congress To Regulate The Election Of Members
THE natural order of the subject leads us to consider, in this place, that provision of the Constitution which
authorizes the national legislature to regulate, in the last resort, the election of its own members. It is in these words:
"The times, places, and manner of holding elections for senators and representatives shall be prescribed in each
State by the legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as
to the places of choosing senators." This provision has not only been declaimed against by those who condemn the
Constitution in the gross; but it has been censured by those who have objected with less latitude and greater
moderation; and, in one instance, it has been thought exceptionable by a gentleman who has declared himself the
advocate of every other part of the system.
I am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than
this. Its propriety rests upon the evidence of this plain proposition, that every governmnet ought to contains in itslef
the means of its own preservation. Every just reasoner will, at first sight, approve an adherence to this rule, in the
work of the convention; and will disapprove every deviation from it which may not appear to have been dictated by
the necessity of incorporating into the work some particular ingredient with which a rigid conformity to the rule was
incompatible. Even in this case, though he may acquiesce in the necessity, yet he will not cease to regard and to
regret a departure from so fundamental a principle as a portion of imperfection in the system which may prove the
seed of future weakness, and perhaps anarchy.
It will not be alleged that an election law could have been framed and inserted in the Constitution which would have
been always applicable to every probable change in the situation of the country; and it will therefore not be denied
that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded that
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there were only three ways in which this power could have been reasonably modified and disposed: that it must
either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the
latter and ultimately in the former. The last mode has, with reason, been preferred by the convention. They have
submitted the regulation of elections for the federal government, in the first instance, to the local administrations;
which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory;
but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might
render that interposition necessary to its safety.
Nothing can be more evident than that an exclusive power of regulating elections for the national government, in the
hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any
moment annihilate it by neglecting to provide for the choice of persons to administer its affairs. It is to little purpose
to say that a neglect or omission of this kind would not be likely to take place. The constitutional possibility of the
thing, without an equivalent for the risk, is an unanswerable objection. Nor has any satisfactory reason been yet
assigned for incurring that risk. The extravagant surmises of a distempered jealousy can never be dignified with that
character. If we are in a humor to presume abuses of power, it is as fair to presume them on the part of the State
governments as on the part of the general government. And as it is more consonant to the rules of a just theory to
trust the Union with the care of its own existence than to transfer that care to any other hands, if abuses of power are
to be hazarded on the one side or on the other, it is more rational to hazard them where the power would naturally be
placed than where it would unnaturally be placed.
Suppose an article had been introduced into the Constitution empowering the United States to regulate the elections
for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of
power and as a premeditated engine for the destruction of the State governments? The violation of principle, in this
case, would have required no comment; and, to an unbiased observer, it will not be less apparent in the project of
subjecting the existence of the national government, in a similar respect, to the pleasure of the State governments.
An impartial view of the matter cannot fail to result in a conviction that each, as far as possible, ought to depend on
itself for its own preservation.
As an objection to this position, it may be remarked that the constitution of the national Senate would involve, in its
full extent, the danger which it is suggested might flow from an exclusive power in the State legislatures to regulate
the federal elections. It may be alleged that by declining the appointment of senators they might at any time give a
fatal blow to the Union; and from this it may be inferred that as its existence would be thus rendered dependent upon
them in so essential a point, there can be no objection to intrusting them with it in the particular case under
consideration. The interest of each State, it may be added, to maintain its representation in the national councils,
would be a complete security against an abuse of the trust.
This argument, though specious, will not, upon examination, be found solid. It is certainly true that the State
legislatures, by forbearing the appointment of senators, may destroy the national government. But it will not follow
that, because they have a power to do this in one instance, they ought to have it in every other. There are cases in
which the pernicious tendency of such a power may be far more decisive, without any motive equally cogent with
that which must have regulated the conduct of the convention in respect to the convention of the Senate to
recommend their admission into the system. So far as that construction may expose the Union to the possibility of
injury from the State legislatures, it is an evil; but it is an evil which could not have been avoided without excluding
the States, in their political capacities, wholly from a place in the organization of the national government. If this
had been done it would doubtless have been interpreted into an entire dereliction of the federal principle, and would
certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision.
But however wise it may have been to have submitted in this instance to an inconvenience, for the attainment of a
necessary advantage or a greater good, no inference can be drawn from thence to favor an accumulation of the evil,
where no necessity urges, nor any greater good invites.
It may be easily discerned also that the national government would run a much greater risk from a power in the State
legislatures over the elections of its House of Representatives than from their power of appointing the members of
its Senate. The senators are to be chosen for the period of six years; there is to be a rotation, by which the seats of a
third part of them are to be vacated and replenished every two years; and no State is to be entitled to more than two
senators; a quorum of the body is to consist of sixteen members. The joint result of these circumstances would be
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that a temporary combination of a few States to intermit the appointment of senators could neither annul the
existence nor impair the activity of the body; and it is not from a general and permanent combination of the States
that we can have any thing to fear. The first might proceed from sinister designs in the leading members of a few of
the State legislatures; the last would suppose a fixed and rooted disaffection in the great body of the people which
will either never exist at all, or will, in all probability, proceed from an experience of the inaptitude of the general
government to the advancement of their happiness—in which event no good citizen could desire its continuance.
But with regard to the federal House of Representatives, there is intended to be a general election of members once
in two years. If the State legislatures were to be invested with an exclusive power of regulating these elections, every
period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the
Union, if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent
an election.
I shall not deny that there is a degree of weight in the observation that the interests of each State, to be represented in
the federal councils, will be a security against the abuse of a power over its elections in the hands of the State
legislatures. But the security will not be considered as complete by those who attend to the force of an obvious
distinction between the interest of the people in the public felicity and the interest of their local rulers in the power
and consequence of their offices. The people of America may be warmly attached to the government of the Union, at
times when the particular rulers of particular States, stimulated by the natural rivalship of power, and by the hopes of
personal aggrandizement, and supported by a strong faction in each of those States, may be in a very opposite
temper. This diversity of sentiment between a majority of the people and the individuals who have the greatest credit
in their councils is exemplified in some of the States at the present moment, on the present question. The scheme of
separate confederacies, which will always multiply the chances of ambition, will be a never-failing bait to all such
influential characters in the State administrations as are capable of preferring their own emolument and advancement
to the public weal. With so effectual a weapon in their hands as the exclusive power of regulating elections for the
national government, a combination of a few such men, in a few of the most considerable States, where the
temptation will always be the strongest, might accomplish the destruction of the Union by seizing the opportunity of
some casual dissatisfaction among the people (and which perhaps they may themselves have excited) to discontinue
the choice of members for the federal House of Representatives. It ought never to be forgotten that a firm union of
this country, under an efficient government, will probably be an increasing object of jealousy to more than one
nation of Europe; and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers and
will seldom fail to be patronized and abetted by some of them. Its preservation, therefore, ought in no case that can
be avoided to be committed to the guardianship of any but those whose situation will uniformly beget an immediate
interest in the faithful and vigilant performance of the trust.
PUBLIUS.
Federalist No. 67
Publius (Alexander Hamilton)
March 11, 1788
The Executive Department
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 criticized with less
judgment.
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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 fullgrown 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; and who, upon his false and unfounded
suggestion, has built a series of observations equally false and unfounded. Let him now be confronted with the
evidence of the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the
dictates of truth and to the rules of fair dealing.
