Anti Federalist and Federlist papers Study Guide

Transcription

Federalist vs. Anti-Federalist
Study Guide
Produced in cooperation with Monticello College
and Dr. Shannon Brooks
Version 20111224
The Federalist Papers have been studied by
many. In this edition it has been organized by
subject then by publication date. While some
publication dates are not fully available to the
day the months have been determined and each
paper without an exact date were considered for
content and placed appropriately. I have taken
to viewing these as a conversation more than a
liner progression of documents. The AntiFederalist papers were taken from the The
Edited
with
an
Antifederalist
Papers;
Introduction by Morton Borden; Michigan State
University Press, 1965. This authors writings have
been removed, so as to keep the information
strictly public domain.
TABLE OF CONTENTS
General Topics .................................................................................................................................................................................... 5
FED1: General Introduction ................................................................................................................................................................... 5
AFED5: Scotland And England - A Case In Point ..................................................................................................................................... 8
FED2: Concerning Dangers from Foreign Force and Influence ............................................................................................................ 10
FED3: The Same Subject Continued (Concerning Dangers From Foreign Force and Influence) .......................................................... 13
AFED1: General Introduction: A dangerous plan of benefit only to the "Aristocratick Combination" ................................................ 22
AFED3: New Constitution Creates A National Government; Will Not Abate Foreign Influence; Dangers Of Civil War And Despotism
............................................................................................................................................................................................................. 24
AFED4: Foreign Wars, Civil Wars, And Indian Wars - Three Bugbears ................................................................................................. 26
AFED2: "We have been told of phantoms" .......................................................................................................................................... 29
Conflicts Between the States ............................................................................................................................................................ 32
AFED9: A Consolidated Government Is A Tyranny ............................................................................................................................... 32
FED6: Concerning Dangers from Dissensions Between the States ...................................................................................................... 35
FED7: The Same Subject Continued (Concerning Dangers from Dissensions Between the States)..................................................... 39
FED8: The Consequences of Hostilities Between the States................................................................................................................ 43
FED9: The Union as a Safeguard Against Domestic Faction and Insurrection ..................................................................................... 46
FED10: The Same Subject Continued (The Union as a Safeguard Against Domestic Faction and Insurrection) .................................. 49
AFED6: The Hobgoblins Of Anarchy And Dissensions Among The States ............................................................................................ 53
AFED7: Adoption Of The Constitution Will Lead To Civil War.............................................................................................................. 55
AFED8: "The Power Vested In Congress Of Sending Troops For Suppressing Insurrections Will Always Enable Them To Stifle The
First Struggles Of Freedom" ................................................................................................................................................................. 57
AFED10: On The Preservation Of Parties, Public Liberty Depends ...................................................................................................... 59
Costs of the New Government.......................................................................................................................................................... 62
AFED13: The Expense Of The New Government ................................................................................................................................. 62
FED11: The Utility of the Union in Respect to Commercial Relations and a Navy ............................................................................... 64
FED12: The Utility of the Union In Respect to Revenue....................................................................................................................... 68
FED13: Advantage of the Union in Respect to Economy in Government ............................................................................................ 71
AFED12: How Will The New Government Raise Money? .................................................................................................................... 73
AFED11: Unrestricted Power Over Commerce Should Not Be Given The National Government ....................................................... 76
State Sovereignty – preservation of the Union ................................................................................................................................. 79
AFED17: Federalist Power Will Ultimately Subvert State Authority .................................................................................................... 79
AFED14: Extent Of Territory Under Consolidated Government Too Large To Preserve Liberty Or Protect Property ......................... 82
AFED18-20: What Does History Teach? (Part I) ................................................................................................................................... 85
FED14: Objections to the Proposed Constitution From Extent of Territory Answered ....................................................................... 87
FED15: The Insufficiency of the Present Confederation to Preserve the Union .................................................................................. 90
FED16: The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) ................................ 95
FED17: The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) ................................ 98
AFED15: Rhode Island Is Right! .......................................................................................................................................................... 101
FED18: The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) .............................. 102
AFED16: Europeans Admire And Federalists Decry The Present System .......................................................................................... 113
AFED18-20: What Does History Teach? (Part II) ................................................................................................................................ 115
Defects in the Articles of Confederation ......................................................................................................................................... 118
AFED21: Why The Articles Failed ....................................................................................................................................................... 118
FED21: Other Defects of the Present Confederation ......................................................................................................................... 121
FED22: The Same Subject Continued (Other Defects of the Present Confederation) ....................................................................... 124
FED23: The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union ................................. 129
AFED22: Articles Of Confederation Simply Requires Amendments, Particularly For Commercial Power And Judicial Power;
Constitution Goes Too Far ................................................................................................................................................................. 132
AFED23: Certain Powers Necessary For The Common Defense, Can And Should Be Limited ........................................................... 135
Common Defense, Milita, and Standing Armies ............................................................................................................................. 139
AFED27: The Use Of Coercion By The New Government (Part II) ...................................................................................................... 139
AFED29: Objections To National Control Of The Militia .................................................................................................................... 141
FED24: The Powers Necessary to the Common Defense Further Considered ................................................................................... 143
FED25: The Same Subject Continued (The Powers Necessary to the Common Defense Further Considered) ................................. 146
FED26: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered. ..................................... 149
FED27: The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense
Considered) ........................................................................................................................................................................................ 153
FED28: The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense
Considered) ........................................................................................................................................................................................ 155
FED29: Concerning the Militia ........................................................................................................................................................... 158
AFED28: The Use Of Coercion By The New Government (Part III) ..................................................................................................... 162
AFED24: Objections To A Standing Army (Part I) ............................................................................................................................... 165
AFED25: Objections To A Standing Army (Part II) .............................................................................................................................. 168
AFED26: The Use Of Coercion By The New Government (Part I) ....................................................................................................... 172
Taxation .......................................................................................................................................................................................... 174
AFED36: Representation And Internal Taxation ................................................................................................................................ 174
AFED30-31: A Virginia Antifederalist On The Issue Of Taxation ........................................................................................................ 176
AFED32: Federal Taxation And The Doctrine Of Implied Powers (Part I)........................................................................................... 178
AFED33: Federal Taxation And The Doctrine Of Implied Powers (Part II).......................................................................................... 182
FED30: Concerning the General Power of Taxation ........................................................................................................................... 186
FED31: The Same Subject Continued (Concerning the General Power of Taxation) ......................................................................... 189
AFED35: Federal Taxing Power Must Be Restrained .......................................................................................................................... 208
AFED34: The Problem Of Concurrent Taxation.................................................................................................................................. 210
The Convention Overstepped its Bounds ....................................................................................................................................... 211
AFED37: Factions And The Constitution ............................................................................................................................................ 211
AFED38: Some Reactions To Federalist Arguments ........................................................................................................................... 214
FED37: Concerning the Difficulties of the Convention in Devising a Proper Form of Government. .................................................. 217
FED38: The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed. ....................................... 221
FED39: The Conformity of the Plan to Republican Principles ............................................................................................................ 226
FED40: On the Powers of the Convention to Form a Mixed Government Examined and Sustained. ............................................... 230
AFED40: On The Motivations And Authority Of The Founding Fathers ............................................................................................. 235
AFED39: Appearance And Reality-The Form Is Federal; The Effect Is National ................................................................................. 239
Powers of Federal Government ...................................................................................................................................................... 241
FED41: General View of the Powers Conferred by The Constitution ................................................................................................ 241
FED42: The Powers Conferred by the Constitution Further Considered ........................................................................................... 246
FED43: The Same Subject Continued (The Powers Conferred by the Constitution Further Considered).......................................... 250
AFED41-43: (Part I) "The Quantity Of Power The Union Must Possess Is One Thing; The Mode Of Exercising The Powers Given Is
Quite A Different Consideration" ....................................................................................................................................................... 255
AFED41-43: (Part II) "The Quantity Of Power The Union Must Possess Is One Thing; The Mode Of Exercising The Powers Given Is
Quite A Different Consideration" ....................................................................................................................................................... 259
Authorities of the States ................................................................................................................................................................. 263
AFED46: "Where Then Is The Restraint?" .......................................................................................................................................... 263
FED44: Restrictions on the Authority of the Several States ............................................................................................................... 265
FED45: The Alleged Danger From the Powers of the Union to the State Governments. .................................................................. 270
FED46: The Influence of the State and Federal Governments Compared ......................................................................................... 273
AFED44: What Congress Can Do; What A State Can Not ................................................................................................................... 277
AFED45: Powers Of National Government Dangerous To State Governments; New York As An Example ....................................... 280
Seperatation of Powers .................................................................................................................................................................. 284
AFED47: "Balance" Of Departments Not Achieved Under New Constitution.................................................................................... 284
AFED50: On Constitutional Conventions (Part II) ............................................................................................................................... 287
AFED49: On Constitutional Conventions (Part I) ................................................................................................................................ 289
FED47: The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts. ..................... 291
FED48: These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other. ................... 295
FED49: Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People
Through a Convention. ...................................................................................................................................................................... 298
FED50: Periodical Appeals to the People Considered ........................................................................................................................ 301
FED51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments. ... 303
AFED51: Do Checks And Balances Really Secure The Rights Of The People? .................................................................................... 306
AFED48: No Separation Of Departments Results In No Responsibility .............................................................................................. 310
The House of Representatives ........................................................................................................................................................ 311
AFED59: The Danger Of Congressional Control Of Elections ............................................................................................................. 311
AFED55: Will The House Of Representatives Be Genuinely Representative? (Part I) ........................................................................ 313
AFED56: Will The House Of Representatives Be Genuinely Representative? (Part II) ....................................................................... 316
AFED57: Will The House Of Representatives Be Genuinely Representative? (Part III) ...................................................................... 319
AFED58: Will The House Of Representatives Be Genuinely Representative? (Part IV) ..................................................................... 323
AFED61: Questions And Comments On The Constitutional Provisions Regarding The Election Of Congressmen ............................ 326
AFED54: Apportionment And Slavery: Northern And Southern Views .............................................................................................. 329
FED52: The House of Representatives ............................................................................................................................................... 332