The second clause of the second section of the second article empowers the President of the United States "to
nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and
consuls, judges of the Supreme Court, and all other officers of United States whose appointments are not in the
Constitution otherwise provided for, and which shall be established by law." Immediately after this clause follows
another in these words: "The President shall have power to fill up all vacancies that may happen during the recess of
the Senate, by granting commissions which shall expire at the end of their next session." It is from this last provision
that the pretended power of the President to fill vacancies in the Senate has been deduced. A slight attention to the
connection of the clauses and to the obvious meaning of the terms will satisfy us that the deduction is not even
colorable.
The first of these two clauses, it is clear, only provides a mode for appointing such officers "whose appointments are
not otherwise provided for in the Constitution, and which shall be established by law"; of course it cannot extend to
the appointment of senators, whose appointments are otherwise provided for in the Constitution, and who are
established by the Constitution, and will not require a future establishment by law. This position will hardly be
contested.
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The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies
in the Senate, for the following reasons:-First. The relation in which that clause stands to the other, which declares
the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the
other for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was
inadequate. The ordinary power of appointment is confined to the President and Senate jointly, and can therefore
only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be
continually in session for the appointment of officers, and as vacancies might happen in their recess, which it might
be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the
President, singly, to make temporary appointments "during the recess of the Senate, by granting commissions which
shall expire at the end of their next session." Second. If this clause is to be considered as supplementary to the one
which precedes, the vacancies of which it speaks must be construed to relate to the "officers" described in the
preceding one; and this, we have seen, excludes from its description the members of the Senate. Third. The time
within which the power is to operate "during the recess of the Senate," and the duration of the appointments "to the
end of the next session" of that body, conspire to elucidate the sense of the provision which, if it had been intended
to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the
State legislatures, who are to make the permanent appointments, and not to the recess of the national Senate, who
are to have no concern in those appointments; and would have extended the duration in office of the temporary
senators to the next session of the legislature of the State, in whose representation the vacancies had happened,
instead of making it to expire at the end of the ensuing session of the national Senate. The circumstances of the body
authorized to make the permanent appointments would, of course, have governed the modification of a power which
related to the temporary appointments; and as the national Senate is the body whose situation is alone contemplated
in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can
only be deemed to respect those officers in whose appointment that body has a concurrent agency with the President.
But 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.
Federalist No. 68
Publius (Alexander Hamilton)
March 12, 1788
The Mode Of Electing The President
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
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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. 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 desired.
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 pre-established 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 pre-existing 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
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happen to center on 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 Presidents 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.
Federalist No. 72
Publius (Alexander Hamilton)
March 19, 1788
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
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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 forever, and reflected that no exertion of
merit on his part could save him from the unwelcome reverse, 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.
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Would it promote the peace of the community, or the stability of the government, to have half a dozen men who had
had credit enough to be raised to the seat of the supreme magistracy wandering among the people like discontented
ghosts and sighing for a place which they were destined never more to possess?
A third ill effect of the exclusion would be the depriving the community of the advantage of the experience gained
by the Chief Magistrate in the exercise of his office. That experience is the parent of wisdom, is an adage the truth of
which is recognized by the wisest as well as the simplest of mankind. What more desirable or more essential than
this quality in the governors of nations? Where more desirable or more essential than in the first magistrate of a
nation? Can it be wise to put this desirable and essential quality under the ban of the Constitution, and to declare that
the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to
which it is adapted? This, nevertheless, is the precise import of all those regulations which exclude men from
serving their country, by the choice of their fellow-citizens, after they have by a course of service fitted themselves
for doing it with a greater degree of utility.
A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the
State, their presence might be of the greatest moment to the public interest or safety. There is no nation which has
not, at one period or another, experienced an absolute necessity of the services of particular men in particular
situations, perhaps it would not be too strong to say, to the preservation of its political existence. How unwise,
therefore, must be every such self-denying ordinance as serves to prohibit a nation from making use of its own
citizens in the manner best suited to its exigencies and circumstances! Without supposing the personal essentiality of
the man, it is evident that a change of the Chief Magistrate, at the breaking out of a war, or at any similar crisis, for
another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute
inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration.
A fifth ill effect of the exclusion would be that it would operate as a constitutional interdiction of stability in the
administration. By necessitating a change of men, in the first office of the nation, it would necessitate a mutability of
measures. It is not generally to be expected that men will vary and measures remain uniform. The contrary is the
usual course of things. And we need not be apprehensive that there will be too much stability, while there is even the
option of changing; nor need we desire to prohibit the people from continuing their confidence where they think it
may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of
fluctuating councils and a variable policy.
These are some of the disadvantages which would flow from the principle of exclusion. They apply most forcibly to
the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the
readmission of the person a remote and precarious object, the observations which have been made will apply nearly
as fully to one case as to the other.
What are the advantages promised to counterbalance these disadvantages? They are represented to be: 1st, greater
independence in the magistrate; 2nd, greater security to the people. Unless the exclusion be perpetual, there will be
no pretense to infer the first advantage. But even in that case, may he have no object beyond his present station to
which he may sacrifice his independence? May he have no connections, no friends, for whom he may sacrifice it?
May he not be less willing, by a firm conduct, to make personal enemies, when he acts under the impression that a
time is fast approaching, on the arrival of which he not only MAY, but MUST, be exposed to their resentments,
upon an equal, perhaps upon an inferior, footing? It is not an easy point to determine whether his independence
would be most promoted or impaired by such an arrangement.
As to the second supposed advantage, there is still greater reason to entertain doubts concerning it. If the exclusion
were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain
apprehension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his
passion for power and pre-eminence had acquired the force of habit. And if he had been fortunate or adroit enough
to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable
restraint upon themselves a provision which was calculated to debar them of the right of giving a fresh proof of their
attachment to a favorite. There may be conceived circumstances in which this disgust of the people, seconding the
thwarted ambition of such a favorite, might occasion greater danger to liberty than could ever reasonably be dreaded
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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. 78
Publius (Alexander Hamilton)
May 28, 1788
We proceed now to an examination of the judiciary department of the proposed government.
In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been
clearly pointed out. It is the less necessary to recapitulate the considerations there urged as the propriety of the
institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of
constituting it, and to its extent. To these points, therefore, our observations shall be confined.
The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2nd.
The tenure by which they are to hold their places. 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, and the precautions for their responsibility.
According to the plan of the convention, all the 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
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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; 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 legislative and executive. For I agree that "there is no liberty if the power of judging be not separated from the
legislative and executive powers." 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 coordinate 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 the 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 right 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 grounds 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
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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
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 pretence 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 proved 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 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
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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 an
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 tomorrow the victim of a spirit of
injustice, by which he may be a gainer today. 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 weighty 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
characters; 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.
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Federalist No. 84
Publius (Alexander Hamilton)
July 16, 1788
Certain General and Miscellaneous Objections to the Constitution Considered and Answered
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, in reference to the latter, are well
worthy of recital: "To bereave a man of life [says he] or by violence to confiscate his estate, without accusation or
trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout
the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown
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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."
Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be
denominated the cornerstone 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 statute 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 subsequent princes. Such was the Petition of the Right assented to by Charles the
First 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 everything 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
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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. And here, after all, as is intimated
upon another occasion, must we seek for the only solid basis of all our rights.
There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we
have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.
The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its
bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a
bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the
government? This is done in the most ample and precise manner in the plan of the convention; comprehending
various precautions for the public security which are not to be found in any of the State constitutions. Is another
object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and
private concerns? This we have seen has also been attended to in a variety of cases in the same plan. Adverting
therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of
the convention. It may be said that it does not go far enough though it will not be easy to make this appear; but it can
with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as
to the order of declaring the rights of the citizens if they are to be found in any part of the instrument which
establishes the government. And hence it must be apparent that much of what has been said on this subject rests
merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.
Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is
relied on, is of this nature: "It is improper [say the objectors] to confer such large powers as are proposed upon the
national government, because the seat of that government must of necessity be too remote from many of the States
to admit of a proper knowledge on the part of the constituent of the conduct of the representative body." This
argument, if it proves anything, proves that there ought to be no general government whatever. For the powers
which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body
which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality
not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination.
What are the sources of information by which the people in Montgomery County must regulate their judgment of the
conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is
confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they
confide; and how must these men obtain their information? Evidently from the complexion of public measures, from
the public prints, from correspondences with their representatives, and with other persons who reside at the place of
their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable
distance from the seat of government.
It is equally evident that the same sources of information would be open to the people in relation to the conduct of
their representatives in the general government, and the impediments to a prompt communication which distance
may be supposed to create, will be overbalanced by the effects of the vigilance of the State governments. The
executive and legislative bodies of each State will be so many sentinels over the persons employed in every
department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual
system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in
the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise
the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from
the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be
better informed of the conduct of their national representatives than they can be by any means they now possess, of
that of their State representatives.
It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in
all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance,
and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious
project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the
Union.
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Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary
and the least colorable one 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, and is 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 offices
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
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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.
Northwest Ordinance
July 13, 1787
An Ordinance for the government of the territory of the United States northwest of the river Ohio
Section 1. Be it ordained by the United States in Congress assembled, That the said Territory, for the purpose of
temporary government, be one district, subject, however, to be divided into two districts, as future circumstances
may, in the opinion of Congress, make it expedient.
Sec. 2. Be it ordained by the authority aforesaid, That the estates both of resident and non-resident proprietors in the
said territory, dying intestate, shall descend to, and be distributed among, their children and the descendants of a
deceased child in equal parts, the descendants of a deceased child or grandchild to take the share of their deceased
parent in equal parts among them; and where there shall be no children or descendants, then in equal parts to the
next of kin, in equal degree; and among collaterals, the children of a deceased brother or sister of the intestate shall
have, in equal parts among them, their deceased parent’s share; and there shall, in no case, be a distinction between
kindred of the whole and half blood; saving in all cases to the widow of the intestate, her third part of the real estate
for life, and one-third part of the personal estate; and this law relative to descents and dower, shall remain in full
force until altered by the legislature of the district. And until the governor and judges shall adopt laws as hereinafter
mentioned, estates in the said territory may be devised or bequeathed by wills in writing, signed and sealed by him
or her in whom the estate may be, (being of full age,) and attested by three witnesses; and real estates may be
conveyed by lease and release, or bargain and sale, signed, sealed, and delivered by the person, being of full age, in
whom the estate may be, and attested by two witnesses, provided such wills be duly proved, and such conveyances
be acknowledged, or the execution thereof duly proved, and be recorded within one year after proper magistrates,
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courts, and registers, shall be appointed for that purpose; and personal property may be transferred by delivery,
saving, however, to the French and Canadian inhabitants, and other settlers of the Kaskaskies, Saint Vincents, and
the neighboring villages, who have heretofore professed themselves citizens of Virginia, their laws and customs now
in force among them, relative to the descent and conveyance of property.
Sec. 3. Be it ordained by the authority aforesaid, That there shall be appointed, from time to time, by Congress, a
governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress;
he shall reside in the district, and have a freehold estate therein, in one thousand acres of land, while in the exercise
of his office.
Sec. 4. There shall be appointed from time to time, by Congress, a secretary, whose commission shall continue in
force for four years, unless sooner revoked; he shall reside in the district, and have a freehold estate therein, in five
hundred acres of land, while in the exercise of his office. It shall be his duty to keep and preserve the acts and laws
passed by the legislature, and the public records of the district, and the proceedings of the governor in his executive
department, and transmit authentic copies of such acts and proceedings every six months to the Secretary of
Congress. There shall also be appointed a court, to consist of three judges, any two of whom to form a court, who
shall have a common-law jurisdiction and reside in the district, and have each therein a freehold estate, in five
hundred acres of land, while in the exercise of their offices; and their commissions shall continue in force during
good behavior.
Sec. 5. The governor and judges, or a majority of them, shall adopt and publish in the district such laws of the
original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district, and
report them to Congress from time to time, which laws shall be in force in the district until the organization of the
general assembly therein, unless disapproved of by Congress; but afterwards the legislature shall have authority to
alter them as they shall think fit.
Sec. 6. The governor, for the time being, shall be commander-in-chief of the militia, appoint and commission all
officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by
Congress.
Sec. 7. Previous to the organization of the general assembly the governor shall appoint such magistrates, and other
civil officers, in each county or township, as he shall find necessary for the preservation of the peace and good order
in the same. After the general assembly shall be organized the powers and duties of magistrates and other civil
officers shall be regulated and defined by the said assembly; but all magistrates and other civil officers, not herein
otherwise directed, shall, during the continuance of this temporary government, be appointed by the governor.
Sec. 8. For the prevention of crimes, and injuries, the laws to be adopted or made shall have force in all parts of the
district, and for the execution of process, criminal and civil, the governor shall make proper division thereof; and he
shall proceed, from time to time, as circumstances may require, to lay out the parts of the district in which the Indian
titles shall have been extinguished, into counties and townships, subject, however, to such alterations as may
thereafter be made by the legislature.
Sec. 9. So soon as there shall be five thousand free male inhabitants, of full age, in the district, upon giving proof
thereof to the governor, they shall receive authority, with time and place, to elect representatives from their counties
or townships, to represent them in the general assembly: Provided, That for every five hundred free male inhabitants
there shall be one representative, and so on, progressively, with the number of free male inhabitants, shall the right
of representation increase, until the number of representatives shall amount to twenty-five; after which the number
and proportion of representatives shall be regulated by the legislature: Provided, That no person be eligible or
qualified to act as a representative, unless he shall have been a citizen of one of the United States three years, and be
a resident in the district, or unless he shall have resided in the district three years; and, in either case, shall likewise
hold in his own right, in fee-simple, two hundred acres of land within the same: Provided also, That a free-hold in
fifty acres of land in the district, having been a citizen of one of the States, and being resident in the district, or the
like freehold and two years’ residence in the district, shall be necessary to qualify a man as an elector of a
representative.
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Sec. 10. The representatives thus elected shall serve for the term of two years; and in case of the death of a
representative, or removal from office, the governor shall issue a writ to the county or township, for which he was a
member, to elect another in his stead, to serve for the residue of the term.