FED53: The Same Subject Continued (The House of Representatives) ............................................................................................. 335
FED54: The Apportionment of Members Among the States ............................................................................................................. 338
FED55: The Total Number of the House of Representatives ............................................................................................................. 341
FED56: The Same Subject Continued (The Total Number of the House of Representatives) ............................................................ 344
FED57: The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with
Representation. ................................................................................................................................................................................. 347
FED58: Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands. ...................... 351
FED59: Concerning the Power of Congress to Regulate the Election of Members ........................................................................... 354
FED60: The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members) .......................... 357
FED61: The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members) .......................... 360
AFED52: On The Guarantee Of Congressional Biennial Elections ...................................................................................................... 362
AFED53: A Plea For The Right Of Recall ............................................................................................................................................. 365
AFED60: Will The Constitution Promote The Interests Of Favorite Classes? ..................................................................................... 367
The Senate ...................................................................................................................................................................................... 369
AFED64: On The Organization And Powers Of The Senate (Part III) .................................................................................................. 369
FED62: The Senate ............................................................................................................................................................................. 372
FED63: The Senate Continued ........................................................................................................................................................... 376
FED64: The Powers of the Senate ...................................................................................................................................................... 381
FED65: The Powers of the Senate Continued .................................................................................................................................... 385
FED66: Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered. ...................................... 388
AFED62: On The Organization And Powers Of The Senate (Part I) .................................................................................................... 392
AFED63: On The Organization And Powers Of The Senate (Part II) ................................................................................................... 394
AFED65: On The Organization And Powers Of The Senate (Part IV) .................................................................................................. 398
AFED66: From North Carolina ............................................................................................................................................................ 401
The Executive .................................................................................................................................................................................. 402
FED67: The Executive Department .................................................................................................................................................... 402
AFED67: Various Fears Concerning The Executive Department ........................................................................................................ 405
AFED70: The Powers And Dangerous Potentials Of His Elected Majesty .......................................................................................... 407
AFED73: Does The Presidential Veto Power Infringe On The Separation Of Departments? ............................................................. 408
AFED76-77: An Antifederalist View Of The Appointing Power Under The Constitution ................................................................... 411
AFED69: The Character Of The Executive Office ................................................................................................................................ 416
AFED75: A Note Protesting The Treaty-Making Provisions Of The Constitution ............................................................................... 418
AFED72: On The Electoral College; On Reeligibility Of The President ............................................................................................... 420
FED68: The Mode of Electing the President ...................................................................................................................................... 422
AFED71: The Presidential Term Of Office .......................................................................................................................................... 425
FED69: The Real Character of the Executive ...................................................................................................................................... 427
FED70: The Executive Department Further Considered .................................................................................................................... 431
FED71: The Duration in Office of the Executive ................................................................................................................................. 436
FED72: The Same Subject Continued, and Re-Eligibility of the Executive Considered. ..................................................................... 439
FED73: The Provision For The Support of the Executive, and the Veto Power .................................................................................. 442
FED74: The Command of the Military and Naval Forces, and the Pardoning Power of the Executive. ............................................. 446
FED75: The Treaty-Making Power of the Executive ........................................................................................................................... 448
FED76: The Appointing Power of the Executive ................................................................................................................................ 451
FED77: The Appointing Power Continued and Other Powers of the Executive Considered.............................................................. 454
AFED74: The President As Military King............................................................................................................................................. 457
AFED68: On The Mode Of Electing The President ............................................................................................................................. 459
The Judiciary ................................................................................................................................................................................... 461
AFED80: The Power Of The Judiciary (Part II) .................................................................................................................................... 461
AFED83: The Federal Judiciary And The Issue Of Trial By Jury ........................................................................................................... 465
AFED81: The Power Of The Judiciary (Part III) ................................................................................................................................... 466
AFED78-79: The Power Of The Judiciary (Part I) ................................................................................................................................ 471
AFED82: The Power Of The Judiciary (Part IV) ................................................................................................................................... 474
FED78: The Judiciary Department...................................................................................................................................................... 478
FED79: The Judiciary Continued......................................................................................................................................................... 483
FED80: The Powers of the Judiciary ................................................................................................................................................... 485
FED81: The Judiciary Continued, and the Distribution of the Judicial Authority. .............................................................................. 489
FED82: The Judiciary Continued......................................................................................................................................................... 495
FED83: The Judiciary Continued in Relation to Trial by Jury .............................................................................................................. 498
Concluding Remarks ....................................................................................................................................................................... 506
AFED84: On The Lack Of A Bill Of Rights ............................................................................................................................................ 506
AFED85: Concluding Remarks: Evils Under Confederation Exaggerated; Constitution Must Be Drastically Revised Before Adoption
........................................................................................................................................................................................................... 510
FED84: Certain General and Miscellaneous Objections to the Constitution Considered and Answered. ......................................... 514
FED85: Concluding Remarks .............................................................................................................................................................. 520
Appendix A ...................................................................................................................................................................................... 524
GENERAL TOPICS
FED1: GENERAL INTRODUCTION
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For the Independent Journal. Saturday, October 27, 1787
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HAMILTON
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To the People of the State of New York:
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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.
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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.
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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.
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It is not, however, my design to dwell upon observations of this nature. I am well aware that it would be
disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations
might subject them to suspicion) into interested or ambitious views. Candor will oblige us to admit that
even such men may be actuated by upright intentions; and it cannot be doubted that much of the
opposition which has made its appearance, or may hereafter make its appearance, will spring from sources,
blameless at least, if not respectable—the honest errors of minds led astray by preconceived jealousies and
fears. So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment,
that we, upon many occasions, see wise and good men on the wrong as well as on the right side of
questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of
moderation to those who are ever so much persuaded of their being in the right in any controversy. And a
further reason for caution, in this respect, might be drawn from the reflection that we are not always sure
Federalist vs. Anti-Federalist study guide –Edited by J. Kowalczyk
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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.
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And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it
will happen in this as in all former cases of great national discussion. A torrent of angry and malignant
passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude
that they will mutually hope to evince the justness of their opinions, and to increase the number of their
converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal
for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of
despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights
of the people, which is more commonly the fault of the head than of the heart, will be represented as mere
pretense and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on
the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt
to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten
that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and
well-informed judgment, their interest can never be separated; and that a dangerous ambition more often
lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of
zeal for the firmness and efficiency of government. History will teach us that the former has been found a
much more certain road to the introduction of despotism than the latter, and that of those men who have
overturned the liberties of republics, the greatest number have begun their career by paying an obsequious
court to the people; commencing demagogues, and ending tyrants.
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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.
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I propose, in a series of papers, to discuss the following interesting particulars:
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THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY THE INSUFFICIENCY OF THE PRESENT
CONFEDERATION TO PRESERVE THAT UNION THE NECESSITY OF A GOVERNMENT AT LEAST EQUALLY
ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS OBJECT THE CONFORMITY OF THE
PROPOSED CONSTITUTION TO THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT ITS ANALOGY TO YOUR
OWN STATE CONSTITUTION and lastly, THE ADDITIONAL SECURITY WHICH ITS ADOPTION WILL AFFORD TO
THE PRESERVATION OF THAT SPECIES OF GOVERNMENT, TO LIBERTY, AND TO PROPERTY.
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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.
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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
1
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 dismemberment of the Union. It
will therefore be of use to begin by examining the advantages of that Union, the certain evils, and the
probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute
the subject of my next address.
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PUBLIUS
1
The same idea, tracing the arguments to their consequences, is held out in several of the late publications
against the new Constitution
Page 7
AFED5: SCOTLAND AND ENGLAND - A CASE IN POINT
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The ongoing Federalist essays appeared from October of 1787 to May of 1788. Rebuttals (Antifederalist in
nature) to Federalist writers seldom were published. This selection was an answer to Publius [John Jay]
Federalist No. 5. This article by "AN OBSERVER," was printed in The New-York Journal and was reprinted in
the [Boston] American Herald on December 3, 1787.
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A writer, under the signature Publius or The Federalist, No. V, in the Daily Advertiser, and in the New York
Packet, with a view of proving the advantages which, he says, will be derived by the states if the new
constitution is adopted, has given extracts of a letter from Queen Anne to the Scotch parliament, on the
subject of a union between Scotland and England.
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I would beg leave to remark, that Publius has been very unfortunate in selecting these extracts as a case in
point, to convince the people of America of the benefits they would derive from a union, under such a
government as would be effected by the new system. It is a certainty, that when the union was the subject
of debate in the Scottish legislature, some of their most sensible and disinterested nobles, as well as
commoners! (who were not corrupted by English gold), violently opposed the union, and predicted that the
people of Scotland would, in fact, derive no advantages from a consolidation of government with England;
but, on the contrary, they would bear a great proportion of her debt, and furnish large bodies of men to
assist in her wars with France, with whom, before the union, Scotland was at all times on terms of the most
cordial amity. It was also predicted that the representation in the parliament of Great Britain, particularly in
the house of commons, was too small; forty-five members being very far from the proportion of Scotland,
when its extent and numbers were duly considered; and that even they, being so few, might (or at least a
majority of them might) at all times be immediately under the influence of the English ministry; and, of
course, very little of their attention would be given to the true interest of their constituents, especially if
they came in competition with the prospects of views of the ministry. How far these predictions have been
verified I believe it will not require much trouble to prove. It must be obvious to everyone, the least
acquainted with English history, that since the union of the two nations the great body of the people in
Scotland are in a much worse situation now, than they would be, were they a separate nation. This will be
fully illustrated by attending to the great emigrations which are made to America. For if the people could
have but a common support at home, it is unreasonable to suppose that such large numbers would quit
their country, break from the tender ties of kindred and friendship and trust themselves on a dangerous
voyage across a vast ocean, to a country of which they can know but very little except by common report. I
will only further remark, that it is not about two or three years since a member of the British parliament (I
believe Mr. Dempster) gave a most pathetic description of the sufferings of the commonalty of Scotland,
particularly on the sea coast, and endeavored to call the attention of parliament to their distresses, and
afford them some relief by encouraging their fisheries. It deserves also to be remembered, that the people
of Scotland, in the late war between France and Great Britain, petitioned to have arms and ammunition
supplied them by their general government, for their defense, alleging that they were incapable of
defending themselves and their property from an invasion unless they were assisted by government. It is a
truth that their petitions were disregarded, and reasons were assigned, that it would be dangerous to
entrust them with the means of defense, as they would then have it in their power to break the union.