Sec. 11. The general assembly, or legislature, shall consist of the governor, legislative council, and a house of
representatives. The legislative council shall consist of five members, to continue in office five years, unless sooner
removed by Congress; any three of whom to be a quorum; and the members of the council shall be nominated and
appointed in the following manner, to wit: As soon as representatives shall be elected the governor shall appoint a
time and place for them to meet together, and when met they shall nominate ten persons, resident in the district, and
each possessed of a freehold in five hundred acres of land, and return their names to Congress, five of whom
Congress shall appoint and commission to serve as aforesaid; and whenever a vacancy shall happen in the Council,
by death or removal from office, the house of representatives shall nominate two persons, qualified as aforesaid, for
each vacancy, and return their names to Congress, one of whom Congress shall appoint and commission for the
residue of the term; and every five years, four months at least before the expiration of the time of service of the
members of the council, the said house shall nominate ten persons, qualified as aforesaid, and return their names to
Congress, five of whom Congress shall appoint and commission to serve as members of the council five years,
unless sooner removed. And the governor, legislative council, and house of representatives shall have authority to
make laws in all cases for the good government of the district, not repugnant to the principles and articles in this
ordinance established and declared. And all bills, having passed by a majority in the house, and by a majority in the
council, shall be referred to the governor for his assent; but no bill, or legislative act whatever, shall be of any force
without his assent. The governor shall have power to convene, prorogue, and dissolve the general assembly when, in
his opinion, it shall be expedient.
Sec. 12. The governor, judges, legislative council, secretary, and such other officers as Congress shall appoint in the
district, shall take an oath or affirmation of fidelity, and of office; the governor before the President of Congress, and
all other officers before the governor. As soon as a legislature shall be formed in the district, the council and house
assembled, in one room, shall have authority, by joint ballot, to elect a delegate to Congress, who shall have a seat in
Congress, with a right of debating, but not of voting, during this temporary government.
Sec. 13. And for extending the fundamental principles of civil and religious liberty, which form the basis whereon
these republics, their laws and constitutions, are erected; to fix and establish those principles as the basis of all laws,
constitutions, and governments, which forever hereafter shall be formed in the said territory; to provide, also, for the
establishment of States, and permanent government therein, and for their admission to a share in the Federal
councils on an equal footing with the original States, at as early periods as may be consistent with the general
interest:
Sec. 14. It is hereby ordained and declared, by the authority aforesaid, that the following articles shall be considered
as articles of compact, between the original States and the people and States in the said territory, and forever remain
unalterable, unless by common consent, to wit:
Article I
No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of
worship, or religious sentiments, in the said territory.
Article II
The inhabitants of the said territory shall always be entitled to the benefits of the writs of habeas corpus, and of the
trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according
to the course of the common law. All persons shall be bailable, unless for capital offences, where the proof shall be
evident, or the presumption great. All fines shall be moderate; and no cruel or unusual punishment shall be inflicted.
No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and
should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to
demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights
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and property, it is understood and declared, that no law ought ever to be made or have force in the said territory, that
shall, in any manner whatever, interfere with or affect private contracts, or engagements, bona fide, and without
fraud previously formed.
Article III
Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and
the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the
Indians; their lands and property shall never be taken from them without their consent; and in their property, rights,
and liberty they never shall be invaded or disturbed unless in just and lawful war authorized by Congress; but laws
founded in justice and humanity shall, from time to time, be made, for preventing wrongs being done to them, and
for preserving peace and friendship with them.
Article IV
The said territory, and the States which may be formed therein, shall forever remain a part of this confederacy of the
United States of America, subject to the articles of Confederation, and to such alterations therein as shall be
constitutionally made; and to all the acts and ordinances of the United States in Congress assembled, conformable
thereto. The inhabitants and settlers in the said territory shall be subject to pay a part of the Federal debts,
contracted, or to be contracted, and a proportional part of the expenses of government to be apportioned on them by
Congress, according to the same common rule and measure by which apportionments thereof shall be made on the
other States; and the taxes for paying their proportion shall be laid and levied by the authority and direction of the
legislatures of the district, or districts, or new States, as in the original States, within the time agreed upon by the
United States in Congress assembled. The legislatures of those districts, or new States, shall never interfere with the
primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find
necessary for securing the title in such soil to the bonafide purchasers. No tax shall be imposed on lands the property
of the United States; and in no case shall nonresident proprietors be taxed higher than residents. The navigable
waters leading into the Mississippi and Saint Lawrence, and the carrying places between the same, shall be common
highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and
those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefore.
Article V
There shall be formed in the said territory not less than three nor more than five States; and the boundaries of the
States, as soon as Virginia shall alter her act of cession and consent to the same, shall become fixed and established
as follows, to wit: The western State, in the said territory, shall be bounded by the Mississippi, the Ohio, and the
Wabash Rivers; a direct line drawn from the Wabash and Post Vincents, due north, to the territorial line between the
United States and Canada; and by the said territorial line to the Lake of the Woods and Mississippi. The middle
State shall be bounded by the said direct line, the Wabash from Post Vincents to the Ohio, by the Ohio, by a direct
line drawn due north from the mouth of the Great Miami to the said territorial line, and by the said territorial line.
The eastern State shall be bounded by the last-mentioned direct line, the Ohio, Pennsylvania, and the said territorial
line: Provided, however, And it is further understood and declared, that the boundaries of these three States shall be
subject so far to be altered, that, if Congress shall hereafter find it expedient, they shall have authority to form one or
two States in that part of the said territory which lies north of an east and west line drawn through the southerly bend
or extreme of Lake Michigan. And whenever any of the said States shall have sixty thousand free inhabitants
therein, such State shall be admitted by its delegates, into the Congress of the United States, on an equal footing with
the original States, in all respects whatever; and shall be at liberty to form a permanent constitution and State
government: Provided, The constitution and government, so to be formed, shall be republican, and in conformity to
the principles contained in these articles, and, so far as it can be consistent with the general interest of the
confederacy, such admission shall be allowed at an earlier period, and when there may be a less number of free
inhabitants in the State than sixty thousand.
Article VI
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There shall be neither slavery nor involuntary servitude in the said territory otherwise than in the punishment of
crimes, whereof the party shall have been duly convicted: Provided always, That any person escaping into the same,
from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully
reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid.
Be it ordained by the authority aforesaid, That the resolutions of the 23d of April, 1784, relative to the subject of this
ordinance, be, and the same are hereby, repealed, and declared null and void.
Done by the United States, in Congress assembled, the 13th day of July, in the year of our Lord 1787, and of their
sovereignty and independence the twelfth.
The Judiciary Act of 1789
September 24, 1789.
An Act to establish the Judicial Courts of the United States.
SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress
assembled, That the supreme court of the United States shall consist of a chief justice and five associate justices, any
four of whom shall be a quorum, and shall hold annually at the seat of government two sessions, the one
commencing the first Monday of February, and the other the first Monday of August. That the associate justices
shall have precedence according to the date of their commissions, or when the commissions of two or more of them
bear date on the same day, according to their respective ages.
SEC. 2. And be it further enacted, That the United States shall be, and they hereby are divided into thirteen districts,
to be limited and called as follows, to wit: one to consist of that part of the State of Massachusetts which lies easterly
of the State of New Hampshire, and to be called Maine District; one to consist of the State of New Hampshire, and
to be called New Hampshire District; one to consist of the remaining part of the State of Massachusetts, and to be
called Massachusetts district; one to consist of the State of Connecticut, and to be called Connecticut District; one to
consist of the State of New York, and to be called New York District; one to consist of the State of New Jersey, and
to be called New Jersey District; one to consist of the State of Pennsylvania, and to be called Pennsylvania District;
one to consist of the State of Delaware, and to be called Delaware District; one to consist of the State of Maryland,
and to be called Maryland District; one to consist of the State of Virginia, except that part called the District of
Kentucky, and to be called Virginia District; one to consist of the remaining part of the State of Virginia, and to be
called Kentucky District; one to consist of the State of South Carolina, and to be called South Carolina District; and
one to consist of the State of Georgia, and to be called Georgia District.