From this representation of the situation of Scotland, surely no one can draw any conclusion that this
country would derive happiness or security from a government which would, in reality, give the people but
the mere name of being free. For if the representation, stipulated by the constitution, framed by the late
convention, be attentively and dispassionately considered, it must be obvious to every disinterested
observer (besides many other weighty objections which will present themselves to view), that the number
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is not, by any means, adequate to the present inhabitants of this extensive continent, much less to those it
will contain at a future period.
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I observe that the writer above mentioned, takes great pains to show the disadvantages which would result
from three or four distinct confederacies of these states. I must confess that I have not seen, in any of the
pieces published against the proposed constitution, any thing which gives the most distant idea that their
writers are in favor of such governments; but it is clear these objections arise from a consolidation not
affording security for the liberties of their country, and from hence it must evidently appear, that the design
of Publius, in artfully holding up to public view [the bugbear of] such confederacies, can be with no other
intention than wilfully to deceive his fellow citizens. I am confident it must be, and that it is, the sincere
wish of every true friend to the United States, that there should be a confederated national government,
but that it should be one which would have a control over national and external matters only, and not
interfere with the internal regulations and police of the different states in the union. Such a government,
while it would give us respectability abroad, would not encroach upon, or subvert our liberties at home.
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AN OBSERVER
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FED2: CONCERNING DANGERS FROM FOREIGN FORCE AND INFLUENCE
1
For the Independent Journal. Wednesday, October 31, 1787
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JAY
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WHEN the people of America reflect that they are now called upon to decide a question, which, in its
consequences, must prove one of the most important that ever engaged their attention, the propriety of
their taking a very comprehensive, as well as a very serious, view of it, will be evident.
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Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that
whenever and however it is instituted, the people must cede to it some of their natural rights in order to
vest it with requisite powers. It is well worthy of consideration therefore, whether it would conduce more
to the interest of the people of America that they should, to all general purposes, be one nation, under one
federal government, or that they should divide themselves into separate confederacies, and give to the
head of each the same kind of powers which they are advised to place in one national government.
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It has until lately been a received and uncontradicted opinion that the prosperity of the people of America
depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest
citizens have been constantly directed to that object. But politicians now appear, who insist that this
opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a
division of the States into distinct confederacies or sovereignties. However extraordinary this new doctrine
may appear, it nevertheless has its advocates; and certain characters who were much opposed to it
formerly, are at present of the number. Whatever may be the arguments or inducements which have
wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise
in the people at large to adopt these new political tenets without being fully convinced that they are
founded in truth and sound policy.
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It has often given me pleasure to observe that independent America was not composed of detached and
distant territories, but that one connected, fertile, wide-spreading country was the portion of our western
sons of liberty. Providence has in a particular manner blessed it with a variety of soils and productions, and
watered it with innumerable streams, for the delight and accommodation of its inhabitants. A succession of
navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble
rivers in the world, running at convenient distances, present them with highways for the easy
communication of friendly aids, and the mutual transportation and exchange of their various commodities.
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With equal pleasure I have as often taken notice that Providence has been pleased to give this one
connected country to one united people—a people descended from the same ancestors, speaking the same
language, professing the same religion, attached to the same principles of government, very similar in their
manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a
long and bloody war, have nobly established general liberty and independence.
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This country and this people seem to have been made for each other, and it appears as if it was the design
of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by
the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.
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Similar sentiments have hitherto prevailed among all orders and denominations of men among us. To all
general purposes we have uniformly been one people each individual citizen everywhere enjoying the same
national rights, privileges, and protection. As a nation we have made peace and war; as a nation we have
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vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered
into various compacts and conventions with foreign states.
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A strong sense of the value and blessings of union induced the people, at a very early period, to institute a
federal government to preserve and perpetuate it. They formed it almost as soon as they had a political
existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding,
and when the progress of hostility and desolation left little room for those calm and mature inquiries and
reflections which must ever precede the formation of a wise and well-balanced government for a free
people. It is not to be wondered at, that a government instituted in times so inauspicious, should on
experiment be found greatly deficient and inadequate to the purpose it was intended to answer.
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This intelligent people perceived and regretted these defects. Still continuing no less attached to union than
enamored of liberty, they observed the danger which immediately threatened the former and more
remotely the latter; and being persuaded that ample security for both could only be found in a national
government more wisely framed, they as with one voice, convened the late convention at Philadelphia, to
take that important subject under consideration.
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This convention composed of men who possessed the confidence of the people, and many of whom had
become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and
hearts of men, undertook the arduous task. In the mild season of peace, with minds unoccupied by other
subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally, without
having been awed by power, or influenced by any passions except love for their country, they presented
and recommended to the people the plan produced by their joint and very unanimous councils.
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Admit, for so is the fact, that this plan is only RECOMMENDED, not imposed, yet let it be remembered that
it is neither recommended to BLIND approbation, nor to BLIND reprobation; but to that sedate and candid
consideration which the magnitude and importance of the subject demand, and which it certainly ought to
receive. But this (as was remarked in the foregoing number of this paper) is more to be wished than
expected, that it may be so considered and examined. Experience on a former occasion teaches us not to be
too sanguine in such hopes. It is not yet forgotten that well-grounded apprehensions of imminent danger
induced the people of America to form the memorable Congress of 1774. That body recommended certain
measures to their constituents, and the event proved their wisdom; yet it is fresh in our memories how
soon the press began to teem with pamphlets and weekly papers against those very measures. Not only
many of the officers of government, who obeyed the dictates of personal interest, but others, from a
mistaken estimate of consequences, or the undue influence of former attachments, or whose ambition
aimed at objects which did not correspond with the public good, were indefatigable in their efforts to
persuade the people to reject the advice of that patriotic Congress. Many, indeed, were deceived and
deluded, but the great majority of the people reasoned and decided judiciously; and happy they are in
reflecting that they did so.
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They considered that the Congress was composed of many wise and experienced men. That, being
convened from different parts of the country, they brought with them and communicated to each other a
variety of useful information. That, in the course of the time they passed together in inquiring into and
discussing the true interests of their country, they must have acquired very accurate knowledge on that
head. That they were individually interested in the public liberty and prosperity, and therefore that it was
not less their inclination than their duty to recommend only such measures as, after the most mature
deliberation, they really thought prudent and advisable.
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These and similar considerations then induced the people to rely greatly on the judgment and integrity of
the Congress; and they took their advice, notwithstanding the various arts and endeavors used to deter
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them from it. But if the people at large had reason to confide in the men of that Congress, few of whom had
been fully tried or generally known, still greater reason have they now to respect the judgment and advice
of the convention, for it is well known that some of the most distinguished members of that Congress, who
have been since tried and justly approved for patriotism and abilities, and who have grown old in acquiring
political information, were also members of this convention, and carried into it their accumulated
knowledge and experience.
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It is worthy of remark that not only the first, but every succeeding Congress, as well as the late convention,
have invariably joined with the people in thinking that the prosperity of America depended on its Union. To
preserve and perpetuate it was the great object of the people in forming that convention, and it is also the
great object of the plan which the convention has advised them to adopt. With what propriety, therefore,
or for what good purposes, are attempts at this particular period made by some men to depreciate the
importance of the Union? Or why is it suggested that three or four confederacies would be better than
one? I am persuaded in my own mind that the people have always thought right on this subject, and that
their universal and uniform attachment to the cause of the Union rests on great and weighty reasons, which
I shall endeavor to develop and explain in some ensuing papers. They who promote the idea of substituting
a number of distinct confederacies in the room of the plan of the convention, seem clearly to foresee that
the rejection of it would put the continuance of the Union in the utmost jeopardy. That certainly would be
the case, and I sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the
dissolution of the Union arrives, America will have reason to exclaim, in the words of the poet: "FAREWELL!
A LONG FAREWELL TO ALL MY GREATNESS."
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PUBLIUS
Page 12
FED3: THE SAME SUBJECT CONTINUED (CONCERNING DANGERS FROM FOREIGN FORCE AND INFLUENCE)
1
For the Independent Journal. Saturday, November 3, 1787
2
JAY
3
To the People of the State of New York
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IT IS not a new observation that the people of any country (if, like the Americans, intelligent and
wellinformed) seldom adopt and steadily persevere for many years in an erroneous opinion respecting their
interests. That consideration naturally tends to create great respect for the high opinion which the people
of America have so long and uniformly entertained of the importance of their continuing firmly united
under one federal government, vested with sufficient powers for all general and national purposes.
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The more attentively I consider and investigate the reasons which appear to have given birth to this
opinion, the more I become convinced that they are cogent and conclusive.
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Among the many objects to which a wise and free people find it necessary to direct their attention, that of
providing for their SAFETY seems to be the first. The SAFETY of the people doubtless has relation to a great
variety of circumstances and considerations, and consequently affords great latitude to those who wish to
define it precisely and comprehensively.
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At present I mean only to consider it as it respects security for the preservation of peace and tranquillity, as
well as against dangers from FOREIGN ARMS AND INFLUENCE, as from dangers of the LIKE KIND arising
from domestic causes. As the former of these comes first in order, it is proper it should be the first
discussed. Let us therefore proceed to examine whether the people are not right in their opinion that a
cordial Union, under an efficient national government, affords them the best security that can be devised
against HOSTILITIES from abroad.
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The number of wars which have happened or will happen in the world will always be found to be in
proportion to the number and weight of the causes, whether REAL or PRETENDED, which PROVOKE or
INVITE them. If this remark be just, it becomes useful to inquire whether so many JUST causes of war are
likely to be given by UNITED AMERICA as by DISUNITED America; for if it should turn out that United
America will probably give the fewest, then it will follow that in this respect the Union tends most to
preserve the people in a state of peace with other nations.
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The JUST causes of war, for the most part, arise either from violation of treaties or from direct violence.
America has already formed treaties with no less than six foreign nations, and all of them, except Prussia,
are maritime, and therefore able to annoy and injure us. She has also extensive commerce with Portugal,
Spain, and Britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to
attend to.
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It is of high importance to the peace of America that she observe the laws of nations towards all these
powers, and to me it appears evident that this will be more perfectly and punctually done by one national
government than it could be either by thirteen separate States or by three or four distinct confederacies.
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Because when once an efficient national government is established, the best men in the country will not
only consent to serve, but also will generally be appointed to manage it; for, although town or country, or
other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive
departments, yet more general and extensive reputation for talents and other qualifications will be
necessary to recommend men to offices under the national government,—especially as it will have the
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widest field for choice, and never experience that want of proper persons which is not uncommon in some
of the States. Hence, it will result that the administration, the political counsels, and the judicial decisions of
the national government will be more wise, systematical, and judicious than those of individual States, and
consequently more satisfactory with respect to other nations, as well as more SAFE with respect to us.
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Because, under the national government, treaties and articles of treaties, as well as the laws of nations, will
always be expounded in one sense and executed in the same manner,—whereas, adjudications on the
same points and questions, in thirteen States, or in three or four confederacies, will not always accord or be
consistent; and that, as well from the variety of independent courts and judges appointed by different and
independent governments, as from the different local laws and interests which may affect and influence
them. The wisdom of the convention, in committing such questions to the jurisdiction and judgment of
courts appointed by and responsible only to one national government, cannot be too much commended.
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Because the prospect of present loss or advantage may often tempt the governing party in one or two
States to swerve from good faith and justice; but those temptations, not reaching the other States, and
consequently having little or no influence on the national government, the temptation will be fruitless, and
good faith and justice be preserved. The case of the treaty of peace with Britain adds great weight to this
reasoning.
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Because, even if the governing party in a State should be disposed to resist such temptations, yet as such
temptations may, and commonly do, result from circumstances peculiar to the State, and may affect a great
number of the inhabitants, the governing party may not always be able, if willing, to prevent the injustice
meditated, or to punish the aggressors. But the national government, not being affected by those local
circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to
prevent or punish its commission by others.
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So far, therefore, as either designed or accidental violations of treaties and the laws of nations afford JUST
causes of war, they are less to be apprehended under one general government than under several lesser
ones, and in that respect the former most favors the SAFETY of the people.
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As to those just causes of war which proceed from direct and unlawful violence, it appears equally clear to
me that one good national government affords vastly more security against dangers of that sort than can be
derived from any other quarter.
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Because such violences are more frequently caused by the passions and interests of a part than of the
whole; of one or two States than of the Union. Not a single Indian war has yet been occasioned by
aggressions of the present federal government, feeble as it is; but there are several instances of Indian
hostilities having been provoked by the improper conduct of individual States, who, either unable or
unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants.
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The neighborhood of Spanish and British territories, bordering on some States and not on others, naturally
confines the causes of quarrel more immediately to the borderers. The bordering States, if any, will be
those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be
most likely, by direct violence, to excite war with these nations; and nothing can so effectually obviate that
danger as a national government, whose wisdom and prudence will not be diminished by the passions
which actuate the parties immediately interested.
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But not only fewer just causes of war will be given by the national government, but it will also be more in
their power to accommodate and settle them amicably. They will be more temperate and cool, and in that
respect, as well as in others, will be more in capacity to act advisedly than the offending State. The pride of
states, as well as of men, naturally disposes them to justify all their actions, and opposes their
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acknowledging, correcting, or repairing their errors and offenses. The national government, in such cases,
will not be affected by this pride, but will proceed with moderation and candor to consider and decide on
the means most proper to extricate them from the difficulties which threaten them.
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Besides, it is well known that acknowledgments, explanations, and compensations are often accepted as
satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a State or
confederacy of little consideration or power.
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In the year 1685, the state of Genoa having offended Louis XIV., endeavored to appease him. He demanded
that they should send their Doge, or chief magistrate, accompanied by four of their senators, to FRANCE, to
ask his pardon and receive his terms. They were obliged to submit to it for the sake of peace. Would he on
any occasion either have demanded or have received the like humiliation from Spain, or Britain, or any
other POWERFUL nation?
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PUBLIUS
Page 15
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For the Independent Journal. Wednesday, November 7, 1787
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JAY
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MY LAST paper assigned several reasons why the safety of the people would be best secured by union
against the danger it may be exposed to by JUST causes of war given to other nations; and those reasons
show that such causes would not only be more rarely given, but would also be more easily accommodated,
by a national government than either by the State governments or the proposed little confederacies.
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But the safety of the people of America against dangers from FOREIGN force depends not only on their
forbearing to give JUST causes of war to other nations, but also on their placing and continuing themselves
in such a situation as not to INVITE hostility or insult; for it need not be observed that there are PRETENDED
as well as just causes of war.
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It is too true, however disgraceful it may be to human nature, that nations in general will make war
whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when
their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for
military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their
particular families or partisans. These and a variety of other motives, which affect only the mind of the
sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.
But, independent of these inducements to war, which are more prevalent in absolute monarchies, but
which well deserve our attention, there are others which affect nations as often as kings; and some of them
will on examination be found to grow out of our relative situation and circumstances.
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With France and with Britain we are rivals in the fisheries, and can supply their markets cheaper than they
can themselves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish.
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With them and with most other European nations we are rivals in navigation and the carrying trade; and we
shall deceive ourselves if we suppose that any of them will rejoice to see it flourish; for, as our carrying
trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more
their policy, to restrain than to promote it.
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In the trade to China and India, we interfere with more than one nation, inasmuch as it enables us to
partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with
commodities which we used to purchase from them.
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The extension of our own commerce in our own vessels cannot give pleasure to any nations who possess
territories on or near this continent, because the cheapness and excellence of our productions, added to
the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a
greater share in the advantages which those territories afford, than consists with the wishes or policy of
their respective sovereigns.
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Spain thinks it convenient to shut the Mississippi against us on the one side, and Britain excludes us from
the Saint Lawrence on the other; nor will either of them permit the other waters which are between them
and us to become the means of mutual intercourse and traffic.
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From these and such like considerations, which might, if consistent with prudence, be more amplified and
detailed, it is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets
of other nations, and that we are not to expect that they should regard our advancement in union, in power
and consequence by land and by sea, with an eye of indifference and composure.
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The people of America are aware that inducements to war may arise out of these circumstances, as well as
from others not so obvious at present, and that whenever such inducements may find fit time and
opportunity for operation, pretenses to color and justify them will not be wanting. Wisely, therefore, do
they consider union and a good national government as necessary to put and keep them in SUCH A
SITUATION as, instead of INVITING war, will tend to repress and discourage it. That situation consists in the
best possible state of defense, and necessarily depends on the government, the arms, and the resources of
the country.
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As the safety of the whole is the interest of the whole, and cannot be provided for without government,
either one or more or many, let us inquire whether one good government is not, relative to the object in
question, more competent than any other given number whatever.
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One government can collect and avail itself of the talents and experience of the ablest men, in whatever
part of the Union they may be found. It can move on uniform principles of policy. It can harmonize,
assimilate, and protect the several parts and members, and extend the benefit of its foresight and
precautions to each. In the formation of treaties, it will regard the interest of the whole, and the particular
interests of the parts as connected with that of the whole. It can apply the resources and power of the
whole to the defense of any particular part, and that more easily and expeditiously than State governments
or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia
under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief
Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if
divided into thirteen or into three or four distinct independent companies.
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What would the militia of Britain be if the English militia obeyed the government of England, if the Scotch
militia obeyed the government of Scotland, and if the Welsh militia obeyed the government of Wales?
Suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective
forces, to operate against the enemy so effectually as the single government of Great Britain would?
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We have heard much of the fleets of Britain, and the time may come, if we are wise, when the fleets of
America may engage attention. But if one national government, had not so regulated the navigation of
Britain as to make it a nursery for seamen—if one national government had not called forth all the national
means and materials for forming fleets, their prowess and their thunder would never have been celebrated.
Let England have its navigation and fleet—let Scotland have its navigation and fleet—let Wales have its
navigation and fleet—let Ireland have its navigation and fleet—let those four of the constituent parts of the
British empire be be under four independent governments, and it is easy to perceive how soon they would
each dwindle into comparative insignificance.
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Apply these facts to our own case. Leave America divided into thirteen or, if you please, into three or four
independent governments—what armies could they raise and pay—what fleets could they ever hope to
have? If one was attacked, would the others fly to its succor, and spend their blood and money in its
defense? Would there be no danger of their being flattered into neutrality by its specious promises, or
seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the
sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see
diminished? Although such conduct would not be wise, it would, nevertheless, be natural. The history of
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the states of Greece, and of other countries, abounds with such instances, and it is not improbable that
what has so often happened would, under similar circumstances, happen again.
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But admit that they might be willing to help the invaded State or confederacy. How, and when, and in what
proportion shall aids of men and money be afforded? Who shall command the allied armies, and from
which of them shall he receive his orders? Who shall settle the terms of peace, and in case of disputes what
umpire shall decide between them and compel acquiescence? Various difficulties and inconveniences
would be inseparable from such a situation; whereas one government, watching over the general and
common interests, and combining and directing the powers and resources of the whole, would be free from
all these embarrassments, and conduce far more to the safety of the people.
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But whatever may be our situation, whether firmly united under one national government, or split into a
number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will
act toward us accordingly. If they see that our national government is efficient and well administered, our
trade prudently regulated, our militia properly organized and disciplined, our resources and finances
discreetly managed, our credit re-established, our people free, contented, and united, they will be much
more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us
either destitute of an effectual government (each State doing right or wrong, as to its rulers may seem
convenient), or split into three or four independent and probably discordant republics or confederacies,
one inclining to Britain, another to France, and a third to Spain, and perhaps played off against each other
by the three, what a poor, pitiful figure will America make in their eyes! How liable would she become not
only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that
when a people or family so divide, it never fails to be against themselves.
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QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch Parliament, makes some observations on the
importance of the UNION then forming between England and Scotland, which merit our attention. I shall
present the public with one or two extracts from it: "An entire and perfect union will be the solid
foundation of lasting peace: It will secure your religion, liberty, and property; remove the animosities
amongst yourselves, and the jealousies and differences betwixt our two kingdoms. It must increase your
strength, riches, and trade; and by this union the whole island, being joined in affection and free from all
apprehensions of different interest, will be ENABLED TO RESIST ALL ITS ENEMIES." "We most earnestly
recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought
to a happy conclusion, being the only EFFECTUAL way to secure our present and future happiness, and
disappoint the designs of our and your enemies, who will doubtless, on this occasion, USE THEIR UTMOST
ENDEAVORS TO PREVENT OR DELAY THIS UNION."
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It was remarked in the preceding paper, that weakness and divisions at home would invite dangers from
abroad; and that nothing would tend more to secure us from them than union, strength, and good
government within ourselves. This subject is copious and cannot easily be exhausted.
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The history of Great Britain is the one with which we are in general the best acquainted, and it gives us
many useful lessons. We may profit by their experience without paying the price which it cost them.