SEC. 3. And be it further enacted, That there be a court called a District Court, in each of the afore mentioned
districts, to consist of one judge, who shall reside in the district for which he is appointed, and shall be called a
District Judge, and shall hold annually four sessions, the first of which to commence as follows, to wit: in the
districts of New York and of New Jersey on the first, in the district of Pennsylvania on the second, in the district of
Connecticut on the third, and in the district of Delaware on the fourth, Tuesdays of November next; in the districts
of Massachusetts, of Maine, and of Maryland, on the first, in the district of Georgia on the second, and in the
districts of New Hampshire, of Virginia, and of Kentucky, on the third Tuesdays of December next; and the other
three sessions progressively in the respective districts on the like Tuesdays of every third calendar month afterwards,
and in the district of South Carolina, on the third Monday in March and September, the first Monday in July, and the
second Monday in December of each and every year, commencing in December next; and that the District Judge
shall have power to hold special courts at his discretion. That the stated District Court shall be held at the places
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following, to wit: in the district of Maine, at Portland and Pownalsborough alternately, beginning at the first; in the
district of New Hampshire, at Exeter and Portsmouth alternately, beginning at the first; in the district of
Massachusetts, at Boston and Salem alternately, beginning at the first; in the district of Connecticut, alternately at
Hartford and New Haven, beginning at the first; in the district of New York, at New York; in the district of New
Jersey, alternately at New Brunswick and Burlington, beginning at the first; in the district of Pennsylvania, at
Philadelphia and York Town alternately, beginning at the first; in the district of Delaware, alternately at Newcastle
and Dover, beginning at the first; in the district of Maryland, alternately at Baltimore and Easton, beginning at the
first; in the district of Virginia, alternately at Richmond and Williamsburgh, beginning at the first; in the district of
Kentucky, at Harrodsburgh; in the district of South Carolina, at Charleston; and in the district of Georgia, alternately
at Savannah and Augusta, beginning at the first; and that the special courts shall be held at the same place in each
district as the stated courts, or in districts that have two, at either of them, in the discretion of the judge, or at such
other place in the district, as the nature of the business and his discretion shall direct. And that in the districts that
have but one place for holding the District Court, the records thereof shall be kept at that place; and in districts that
have two, at that place in each district which the judge shall appoint.
SEC. 4. And be it further enacted, That the before mentioned districts, except those of Maine and Kentucky, shall be
divided into three circuits, and be called the eastern, the middle, and the southern circuit. That the eastern circuit
shall consist of the districts of New Hampshire, Massachusetts, Connecticut and New York; that the middle circuit
shall consist of the districts of New Jersey, Pennsylvania, Delaware, Maryland and Virginia; and that the southern
circuit shall consist of the districts of South Carolina and Georgia, and that there shall be held annually in each
district of said circuits, two courts, which shall be called Circuit Courts, and shall consist of any two justices of the
Supreme Court, and the district judge of such districts, any two of whom shall constitute a quorum: Provided, That
no district judge shall give a vote in any case of appeal or error from his own decision; but may assign the reasons of
such his decision.
SEC. 5. And be it further enacted, That the first session of the said circuit court in the several districts shall
commence at the times following, to wit: in New Jersey on the second, in New York on the fourth, in Pennsylvania
on the eleventh, in Connecticut on the twenty-second, and in Delaware on the twenty-seventh, days of April next; in
Massachusetts on the third, in Maryland on the seventh, in South Carolina on the twelfth, in New Hampshire on the
twentieth, in Virginia on the twenty-second, and in Georgia on the twenty-eighth, days of May next, and the
subsequent sessions in the respective districts on the like days of every sixth calendar month afterwards, except in
South Carolina, where the session of the said court shall commence on the first, and in Georgia where it shall
commence on the seventeenth day of October, and except when any of those days shall happen on a Sunday, and
then the session shall commence on the next day following. And the sessions of the said circuit court shall be held in
the district of New Hampshire, at Portsmouth and Exeter alternately, beginning at the first; in the district of
Massachusetts, at Boston; in the district of Connecticut, alternately at Hartford and New Haven, beginning at the
last; in the district of New York, alternately at New York and Albany, beginning at the first; in the district of New
Jersey, at Trenton; in the district of Pennsylvania, alternately at Philadelphia and Yorktown, beginning at the first; in
the district of Delaware, alternately at New Castle and Dover, beginning at the first; in the district of Maryland,
alternately at Annapolis and Easton, beginning at the first; in the district of Virginia, alternately at Charlottesville
and Williamsburgh, beginning at the first; in the district of South Carolina, alternately at Columbia and Charleston,
beginning at the first; and in the district of Georgia, alternately at Savannah and Augusta, beginning at the first. And
the circuit courts shall have power to hold special sessions for the trial of criminal causes at any other time at their
discretion, or at the discretion of the Supreme Court.
SEC. 6. And be it further enacted, That the Supreme Court may, by any one or more of its justices being present, be
adjourned from day to day until a quorum be convened; and that a circuit court may also be adjourned from day to
day by any one of its judges, or if none are present, by the marshal of the district until a quorum be convened; and
that a district court, in case of the inability of the judge to attend at the commencement of a session, may by virtue of
a written order from the said judge, directed to the marshal of the district, be adjourned by the said marshal to such
day, antecedent to the next stated session of the said court, as in the said order shall be appointed; and in case of the
death of the said judge, and his vacancy not being supplied, all process, pleadings and proceedings of what nature
soever, pending before the said court, shall be continued of course until the next stated session after the appointment
and acceptance of the office by his successor.
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SEC. 7. And be it [further] enacted, That the Supreme Court, and the district courts shall have power to appoint
clerks for their respective courts, and that the clerk for each district court shall be clerk also of the circuit court in
such district, and each of the said clerks shall, before he enters upon the execution of his office, take the following
oath or affirmation, to wit: "I, A. B., being appointed clerk of , do solemnly swear, or affirm, that I will truly and
faithfully enter and record all the orders, decrees, judgments and proceedings of the said court, and that I will
faithfully and impartially discharge and perform all the duties of my said office, according to the best of my abilities
and understanding. So help me God." Which words, so help me God, shall be omitted in all cases where an
affirmation is admitted instead of an oath. And the said clerks shall also severally give bond, with sufficient sureties,
(to be approved of by the Supreme and district courts respectively) to the United States, in the sum of two thousand
dollars, faithfully to discharge the duties of his office, and seasonably to record the decrees, judgments and
determinations of the court of which he is clerk.
SEC. 8. And be it further enacted, That the justices of the Supreme Court, and the district judges, before they
proceed to execute the duties of their respective offices, shall take the following oath or affirmation, to wit: "I, A. B.,
do solemnly swear or affirm, that I will administer justice without respect to persons, and do equal right to the poor
and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as ,
according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States.
So help me God."
SEC. 9. And be it further enacted, That the district courts shall have, exclusively of the courts of the several States,
cognizance of all crimes and offences that shall be cognizable under the authority of the United States, committed
within their respective districts, or upon the high seas; where no other punishment than whipping, not exceeding
thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be
inflicted; and shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction,
including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on
waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as
well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law
is competent to give it; and shall also have exclusive original cognizance of all seizures on land, or other waters than
as aforesaid, made, and of all suits for penalties and forfeitures incurred, under the laws of the United States. And
shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be,
of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. And
shall also have cognizance, concurrent as last mentioned, of all suits at common law where the United States sue,
and the matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars. And shall also
have jurisdiction exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except
for offences above the description aforesaid. And the trial of issues in fact, in the district courts, in all causes except
civil causes of admiralty and maritime jurisdiction, shall be by jury.
SEC. 10. And be it further enacted, That the district court in Kentucky district shall, besides the jurisdiction
aforesaid, have jurisdiction of all other causes, except of appeals and writs of error, hereinafter made cognizable in a
circuit court, and shall proceed therein in the same manner as a circuit court, and writs of error and appeals shall lie
from decisions therein to the Supreme Court in the same causes, as from a circuit court to the Supreme Court, and
under the same regulations. And the district court in Maine district shall, besides the jurisdiction herein before
granted, have jurisdiction of all causes, except of appeals and writs of error herein after made cognizable in a circuit
court, and shall proceed therein in the same manner as a circuit court: And writs of error shall lie from decisions
therein to the circuit court in the district of Massachusetts in the same manner as from other district courts to their
respective circuit courts.
SEC. 11. And be it further enacted, That the circuit courts shall have original cognizance, concurrent with the courts
of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds,
exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs, or petitioners; or an
alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State.
And shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States,
except where this act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent
jurisdiction with the district courts of the crimes and offences cognizable therein. But no person shall be arrested in
one district for trial in another, in any civil action before a circuit or district court. And no civil suit shall be brought
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before either of said courts against an inhabitant of the United States, by any original process in any other district
than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ, nor shall any
district or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in
action in favour of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if
no assignment had been made, except in cases of foreign bills of exchange. And the circuit courts shall also have
appellate jurisdiction from the district courts under the regulations and restrictions herein after provided.
SEC. 12. And be it further enacted, That if a suit be commenced in any state court against an alien, or by a citizen of
the state in which the suit is brought against a citizen of another state, and the matter in dispute exceeds the aforesaid
sum or value of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court; and the
defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause
for trial into the next circuit court, to be held in the district where the suit is pending, or if in the district of Maine to
the district court next to be holden therein, or if in Kentucky district to the district court next to be holden therein,
and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of said
process against him, and also for his there appearing and entering special bail in the cause, if special bail was
originally requisite therein, it shall then be the duty of the state court to accept the surety, and proceed no further in
the cause, and any bail that may have been originally taken shall be discharged, and the said copies being entered as
aforesaid, in such court of the United States, the cause shall there proceed in the same manner as if it had been
brought there by original process. And any attachment of the goods or estate of the defendant by the original
process, shall hold the goods or estate so attached, to answer the final judgment in the same manner as by the laws
of such state they would have been holden to answer final judgment, had it been rendered by the court in which the
suit commenced. And if in any action commenced in a state court, the title of land be concerned, and the parties are
citizens of the same state, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of
costs, the sum or value being made to appear to the satisfaction of the court, either party, before the trial, shall state
to the court and make affidavit if they require it, that he claims and shall rely upon a right or title to the land, under a
grant from a state other than that in which the suit is pending, and produce the original grant or an exemplification of
it, except where the loss of public records shall put it out of his power, and shall move that the adverse party inform
the court, whether he claims a right or title to the land under a grant from the state in which the suit is pending; the
said adverse [party] shall give such information, or otherwise not be allowed to plead such grant, or give it in
evidence upon the trial, and if he informs that he does claim under such grant, the party claiming under the grant
first mentioned may then, on motion, remove the cause for trial to the next circuit court to be holden in such district,
or if in the district of Maine, to the court next to be holden therein; or if in Kentucky district, to the district court
next to be holden therein; but if he is the defendant, shall do it under the same regulations as in the before-mentioned
case of the removal of a cause into such court by an alien; and neither party removing the cause, shall be allowed to
plead or give evidence of any other title than that by him stated as aforesaid, as the ground of his claim; and the trial
of issues in fact in the circuit courts shall, in all suits, except those of equity, and of admiralty, and maritime
jurisdiction, be by jury.
SEC. 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a
civil nature, where a state is a party, except between a state and its citizens; and except also between a state and
citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall
have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their
domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and
original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a
consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law
against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from
the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have
power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime
jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed,
or persons holding office, under the authority of the United States.
SEC. 14. And be it further enacted, That all the before-mentioned courts of the United States, shall have power to
issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be
necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And
that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs
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of habeas corpus for the purpose of an inquiry into the cause of commitment.——Provided, That writs of habeas
corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the
authority of the United States, or are committed for trial before some court of the same, or are necessary to be
brought into court to testify.
SEC. 15. And be it further enacted, That all the said courts of the United States, shall have power in the trial of
actions at law, on motion and due notice thereof being given, to require the parties to produce books or writings in
their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where
they might be compelled to produce the same by the ordinary rules of proceeding in chancery; and if a plaintiff shall
fail to comply with such order, to produce books or writings, it shall be lawful for the courts respectively, on motion,
to give the like judgment for the defendant as in cases of nonsuit; and if a defendant shall fail to comply with such
order, to produce books or writings, it shall be lawful for the courts respectively on motion as aforesaid, to give
judgment against him or her by default.
SEC. 16. And be it further enacted, That suits in equity shall not be sustained in either of the courts of the United
States, in any case where plain, adequate and complete remedy may be had at law.
SEC. 17. And be it further enacted, That all the said courts of the United States shall have power to grant new trials,
in cases where there has been a trial by jury for reasons for which new trials have usually been granted in the courts
of law; and shall have power to impose and administer all necessary oaths or affirmations, and to punish by fine or
imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same;
and to make and establish all necessary rules for the orderly conducting business in the said courts, provided such
rules are not repugnant to the laws of the United States.
SEC. 18. And be it further enacted, That when in a circuit court, judgment upon a verdict in a civil action shall be
entered, execution may on motion of either party, at the discretion of the court, and on such conditions for the
security of the adverse party as they may judge proper, be stayed forty-two days from the time of entering judgment,
to give time to file in the clerk’s office of said court, a petition for a new trial. And if such petition be there filed
within said term of forty-two days, with a certificate thereon from either of the judges of such court, that he allows
the same to be filed, which certificate he may make or refuse at his discretion, execution shall of course be further
stayed to the next session of said court. And if a new trial be granted, the former judgment shall be thereby rendered
void.
SEC. 19. And be it further enacted, That it shall be the duty of circuit courts, in causes in equity and of admiralty
and maritime jurisdiction, to cause the facts on which they found their sentence or decree, fully to appear upon the
record either from the pleadings and decree itself, or a state of the case agreed by the parties, or their counsel, or if
they disagree by a stating of the case by the court.
SEC. 20. And be it further enacted, That where in a circuit court, a plaintiff in an action, originally brought there, or
a petitioner in equity, other than the United States, recovers less than the sum or value of five hundred dollars, or a
libellant, upon his own appeal, less than the sum or value of three hundred dollars, he shall not be allowed, but at the
discretion of the court, may be adjudged to pay costs.
SEC. 21. And be it further enacted, That from final decrees in a district court in causes of admiralty and maritime
jurisdiction, where the matter in dispute exceeds the sum or value of three hundred dollars, exclusive of costs, an
appeal shall be allowed to the next circuit court, to be held in such district. Provided nevertheless, That all such
appeals from final decrees as aforesaid, from the district court of Maine, shall be made to the circuit court, next to be
holden after each appeal in the district of Massachusetts.