Although it seems obvious to common sense that the people of such an island should be but one nation, yet
we find that they were for ages divided into three, and that those three were almost constantly embroiled
in quarrels and wars with one another. Notwithstanding their true interest with respect to the continental
nations was really the same, yet by the arts and policy and practices of those nations, their mutual
jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient
and troublesome than they were useful and assisting to each other.
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Should the people of America divide themselves into three or four nations, would not the same thing
happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being "joined
in affection" and free from all apprehension of different "interests," envy and jealousy would soon
extinguish confidence and affection, and the partial interests of each confederacy, instead of the general
interests of all America, would be the only objects of their policy and pursuits. Hence, like most other
BORDERING nations, they would always be either involved in disputes and war, or live in the constant
apprehension of them.
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The most sanguine advocates for three or four confederacies cannot reasonably suppose that they would
long remain exactly on an equal footing in point of strength, even if it was possible to form them so at first;
but, admitting that to be practicable, yet what human contrivance can secure the continuance of such
equality? Independent of those local circumstances which tend to beget and increase power in one part
and to impede its progress in another, we must advert to the effects of that superior policy and good
management which would probably distinguish the government of one above the rest, and by which their
relative equality in strength and consideration would be destroyed. For it cannot be presumed that the
same degree of sound policy, prudence, and foresight would uniformly be observed by each of these
confederacies for a long succession of years.
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Whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations
or confederacies should rise on the scale of political importance much above the degree of her neighbors,
that moment would those neighbors behold her with envy and with fear. Both those passions would lead
them to countenance, if not to promote, whatever might promise to diminish her importance; and would
also restrain them from measures calculated to advance or even to secure her prosperity. Much time would
not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to
lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. Distrust
naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by
invidious jealousies and uncandid imputations, whether expressed or implied.
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The North is generally the region of strength, and many local circumstances render it probable that the
most Northern of the proposed confederacies would, at a period not very distant, be unquestionably more
formidable than any of the others. No sooner would this become evident than the NORTHERN HIVE would
excite the same ideas and sensations in the more southern parts of America which it formerly did in the
southern parts of Europe. Nor does it appear to be a rash conjecture that its young swarms might often be
tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate
neighbors.
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They who well consider the history of similar divisions and confederacies will find abundant reason to
apprehend that those in contemplation would in no other sense be neighbors than as they would be
borderers; that they would neither love nor trust one another, but on the contrary would be a prey to
discord, jealousy, and mutual injuries; in short, that they would place us exactly in the situations in which
some nations doubtless wish to see us, viz., FORMIDABLE ONLY TO EACH OTHER.
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From these considerations it appears that those gentlemen are greatly mistaken who suppose that alliances
offensive and defensive might be formed between these confederacies, and would produce that
combination and union of wills of arms and of resources, which would be necessary to put and keep them
in a formidable state of defense against foreign enemies.
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When did the independent states, into which Britain and Spain were formerly divided, combine in such
alliance, or unite their forces against a foreign enemy? The proposed confederacies will be DISTINCT
NATIONS. Each of them would have its commerce with foreigners to regulate by distinct treaties; and as
their productions and commodities are different and proper for different markets, so would those treaties
be essentially different. Different commercial concerns must create different interests, and of course
different degrees of political attachment to and connection with different foreign nations. Hence it might
and probably would happen that the foreign nation with whom the SOUTHERN confederacy might be at
war would be the one with whom the NORTHERN confederacy would be the most desirous of preserving
peace and friendship. An alliance so contrary to their immediate interest would not therefore be easy to
form, nor, if formed, would it be observed and fulfilled with perfect good faith.
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Nay, it is far more probable that in America, as in Europe, neighboring nations, acting under the impulse of
opposite interests and unfriendly passions, would frequently be found taking different sides. Considering
our distance from Europe, it would be more natural for these confederacies to apprehend danger from one
another than from distant nations, and therefore that each of them should be more desirous to guard
against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances
between themselves. And here let us not forget how much more easy it is to receive foreign fleets into our
ports, and foreign armies into our country, than it is to persuade or compel them to depart. How many
conquests did the Romans and others make in the characters of allies, and what innovations did they under
the same character introduce into the governments of those whom they pretended to protect.
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Let candid men judge, then, whether the division of America into any given number of independent
sovereignties would tend to secure us against the hostilities and improper interference of foreign nations.
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PUBLIUS
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AFED1: GENERAL INTRODUCTION: A
COMBINATION"
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DANGEROUS PLAN OF BENEFIT ONLY TO THE
"ARISTOCRATICK
From The Boston Gazette and Country Journal, November 26, 1787.
I am pleased to see a spirit of inquiry burst the band of constraint upon the subject of the NEW PLAN for
consolidating the governments of the United States, as recommended by the late Convention. If it is
suitable to the GENIUS and HABITS of the citizens of these states, it will bear the strictest scrutiny. The
PEOPLE are the grand inquest who have a RIGHT to judge of its merits. The hideous daemon of Aristocracy
has hitherto had so much influence as to bar the channels of investigation, preclude the people from
inquiry and extinguish every spark of liberal information of its qualities. At length the luminary of
intelligence begins to beam its effulgent rays upon this important production; the deceptive mists cast
before the eyes of the people by the delusive machinations of its INTERESTED advocates begins to dissipate,
as darkness flies before the burning taper; and I dare venture to predict, that in spite of those mercenary
dectaimers, the plan will have a candid and complete examination. Those furious zealots who are for
cramming it down the throats of the people, without allowing them either time or opportunity to scan or
weigh it in the balance of their understandings, bear the same marks in their features as those who have
been long wishing to erect an aristocracy in THIS COMMONWEALTH [of Massachusetts]. Their menacing cry
is for a RIGID government, it matters little to them of what kind, provided it answers THAT description. As
the plan now offered comes something near their wishes, and is the most consonant to their views of any
they can hope for, they come boldly forward and DEMAND its adoption. They brand with infamy every man
who is not as determined and zealous in its favor as themselves. They cry aloud the whole must be
swallowed or none at all, thinking thereby to preclude any amendment; they are afraid of having it abated
of its present RIGID aspect. They have strived to overawe or seduce printers to stifle and obstruct a free
discussion, and have endeavored to hasten it to a decision before the people can duty reflect upon its
properties. In order to deceive them, they incessantly declare that none can discover any defect in the
system but bankrupts who wish no government, and officers of the present government who fear to lose a
part of their power. These zealous partisans may injure their own cause, and endanger the public tranquility
by impeding a proper inquiry; the people may suspect the WHOLE to be a dangerous plan, from such
COVERED and DESIGNING schemes to enforce it upon them. Compulsive or treacherous measures to
establish any government whatever, will always excite jealousy among a free people: better remain single
and alone, than blindly adopt whatever a few individuals shall demand, be they ever so wise. I had rather
be a free citizen of the small republic of Massachusetts, than an oppressed subject of the great American
empire. Let all act understandingly or not at all. If we can confederate upon terms that wilt secure to us our
liberties, it is an object highly desirable, because of its additional security to the whole. If the proposed plan
proves such an one, I hope it will be adopted, but if it will endanger our liberties as it stands, let it be
amended; in order to which it must and ought to be open to inspection and free inquiry. The inundation of
abuse that has been thrown out upon the heads of those who have had any doubts of its universal good
qualities, have been so redundant, that it may not be improper to scan the characters of its most strenuous
advocates. It will first be allowed that many undesigning citizens may wish its adoption from the best
motives, but these are modest and silent, when compared to the greater number, who endeavor to
suppress all attempts for investigation. These violent partisans are for having the people gulp down the
gilded pill blindfolded, whole, and without any qualification whatever. These consist generally, of the
NOBLE order of C[incinnatu]s, holders of public securities, men of great wealth and expectations of public
office, B[an]k[er]s and L[aw]y[er]s: these with their train of dependents form the Aristocratick combination.
The Lawyers in particular, keep up an incessant declamation for its adoption; like greedy gudgeons they
long to satiate their voracious stomachs with the golden bait. The numerous tribunals to be erected by the
new plan of consolidated empire, will find employment for ten times their present numbers; these are the
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LOAVES AND FISHES for which they hunger. They will probably find it suited to THEIR HABITS, if not to the
HABITS OF THE PEOPLE. There may be reasons for having but few of them in the State Convention, lest
THEIR '0@' INTEREST should be too strongly considered. The time draws near for the choice of Delegates. I
hope my fellow-citizens will look well to the characters of their preference, and remember the Old Patriots
of 75; they have never led them astray, nor need they fear to try them on this momentous occasion.
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A FEDERALIST
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AFED3: NEW CONSTITUTION CREATES A NATIONAL GOVERNMENT; WILL NOT ABATE FOREIGN
INFLUENCE; DANGERS OF CIVIL WAR AND DESPOTISM
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The following was published in the Maryland Gazette and Baltimore Advertiser, March 7, 1788. The true
identity of the author is unknown.
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There are but two modes by which men are connected in society, the one which operates on individuals,
this always has been, and ought still to be called, national government; the other which binds States and
governments together (not corporations, for there is no considerable nation on earth, despotic,
monarchical, or republican, that does not contain many subordinate corporations with various
constitutions) this last has heretofore been denominated a league or confederacy. The term federalists is
therefore improperly applied to themselves, by the friends and supporters of the proposed constitution.
This abuse of language does not help the cause; every degree of imposition serves only to irritate, but can
never convince. They are national men, and their opponents, or at least a great majority of them, are
federal, in the only true and strict sense of the word.
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Whether any form of national government is preferable for the Americans, to a league or confederacy, is a
previous question we must first make up our minds upon....
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That a national government will add to the dignity and increase the splendor of the United States abroad,
can admit of no doubt: it is essentially requisite for both. That it will render government, and officers of
government, more dignified at home is equally certain. That these objects are more suited to the manners,
if not [the] genius and disposition of our people is, I fear, also true. That it is requisite in order to keep us at
peace among ourselves, is doubtful. That it is necessary, to prevent foreigners from dividing us, or
interfering in our government, I deny positively; and, after all, I have strong doubts whether all its
advantages are not more specious than solid. We are vain, like other nations. We wish to make a noise in
the world; and feel hurt that Europeans are not so attentive to America in peace, as they were to America
in war. We are also, no doubt, desirous of cutting a figure in history. Should we not reflect, that quiet is
happiness? That content and pomp are incompatible? I have either read or heard this truth, which the
Americans should never forget: That the silence of historians is the surest record of the happiness of a
people. The Swiss have been four hundred years the envy of mankind, and there is yet scarcely an history of
their nation. What is history, but a disgusting and painful detail of the butcheries of conquerors, and the
woeful calamities of the conquered? Many of us are proud, and are frequently disappointed that office
confers neither respect or difference. No man of merit can ever be disgraced by office. A rogue in office
may be feared in some governments-he will be respected in none. After all, what we call respect and
difference only arise from contrast of situation, as most of our ideas come by comparison and relation.