SEC. 22. And be it further enacted, That final decrees and judgments in civil actions in a district court, where the
matter in dispute exceeds the sum or value of fifty dollars, exclusive of costs, may be reexamined, and reversed or
affirmed in a circuit court, holden in the same district, upon a writ of error, whereto shall be annexed and returned
therewith at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors,
and prayer for reversal, with a citation to the adverse party, signed by the judge of such district court, or a justice of
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the Supreme Court, the adverse party having at least twenty days’ notice. And upon a like process, may final
judgments and decrees in civil actions, and suits in equity in a circuit court, brought there by original process, or
removed there from courts of the several States, or removed there by appeal from a district court where the matter in
dispute exceeds the sum or value of two thousand dollars, exclusive of costs, be re-examined and reversed or
affirmed in the Supreme Court, the citation being in such case signed by a judge of such circuit court, or justice of
the Supreme Court, and the adverse party having at least thirty days’ notice. But there shall be no reversal in either
court on such writ of error for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court,
or such plea to a petition or bill in equity, as is in the nature of a demurrer, or for any error in fact. And writs of error
shall not be brought but within five years after rendering or passing the judgment or decree complained of, or in case
the person entitled to such writ of error be an infant, feme covert, non compos mentis, or imprisoned, then within
five years as aforesaid, exclusive of the time of such disability. And every justice or judge signing a citation on any
writ of error as aforesaid, shall take good and sufficient security, that the plaintiff in error shall prosecute his writ to
effect, and answer all damages and costs if he fail to make his plea good.
SEC. 23. And be it further enacted, That a writ of error as aforesaid shall be a supersedeas and stay execution in
cases only where the writ of error is served, by a copy thereof being lodged for the adverse party in the clerk’s office
where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree
complained of. Until the expiration of which term of ten days, executions shall not issue in any case where a writ of
error may be a supersedeas; and whereupon such writ of error the Supreme or a circuit court shall affirm a judgment
or decree, they shall adjudge or decree to the respondent in error just damages for his delay, and single or double
costs at their discretion.
SEC. 24. And be it further enacted, That when a judgment or decree shall be reversed in a circuit court, such court
shall proceed to render such judgment or pass such decree as the district court should have rendered or passed; and
the Supreme Court shall do the same on reversals therein, except where the reversal is in favour of the plaintiff, or
petitioner in the original suit, and the damages to be assessed, or matter to be decreed, are uncertain, in which case
they shall remand the cause for a final decision. And the Supreme Court shall not issue execution in causes that are
removed before them by writs of error, but shall send a special mandate to the circuit court to award execution
thereupon.
SEC. 25. And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity
of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute
of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in
question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant
to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where
is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission
held under the United States, and the decision is against the title, right, privilege or exemption specially set up or
claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be reexamined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being
signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree
complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same
regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or
passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court,
instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have
been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be
assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the
record, and immediately respects the before mentioned questions of validity or construction of the said constitution,
treaties, statutes, commissions, or authorities in dispute.
SEC. 26. And be it further enacted, That in all causes brought before either of the courts of the United States to
recover the forfeiture annexed to any articles of agreement, covenant, bond, or other speciality, where the forfeiture,
breach or non-performance shall appear, by the default or confession of the defendant, or upon demurrer, the court
before whom the action is, shall render judgment therein for the plaintiff to recover so much as is due according to
equity. And when the sum for which judgment should be rendered is uncertain, the same shall, if either of the parties
request it, be assessed by a jury.
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SEC. 27. And be it further enacted, That a marshal shall be appointed in and for each district for the term of four
years, but shall be removable from office at pleasure, whose duty it shall be to attend the district and circuit courts
when sitting therein, and also the Supreme Court in the District in which that court shall sit. And to execute
throughout the district, all lawful precepts directed to him, and issued under the authority of the United States, and
he shall have power to command all necessary assistance in the execution of his duty, and to appoint as there shall
be occasion, one or more deputies, who shall be removable from office by the judge of the district court, or the
circuit court sitting within the district, at the pleasure of either; and before he enters on the duties of his office, he
shall become bound for the faithful performance of the same, by himself and by his deputies before the judge of the
district court to the United States, jointly and severally, with two good and sufficient sureties, inhabitants and
freeholders of such district, to be approved by the district judge, in the sum of twenty thousand dollars, and shall
take before said judge, as shall also his deputies, before they enter on the duties of their appointment, the following
oath of office: "I, A. B., do solemnly swear or affirm, that I will faithfully execute all lawful precepts directed to the
marshal of the district of ____________ under the authority of the United States, and true returns make, and in all
things well and truly, and without malice or partiality, perform the duties of the office of marshal (or marshal’s
deputy, as the case may be) of the district of , during my continuance in said office, and take only my lawful fees. So
help me God."
SEC. 28. And be it further enacted, That in all causes wherein the marshal or his deputy shall be a party, the writs
and precepts therein shall be directed to such disinterested person as the court, or any justice or judge thereof may
appoint, and the person so appointed, is hereby authorized to execute and return the same. And in case of the death
of any marshal, his deputy or deputies shall continue in office, unless otherwise specially removed; and shall execute
the same in the name of the deceased, until another marshal shall be appointed and sworn: And the defaults or
misfeasances in office of such deputy or deputies in the mean time, as well as before, shall be adjudged a breach of
the condition of the bond given, as before directed, by the marshal who appointed them; and the executor or
administrator of the deceased marshal shall have like remedy for the defaults and misfeasances in office of such
deputy or deputies during such interval, as they would be entitled to if the marshal had continued in life and in the
exercise of his said office, until his successor was appointed, and sworn or affirmed: And every marshal or his
deputy when removed from office, or when the term for which the marshal is appointed shall expire, shall have
power notwithstanding to execute all such precepts as may be in their hands respectively at the time of such removal
or expiration of office; and the marshal shall be held answerable for the delivery to his successor of all prisoners
which may be in his custody at the time of his removal, or when the term for which he is appointed shall expire, and
for that purpose may retain such prisoners in his custody until his successor shall be appointed and qualified as the
law directs.
SEC. 29. And be it further enacted, That in cases punishable with death, the trial shall be had in the county where
the offence was committed, or where that cannot be done without great inconvenience, twelve petit jurors at least
shall be summoned from thence. And jurors in all cases to serve in the courts of the United States shall be
designated by lot or otherwise in each State respectively according to the mode of forming juries therein now
practised, so far as the laws of the same shall render such designation practicable by the courts or marshals of the
United States; and the jurors shall have the same qualifications as are requisite for jurors by the laws of the State of
which they are citizens, to serve in the highest courts of law of such State, and shall be returned as there shall be
occasion for them, from such parts of the district from time to time as the court shall direct, so as shall be most
favourable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burthen the citizens of
any part of the district with such services. And writs of venire facias when directed by the court shall issue from the
clerk’s office, and shall be served and returned by the marshal in his proper person, or by his deputy, or in case the
marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as the
court shall specially appoint for that purpose, to whom they shall administer an oath or affirmation that he will truly
and impartially serve and return such writ. And when from challenges or otherwise there shall not be a jury to
determine any civil or criminal cause, the marshal or his deputy shall, by order of the court where such defect of
jurors shall happen, return jurymen de talibus circumstantibus sufficient to complete the pannel; and when the
marshal or his deputy are disqualified as aforesaid, jurors may be returned by such disinterested person as the court
shall appoint.
SEC. 30. And be it further enacted, That the mode of proof by oral testimony and examination of witnesses in open
court shall be the same in all the courts of the United States, as well in the trial of causes in equity and of admiralty
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and maritime jurisdiction, as of actions at common law. And when the testimony of any person shall be necessary in
any civil cause depending in any district in any court of the United States, who shall live at a greater distance from
the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or
out of such district, and to a greater distance from the place of trial than as aforesaid, before the time of trial, or is
ancient or very infirm, the deposition of such person may be taken de bene esse before any justice or judge of any of
the courts of the United States, or before any chancellor, justice or judge of a supreme or superior court, mayor or
chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, not being
of counsel or attorney to either of the parties, or interested in the event of the cause, provided that a notification from
the magistrate before whom the deposition is to be taken to the adverse party, to be present at the taking of the same,
and to put interrogatories, if he think fit, be first made out and served on the adverse party or his attorney as either
may be nearest, if either is within one hundred miles of the place of such caption, allowing time for their attendance
after notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles travel. And in causes of
admiralty and maritime jurisdiction, or other cases of seizure when a libel shall be filed, in which an adverse party is
not named, and depositions of persons circumstanced as aforesaid shall be taken before a claim be put in, the like
notification as aforesaid shall be given to the person having the agency or possession of the property libelled at the
time of the capture or seizure of the same, if known to the libellant. And every person deposing as aforesaid shall be
carefully examined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony
by him or her given after the same shall be reduced to writing, which shall be done only by the magistrate taking the
deposition, or by the deponent in his presence. And the depositions so taken shall be retained by such magistrate
until he deliver the same with his own hand into the court for which they are taken, or shall , together with a
certificate of the reasons as aforesaid of their being taken, and of the notice if any given to the adverse party, be by
him the said magistrate sealed up and directed to such court, and remain under his seal until opened in court. And
any person may be compelled to appear and depose as aforesaid in the same manner as to appear and testify in court.
And in the trial of any cause of admiralty or maritime jurisdiction in a district court, the decree in which may be
appealed from, if either party shall suggest to and satisfy the court that probably it will not be in his power to
produce the witnesses there testifying before the circuit court should an appeal be had, and shall move that their
testimony be taken down in writing, it shall be so done by the clerk of the court. And if an appeal be had, such
testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court which shall try the
appeal, that the witnesses are then dead or gone out of the United States, or to a greater distance than as aforesaid
from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity or imprisonment, they
are unable to travel and appear at court, but not otherwise. And unless the same shall be made to appear on the trial
of any cause, with respect to witnesses whose depositions may have been taken therein, such depositions shall not be
admitted or used in the cause. Provided, That nothing herein shall be construed to prevent any court of the United
States from granting a dedimus potestatem to take depositions according to common usage, when it may be
necessary to prevent a failure or delay of justice, which power they shall severally possess, nor to extend to
depositions taken in perpetuam rei memoriam, which if they relate to matters that may be cognizable in any court of
the United States, a circuit court on application thereto made as a court of equity, may, according to the usages in
chancery direct to be taken.
SEC. 31. And be it [further] enacted, That where any suit shall be depending in any court of the United States, and
either of the parties shall die before final judgment, the executor or administrator of such deceased party who was
plaintiff, petitioner, or defendant, in case the cause of action doth by law survive, shall have full power to prosecute
or defend any such suit or action until final judgment; and the defendant or defendants are hereby obliged to answer
thereto accordingly; and the court before whom such cause may be depending, is hereby empowered and directed to
hear and determine the same, and to render judgment for or against the executor or administrator, as the case may
require. And if such executor or administrator having been duly served with a scire facias from the office of the
clerk of the court where such suit is depending, twenty days beforehand, shall neglect or refuse to become a party to
the suit, the court may render judgment against the estate of the deceased party, in the same manner as if the
executor or administrator had voluntarily made himself a party to the suit. And the executor or administrator who
shall become a party as aforesaid, shall, upon motion to the court where the suit is depending, be entitled to a
continuance of the same until the next term of the said court. And if there be two or more plaintiffs or defendants,
and one or more of them shall die, if the cause of action shall survive to the surviving plaintiff or plaintiffs, or
against the surviving defendant or defendants, the writ or action shall not be thereby abated; but such death being
suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the
surviving defendant or defendants.
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SEC. 32. And be it further enacted, That no summons, writ, declaration, return, process, judgment, or other
proceedings in civil causes in any of the courts of the United States, shall be abated, arrested, quashed or reversed,
for any defect or want of form, but the said courts respectively shall proceed and give judgment according as the
right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects, or want of
form in such writ, declaration, or other pleading, return, process, judgment, or course of proceeding whatsoever,
except those only in cases of demurrer, which the party demurring shall specially sit down and express together with
his demurrer as the cause thereof. And the said courts respectively shall and may, by virtue of this act, from time to
time, amend all and every such imperfections, defects and wants of form, other than those only which the party
demurring shall express as aforesaid, and may at any time permit either of the parties to amend any defect in the
process or pleadings, upon such conditions as the said courts respectively shall in their discretion, and by their rules
prescribe.
SEC. 33. And be it further enacted, That for any crime or offence against the United States, the offender may, by
any justice or judge of the United States, or by any justice of the peace, or other magistrate of any of the United
States where he may be found agreeably to the usual mode of process against offenders in such state, and at the
expense of the United States, be arrested, and imprisoned or bailed, as the case may be, for trial before such court of
the United States as by this act has cognizance of the offence. And copies of the process shall be returned as
speedily as may be into the clerk’s office of such court, together with the recognizances of the witnesses for their
appearance to testify in the case; which recognizances the magistrate before whom the examination shall be, may
require on pain of imprisonment. And if such commitment of the offender, or the witnesses shall be in a district
other than that in which the offence is to be tried, it shall be the duty of the judge of that district where the
delinquent is imprisoned, seasonably to issue, and of the marshal of the same district to execute, a warrant for the
removal of the offender, and the witnesses, or either of them, as the case may be, to the district in which the trial is
to be had. And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death,
in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a
judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the
offence, and of the evidence, and the usages of law. And if a person committed by a justice of the supreme or a
judge of a district court for an offence not punishable with death, shall afterwards procure bail, and there be no judge
of the United States in the district to take the same, it may be taken by any judge of the supreme or superior court of
law of such state.
SEC. 34. And be it further enacted, That the laws of the several states, except where the constitution, treaties or
statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at
common law in the courts of the United States in cases where they apply.
SEC. 35. And be it further enacted, That in all courts of the United States, the parties may plead and manage their
own causes personally or by assistance of such counsel or attorneys at law as by the rules of the said courts
respectively shall be permitted to manage and conduct causes therein. And there shall be appointed in each district a
meet person learned in the law to act as attorney for the United States in such district, who shall be sworn or
affirmed to the faithful execution of his office, whose duty it shall be to prosecute in such district all delinquents for
crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United
States shall be concerned, except before the supreme court in the district in which that court shall be holden. And he
shall receive as compensation for his services such fees as shall be taxed therefor in the respective courts before
which the suits or prosecutions shall be. And there shall also be appointed a meet person, learned in the law, to act as
attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office; whose
duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be
concerned, and to give his advice and opinion upon questions of law when required by the President of the United
States, or when requested by the heads of any of the departments, touching any matters that may concern their
departments, and shall receive such compensation for his services as shall by law be provided.
APPROVED , September 24, 1789.
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