Where the people are free there can be no great contrast or distinction among honest citizens in or out of
office. In proportion as the people lose their freedom, every gradation of distinction, between the
Governors and governed obtains, until the former become masters, and the latter become slaves. In all
governments virtue will command reverence. The divine Cato knew every Roman citizen by name, and
never assumed any preeminence; yet Cato found, and his memory will find, respect and reverence in the
bosoms of mankind, until this world returns into that nothing, from whence Omnipotence called it. That the
people are not at present disposed for, and are actually incapable of, governments of simplicity and equal
rights, I can no longer doubt. But whose fault is it? We make them bad, by bad governments, and then
abuse and despise them for being so. Our people are capable of being made anything that human nature
was or is capable of, if we would only have a little patience and give them good and wholesome institutions;
but I see none such and very little prospect of such. Alas! I see nothing in my fellow-citizens, that will permit
my still fostering the delusion, that they are now capable of sustaining the weight of SELF-GOVERNMENT: a
burden to which Greek and Roman shoulders proved unequal. The honor of supporting the dignity of the
Federalist And Anti-Federalist Papers Study Guide –Edited by J. Kowalczyk
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human character, seems reserved to the hardy Helvetians alone. If the body of the people will not govern
themselves, and govern themselves well too, the consequence is unavoidable-a FEW will, and must govern
them. Then it is that government becomes truly a government by force only, where men relinquish part of
their natural rights to secure the rest, instead of an union of will and force, to protect all their natural rights,
which ought to be the foundation of every rightful social compact.
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Whether national government will be productive of internal peace, is too uncertain to admit of decided
opinion. I only hazard a conjecture when I say, that our state disputes, in a confederacy, would be disputes
of levity and passion, which would subside before injury. The people being free, government having no right
to them, but they to government, they would separate and divide as interest or inclination prompted-as
they do at this day, and always have done, in Switzerland. In a national government, unless cautiously and
fortunately administered, the disputes will be the deep-rooted differences of interest, where part of the
empire must be injured by the operation of general law; and then should the sword of government be once
drawn (which Heaven avert) I fear it will not be sheathed, until we have waded through that series of
desolation, which France, Spain, and the other great kingdoms of the world have suffered, in order to bring
so many separate States into uniformity, of government and law; in which event the legislative power can
only be entrusted to one man (as it is with them) who can have no local attachments, partial interests, or
private views to gratify.
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That a national government will prevent the influence or danger of foreign intrigue, or secure us from
invasion, is in my judgment directly the reverse of the truth. The only foreign, or at least evil foreign
influence, must be obtained through corruption. Where the government is lodged in the body of the
people, as in Switzerland, they can never be corrupted; for no prince, or people, can have resources enough
to corrupt the majority of a nation; and if they could, the play is not worth the candle. The facility of
corruption is increased in proportion as power tends by representation or delegation, to a concentration in
the hands of a few. . . .
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As to any nation attacking a number of confederated independent republics ... it is not to be expected,
more especially as the wealth of the empire is there universally diffused, and will not be collected into any
one overgrown, luxurious and effeminate capital to become a lure to the enterprizing ambitious. That
extensive empire is a misfortune to be deprecated, will not now be disputed. The balance of power has long
engaged the attention of all the European world, in order to avoid the horrid evils of a general government.
The same government pervading a vast extent of territory, terrifies the minds of individuals into meanness
and submission. All human authority, however organized, must have confined limits, or insolence and
oppression will prove the offspring of its grandeur, and the difficulty or rather impossibility of escape
prevents resistance. Gibbon relates that some Roman Knights who had offended government in Rome were
taken up in Asia, in a very few days after. It was the extensive territory of the Roman republic that produced
a Sylla, a Marius, a Caligula, a Nero, and an Elagabalus. In small independent States contiguous to each
other, the people run away and leave despotism to reek its vengeance on itself; and thus it is that
moderation becomes with them, the law of self-preservation. These and such reasons founded on the
eternal and immutable nature of things have long caused and will continue to cause much difference of
sentiment throughout our wide extensive territories. From our divided and dispersed situation, and from
the natural moderation of the American character, it has hitherto proved a warfare of argument and
reason.
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A FARMER
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AFED4: FOREIGN WARS, CIVIL WARS, AND INDIAN WARS - THREE BUGBEARS
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Patrick Henry was a somewhat the antithesis to James Madison of Federalist note. While every bit as
emotional a writer, Henry (who penned the well remembered "Give Me Liberty of Give Me Death" phrase)
opposed the new Constitution for many reasons. He delivered long speeches to the Virginia Ratification
convention June 5, 7, and 9, 1788. The following is taken from Elliot's Debates, 111, 46, 48, 141-42, 150-56.
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If we recollect, on last Saturday, I made some observations on some of those dangers which these
gentlemen would fain persuade us hang over the citizens of this commonwealth [Virginia] to induce us to
change the government, and adopt the new plan. Unless there be great and awful dangers, the change is
dangerous, and the experiment ought not to be made. In estimating the magnitude of these dangers, we
are obliged to take a most serious view of them--to see them, to handle them, and to be familiar with them.
It is not sufficient to feign mere imaginary dangers; there must be a dreadful reality. The great question
between us is: Does that reality exist? These dangers are partially attributed to bad laws, execrated by the
community at large. It is said the people wish to change the government. I should be happy to meet them
on that ground. Should the people wish to change it, we should be innocent of the dangers. It is a fact that
the people do not wish to change their government. How am I to prove it? It will rest on my bare assertion,
unless supported by an internal conviction in men's breasts. My poor say-so is a mere nonentity. But, sir, I
am persuaded that four fifths of the people of Virginia must have amendments to the new plan, to
reconcile them to a change of their government. It is a slippery foundation for the people to rest their
political salvation on my or their assertions. No government can flourish unless it be founded on the
affection of the people. Unless gentlemen can be sure that this new system is founded on that ground, they
ought to stop their career.
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I will not repeat what the gentlemen say-I will mention one thing. There is a dispute between us and the
Spaniards about the right of navigating the Mississippi ... Seven states wished to relinquish this river to
them. The six Southern states opposed it. Seven states not being sufficient to convey it away, it remains
now ours....
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There is no danger of a dismemberment of our country, unless a Constitution be adopted which will enable
the government to plant enemies on our backs. By the Confederation, the rights of territory are secured. No
treaty can be made without the consent of nine states. While the consent of nine states is necessary to the
cession of territory, you are safe. If it be put in the power of a less number, you will most infallibly lose the
Mississippi. As long as we can preserve our unalienable rights, we are in safety. This new Constitution will
involve in its operation the loss of the navigation of that valuable river.
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The honorable gentleman [either James Madison or Edmund Randolph], cannot be ignorant of the Spanish
transactions [the Jay-Gardoqui negotiations]. A treaty had been nearly entered into with Spain, to
relinquish that navigation. That relinquishment would absolutely have taken place, had the consent of
seven states been sufficient ... This new government, I conceive, will enable those states who have already
discovered their inclination that way, to give away this river....
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We are threatened with danger [according to some,] for the non-payment of our debt due to France. We
have information come from an illustrious citizen of Virginia, who is now in Paris, which disproves the
suggestions of such danger. This citizen has not been in the airy regions of theoretic speculation-our
ambassador [Thomas Jefferson] is this worthy citizen. The ambassador of the United States of America is
not so despised as the honorable gentleman would make us believe. A servant of a republic is as much
respected as that of a monarch. The honorable gentleman tells us that hostile fleets are to be sent to make
reprisals upon us. Our ambassador tells you that the king of France has taken into consideration to enter
into commercial regulations, on reciprocal terms, with us, which will be of peculiar advantage to us. Does
this look like hostility? I might go farther. I might say, not from public authority, but good information, that
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his opinion is, that you reject this government. His character and abilities are in the highest estimation; he is
well acquainted, in every respect, with this country; equally so with the policy of the European nations. Let
us follow the sage advice of this common friend of our happiness.
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It is little usual for nations to send armies to collect debts. The house of Bourbon, that great friend of
America, will never attack her for her unwilling delay of payment. Give me leave to say, that Europe is too
much engaged about objects of greater importance, to attend to us. On that great theatre of the world, the
little American matters vanish. Do you believe that the mighty monarch of France, beholding the greatest
scenes that ever engaged the attention of a prince of that country, will divert himself from those important
objects, and now call for a settlement of accounts with America? This proceeding is not warranted by good
sense. The friendly disposition to us, and the actual situation of France, render the idea of danger from that
quarter absurd. Would this countryman of ours be fond of advising us to a measure which he knew to be
dangerous? And can it be reasonably supposed that he can be ignorant of any premeditated hostility
against this country? The honorable gentleman may suspect the account; but I will do our friend the justice
to say, that he would warn us of any danger from France.
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Do you suppose the Spanish monarch will risk a contest with the United States, when his feeble colonies are
exposed to them? Every advance the people make to the westward, makes them tremble for Mexico and
Peru. Despised as we are among ourselves, under our present government, we are terrible to that
monarchy. If this be not a fact, it is generally said so.
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We are, in the next place, frightened by dangers from Holland. We must change our government to escape
the wrath of that republic. Holland groans under a government like this new one. A stadtholder, sir, a Dutch
president, has brought on that country miseries which will not permit them to collect debts with fleets or
armies ... This President will bring miseries on us like those of Holland. Such is the condition of European
affairs, that it would be unsafe for them to send fleets or armies to collect debts.
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But here, sir, they make a transition to objects of another kind. We are presented with dangers of a very
uncommon nature. I am not acquainted with the arts of painting. Some gentlemen have a peculiar talent
for them. They are practised with great ingenuity on this occasion. As a counterpart to what we have
already been intimidated with, we are told that some lands have been sold, which cannot be found; and
that this will bring war on this country. Here the picture will not stand examination. Can it be supposed, if a
few land speculators and jobbers have violated the principles of probity, that it will involve this country in
war? Is there no redress to be otherwise obtained, even admitting the delinquents and sufferers to be
numerous? When gentlemen are thus driven to produce imaginary dangers, to induce this Convention to
assent to this change, I am sure it will not be uncandid to say that the change itself is really dangerous. Then
the Maryland compact is broken, and will produce perilous consequences. I see nothing very terrible in this.
The adoption of the new system will not remove the evil. Will they forfeit good neighborhood with us,
because the compact is broken? Then the disputes concerning the Carolina line are to involve us in dangers.
A strip of land running from the westward of the Alleghany to the Mississippi, is the subject of this
pretended dispute. I do not know the length or breadth of this disputed spot. Have they not regularly
confirmed our right to it, and relinquished all claims to it? I can venture to pledge that the people of
Carolina will never disturb us. . . . Then, sir, comes Pennsylvania, in terrible array. Pennsylvania is to go in
conflict with Virginia. Pennsylvania has been a good neighbor heretofore. She is federal- -something
terrible--Virginia cannot look her in the face. If we sufficiently attend to the actual situation of things, we
shall conclude that Pennsylvania will do what we do. A number of that country are strongly opposed to it.
Many of them have lately been convinced of its fatal tendency. They are disgorged of their federalism. . . .
Place yourselves in their situation; would you fight your neighbors for considering this great and awful
matter? . . . Whatever may be the disposition of the aristocratical politicians of that country, I know there
are friends of human nature in that state. If so, they will never make war on those who make professions of
what they are attached to themselves.
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As to the danger arising from borderers, it is mutual and reciprocal. If it be dangerous for Virginia, it is
equally so for them. It will be their true interest to be united with us. The danger of our being their enemies
will be a prevailing argument in our favor. It will be as powerful to admit us into the Union, as a vote of
adoption, without previous amendments, could possibly be.
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Then the savage Indians are to destroy us. We cannot look them in the face. The danger is here divided;
they are as terrible to the other states as to us. But, sir, it is well known that we have nothing to fear from
them. Our back settlers are considerably stronger than they. Their superiority increases daily. Suppose the
states to be confederated all around us; what we want in numbers, we shall make up otherwise. Our
compact situation and natural strength will secure us. But, to avoid all dangers, we must take shelter under
the federal government. Nothing gives a decided importance but this federal government. You will sip
sorrow, according to the vulgar phrase, if you want any other security than the laws of Virginia....
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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....
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The Confederation, this 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 . . . 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.
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AFED2: "WE HAVE BEEN TOLD OF PHANTOMS"
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This essay is an excerpted from a speech of William Grayson, June 11, 1788, in Jonathan Elliot (ed.), The
Debates in the Several State Conventions on the Adoption of the Federal Constitution.......(Philadelphia,
1876) 5 vols., III, 274-79.
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The adoption of this government will not meliorate our own particular system. I beg leave to consider the
circumstances of the Union antecedent to the meeting of the Convention at Philadelphia. We have been
told of phantoms and ideal dangers to lead us into measures which will, in my opinion, be the ruin of our
country. If the existence of those dangers cannot be proved, if there be no apprehension of wars, if there
be no rumors of wars, it will place the subject in a different light, and plainly evince to the world that there
cannot be any reason for adopting measures which we apprehend to be ruinous and destructive. When this
state [Virginia] proposed that the general government should be improved, Massachusetts was just
recovered from a rebellion which had brought the republic to the brink of destruction from a rebellion
which was crushed by that federal government which is now so much contemned and abhorred. A vote of
that august body for fifteen hundred men, aided by the exertions of the state, silenced all opposition, and
shortly restored the public tranquility. Massachusetts was satisfied that these internal commotions were so
happily settled, and was unwilling to risk any similar distresses by theoretic experiments. Were the Eastern
States willing to enter into this measure? Were they willing to accede to the proposal of Virginia? In what
manner was it received? Connecticut revolted at the idea. The Eastern States, sir, were unwilling to
recommend a meeting of a convention. They were well aware of the dangers of revolutions and changes.
Why was every effort used, and such uncommon pains taken, to bring it about? This would have been
unnecessary, had it been approved of by the people. Was Pennsylvania disposed for the reception of this
project of reformation? No, sir. She was even unwilling to amend her revenue laws, so as to make the five
per centum operative. She was satisfied with things as they were. There was no complaint, that ever I heard
of, from any other part of the Union, except Virginia. This being the case among ourselves, what dangers
were there to be apprehended from foreign nations? It will be easily shown that dangers from that quarter
were absolutely imaginary. Was not France friendly? Unequivocally so. She was devising new regulations of
commerce for our advantage. Did she harass us with applications for her money? Is it likely that France will
quarrel with us? Is it not reasonable to suppose that she will be more desirous than ever to cling, after
losing the Dutch republic, to her best ally? How are the Dutch? We owe them money, it is true; and are they
not willing that we should owe them more? Mr. [John] Adams applied to them for a new loan to the poor,
despised Confederation. They readily granted it. The Dutch have a fellow-feeling for us. They were in the
same situation with ourselves.
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I believe that the money which the Dutch borrowed of Henry IV is not yet paid. How did they pass Queen
Elizabeth's loan? At a very considerable discount. They took advantage of the weakness and necessities of
James I, and made their own terms with that contemptible monarch. Loans from nations are not like loans
from private men. Nations lend money, and grant assistance, to one another, from views of national
interest-France was willing to pluck the fairest feather out of the British crown. This was her object in aiding
us. She will not quarrel with us on pecuniary considerations. Congress considered it in this point of view; for
when a proposition was made to make it a debt of private persons, it was rejected without hesitation. That
respectable body wisely considered, that, while we remained their debtors in so considerable a degree,
they would not be inattentive to our interest.
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With respect to Spain, she is friendly in a high degree. I wish to know by whose interposition was the treaty
with Morocco made. Was it not by that of the king of Spain? Several predatory nations disturbed us, on
going into the Mediterranean. The influence of Charles III at the Barbary court, and four thousand pounds,
procured as good a treaty with Morocco as could be expected. But I acknowledge it is not of any
consequence, since the Algerines and people of Tunis have not entered into similar measures. We have
nothing to fear from Spain; and, were she hostile, she could never be formidable to this country. Her
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strength is so scattered, that she never can be dangerous to us either in peace or war. As to Portugal, we
have a treaty with her, which may be very advantageous, though it be not yet ratified.
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The domestic debt is diminished by considerable sales of western lands to Cutler, Sergeant, and Company;
to Simms; and to Royal, Flint, and Company. The board of treasury is authorized to sell in Europe, or any
where else, the residue of those lands.
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An act of Congress has passed, to adjust the public debts between the individual states and the United
States.
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Was our trade in a despicable situation? I shall say nothing of what did not come under my own
observation. When I was in Congress, sixteen vessels had had sea letters in the East India trade, and two
hundred vessels entered and cleared out, in the French West India Islands, in one year.
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I must confess that public credit has suffered, and that our public creditors have been ill used. This was
owing to a fault at the head-quarters-to Congress themselves-in not selling the western lands at an earlier
period. If requisitions have not been complied with, it must be owing to Congress, who might have put the
unpopular debts on the back lands. Commutation is abhorrent to New England ideas. Speculation is
abhorrent to the Eastern States. Those inconveniences have resulted from the bad policy of Congress.
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There are certain modes of governing the people which will succeed. There are others which will not. The
idea of consolidation is abhorrent to the people of this country. How were the sentiments of the people
before the meeting of the Convention at Philadelphia? They had only one object in view. Their ideas
reached no farther than to give the general government the five per centum impost, and the regulation of
trade. When it was agitated in Congress, in a committee of the whole, this was all that was asked, or was
deemed necessary. Since that period, their views have extended much farther. Horrors have been greatly
magnified since the rising of the Convention.
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We are now told by the honorable gentleman (Governor Randolph) that we shall have wars and rumors of
wars, that every calamity is to attend us, and that we shall be ruined and disunited forever, unless we adopt
this Constitution. Pennsylvania and Maryland are to fall upon us from the north, like the Goths and Vandals
of old; the Algerines, whose flat-sided vessels never came farther than Madeira, are to fill the Chesapeake
with mighty fleets, and to attack us on our front; the Indians are to invade us with numerous armies on our
rear, in order to convert our cleared lands into hunting- grounds; and the Carolinians, from the south,
(mounted on alligators, I presume,) are to come and destroy our cornfields, and eat up our little children!
These, sir, are the mighty dangers which await us if we reject dangers which are merely imaginary, and
ludicrous in the extreme! Are we to be destroyed by Maryland and Pennsylvania? What will democratic
states make war for, and how long since have they imbibed a hostile spirit?
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But the generality are to attack us. Will they attack us after violating their faith in the first Union? Will they
not violate their faith if they do not take us into their confederacy? Have they not agreed, by the old
Confederation, that the Union shall be perpetual, and that no alteration should take place without the
consent of Congress, and the confirmation of the legislatures of every state? I cannot think that there is
such depravity in mankind as that, after violating public faith so flagrantly, they should make war upon us,
also, for not following their example.
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The large states have divided the back lands among themselves, and have given as much as they thought
proper to the generality. For the fear of disunion, we are told that we ought to take measures which we
otherwise should not. Disunion is impossible. The Eastern States hold the fisheries, which are their
cornfields, by a hair. They have a dispute with the British government about their limits at this moment. Is
not a general and strong government necessary for their interest? If ever nations had inducements to
peace, the Eastern States now have. New York and Pennsylvania anxiously look forward for the fur trade.
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How can they obtain it but by union? Can the western posts be got or retained without union? How are the
little states inclined? They are not likely to disunite. Their weakness will prevent them from quarrelling.
Little men are seldom fond of quarrelling among giants. Is there not a strong inducement to union, while
the British are on one side and the Spaniards on the other? Thank Heaven, we have a Carthage of our own .
..
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But what would I do on the present occasion to remedy the existing defects of the present Confederation?
There are two opinions prevailing in the world-the one, that mankind can only be governed by force; the
other, that they are capable of freedom and a good government. Under a supposition that mankind can
govern themselves, I would recommend that the present Confederation should be amended. Give Congress
the regulation of commerce. Infuse new strength and spirit into the state governments; for, when the
component parts are strong, it will give energy to the government, although it be otherwise weak....
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Apportion the public debts in such a manner as to throw the unpopular ones on the back lands. Call only for
requisitions for the foreign interest and aid them by loans. Keep on so till the American character be
marked with some certain features. We are yet too young to know what we are fit for. The continual
migration of people from Europe, and the settlement of new countries on our western frontiers, are strong
arguments against making new experiments now in government. When these things are removed, we can
with greater prospect of success, devise changes. We ought to consider, as Montesquieu says, whether the
construction of the government be suitable to the genius and disposition of the people, as well as a variety
of other circumstances.
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CONFLICTS BETWEEN THE STATES
AFED9: A CONSOLIDATED GOVERNMENT IS A TYRANNY
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"MONTEZUMA," regarded as a Pennsylvanian, wrote this essay which showed up in the Independent
Gazetteer on October 17, 1787.
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We the Aristocratic party of the United States, lamenting the many inconveniences to which the late
confederation subjected the well-born, the better kind of people, bringing them down to the level of the
rabble-and holding in utter detestation that frontispiece to every bill of rights, "that all men are born
equal"-beg leave (for the purpose of drawing a line between such as we think were ordained to govern, and
such as were made to bear the weight of government without having any share in its administration) to
submit to our Friends in the first class for their inspection, the following defense of our monarchical,
aristocratical democracy.
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lst. As a majority of all societies consist of men who (though totally incapable of thinking or acting in
governmental matters) are more readily led than driven, we have thought meet to indulge them in
something like a democracy in the new constitution, which part we have designated by the popular name of
the House of Representatives. But to guard against every possible danger from this lower house, we have
subjected every bill they bring forward, to the double negative of our upper house and president. Nor have
we allowed the populace the right to elect their representatives annually . . . lest this body should be too
much under the influence and control of their constituents, and thereby prove the "weatherboard of our
grand edifice, to show the shiftings of every fashionable gale,"-for we have not yet to learn that little else is
wanting to aristocratize the most democratical representative than to make him somewhat independent of
his political creators. We have taken away that rotation of appointment which has so long perplexed us-that
grand engine of popular influence. Every man is eligible into our government from time to time for life. This
will have a two-fold good effect. First, it prevents the representatives from mixing with the lower class, and
imbibing their foolish sentiments, with which they would have come charged on re-election.
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2d. They will from the perpetuality of office be under our eye, and in a short time will think and act like us,
independently of popular whims and prejudices. For the assertion "that evil communications corrupt good
manners," is not more true than its reverse. We have allowed this house the power to impeach, but we
have tenaciously reserved the right to try. We hope gentlemen, you will see the policy of this clause-for
what matters it who accuses, if the accused is tried by his friends. In fine, this plebian house will have little
power, and that little be rightly shaped by our house of gentlemen, who will have a very extensive
influence-from their being chosen out of the genteeler class ... It is true, every third senatorial seat is to be
vacated duennually, but two-thirds of this influential body will remain in office, and be ready to direct or (if
necessary) bring over to the good old way, the young members, if the old ones should not be returned. And
whereas many of our brethren, from a laudable desire to support their rank in life above the commonalty,
have not only deranged their finances, but subjected their persons to indecent treatment (as being arrested
for debt, etc.) we have framed a privilege clause, by which they may laugh at the fools who trusted them.
But we have given out, that this clause was provided, only that the members might be able without
interruption, to deliberate on the important business of their country.
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We have frequently endeavored to effect in our respective states, the happy discrimination which pervades
this system; but finding we could not bring the states into it individually, we have determined ... and have
taken pains to leave the legislature of each free and independent state, as they now call themselves, in such
a situation that they will eventually be absorbed by our grand continental vortex, or dwindle into petty
corporations, and have power over little else than yoaking hogs or determining the width of cart wheels.
But (aware that an intention to annihilate state legislatures, would be objected to our favorite scheme) we
have made their existence (as a board of electors) necessary to ours. This furnishes us and our advocates
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with a fine answer to any clamors that may be raised on this subject. We have so interwoven continental
and state legislatures that they cannot exist separately; whereas we in truth only leave them the power of
electing us, for what can a provincial legislature do when we possess the exclusive regulation of external
and internal commerce, excise, duties, imposts, post-offices and roads; when we and we alone, have the
power to wage war, make peace, coin money (if we can get bullion) if not, borrow money, organize the
militia and call them forth to execute our decrees, and crush insurrections assisted by a noble body of
veterans subject to our nod, which we have the power of raising and keeping even in the time of peace.
What have we to fear from state legislatures or even from states, when we are armed with such powers,
with a president at our head? (A name we thought proper to adopt in conformity to the prejudices of a silly
people who are so foolishly fond of a Republican government, that we were obliged to accommodate in
names and forms to them, in order more effectually to secure the substance of our proposed plan; but we
all know that Cromwell was a King, with the title of Protector). I repeat it, what have we to fear armed with
such powers, with a president at our head who is captain- -general of the army, navy and militia of the
United States, who can make and unmake treaties, appoint and commission ambassadors and other
ministers, who can grant or refuse reprieves or pardons, who can make judges of the supreme and other
continental courts-in short, who will be the source, the fountain of honor, profit and power, whose
influence like the rays of the sun, will diffuse itself far and wide, will exhale all democratical vapors and
break the clouds of popular insurrection? But again gentlemen, our judicial power is a strong work, a
masked battery, few people see the guns we can and will ere long play off from it. For the judicial power
embraces every question which can arise in law or equity, under this constitution and under the laws of
"the United States" (which laws will be, you know, the supreme laws of the land). This power extends to all
cases, affecting ambassadors or 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."
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Now, can a question arise in the colonial courts, which the ingenuity or sophistry of an able lawyer may not
bring within one or other of the above cases? Certainly not. Then our court will have original or appellate
jurisdiction in all cases-and if so, how fallen are state judicatures-and must not every provincial law yield to
our supreme flat? Our constitution answers yes. . . . And finally we shall entrench ourselves so as to laugh at
the cabals of the commonalty. A few regiments will do at first; it must be spread abroad that they are
absolutely necessary to defend the frontiers. Now a regiment and then a legion must be added quietly; by
and by a frigate or two must be built, still taking care to intimate that they are essential to the support of
our revenue laws and to prevent smuggling. We have said nothing about a bill of rights, for we viewed it as
an eternal clog upon our designs, as a lock chain to the wheels of government-though, by the way, as we
have not insisted on rotation in our offices, the simile of a wheel is ill. We have for some time considered
the freedom of the press as a great evil-it spreads information, and begets a licentiousness in the people
which needs the rein more than the spur; besides, a daring printer may expose the plans of government
and lessen the consequence of our president and senate-for these and many other reasons we have said
nothing with respect to the "right of the people to speak and publish their sentiments" or about their
"palladiums of liberty" and such stuff. We do not much like that sturdy privilege of the people-the right to
demand the writ of habeas corpus. We have therefore reserved the power of refusing it in cases of
rebellion, and you know we are the judges of what is rebellion.... Our friends we find have been assiduous
in representing our federal calamities, until at length the people at large-frightened by the gloomy picture
on one side, and allured by the prophecies of some of our fanciful and visionary adherents on the other-are
ready to accept and confirm our proposed government without the delay or forms of examination--which
was the more to be wished, as they are wholly unfit to investigate the principles or pronounce on the merit
of so exquisite a system. Impressed with a conviction that this constitution is calculated to restrain the
influence and power of the LOWER CLASS-to draw that discrimination we have so long sought after; to
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secure to our friends privileges and offices, which were not to be ... [obtained] under the former
government, because they were in common; to take the burden of legislation and attendance on public
business off the commonalty, who will be much better able thereby to prosecute with effect their private
business; to destroy that political thirteen headed monster, the state sovereignties; to check the
licentiousness of the people by making it dangerous to speak or publish daring or tumultuary sentiments; to
enforce obedience to laws by a strong executive, aided by military pensioners; and finally to promote the
public and private interests of the better kind of people-we submit it to your judgment to take such
measures for its adoption as you in your wisdom may think fit.
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Signed by unanimous order of the lords spiritual and temporal.
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MONTEZUMA
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FED6: CONCERNING DANGERS FROM DISSENSIONS BETWEEN THE STATES
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THE three last numbers of this paper have been dedicated to an enumeration of the dangers to which we
should be exposed, in a state of disunion, from the arms and arts of foreign nations. I shall now proceed to
delineate dangers of a different and, perhaps, still more alarming kind—those which will in all probability
flow from dissensions between the States themselves, and from domestic factions and convulsions. These
have been already in some instances slightly anticipated; but they deserve a more particular and more full
investigation. A man must be far gone in Utopian speculations who can seriously doubt that, if these States
should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they
might be thrown would have frequent and violent contests with each other. To presume a want of motives
for such contests as an argument against their existence, would be to forget that men are ambitious,
vindictive, and rapacious. To look for a continuation of harmony between a number of independent,
unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human
events, and to set at defiance the accumulated experience of ages.
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The causes of hostility among nations are innumerable. There are some which have a general and almost
constant operation upon the collective bodies of society. Of this description are the love of power or the
desire of pre-eminence and dominion—the jealousy of power, or the desire of equality and safety. There
are others which have a more circumscribed though an equally operative influence within their spheres.
Such are the rivalships and competitions of commerce between commercial nations. And there are others,
not less numerous than either of the former, which take their origin entirely in private passions; in the
attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they
are members. Men of this class, whether the favorites of a king or of a people, have in too many instances
abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled
to sacrifice the national tranquillity to personal advantage or personal gratification.
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The celebrated Pericles, in compliance with the resentment of a prostitute, at the expense of much of the
blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the SAMMIANS. The
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same man, stimulated by private pique against the MEGARENSIANS, another nation of Greece, or to avoid
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a prosecution with which he was threatened as an accomplice of a supposed theft of the statuary Phidias,
or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in
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the purchase of popularity, or from a combination of all these causes, was the primitive author of that
famous and fatal war, distinguished in the Grecian annals by the name of the PELOPONNESIAN war; which,
after various vicissitudes, intermissions, and renewals, terminated in the ruin of the Athenian
commonwealth. The ambitious cardinal, who was prime minister to Henry VIII., permitting his vanity to
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aspire to the triple crown, entertained hopes of succeeding in the acquisition of that splendid prize by the
influence of the Emperor Charles V. To secure the favor and interest of this enterprising and powerful
monarch, he precipitated England into a war with France, contrary to the plainest dictates of policy, and at
the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels,
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Aspasia, vide "Plutarch's Life of Pericles."
Ibid.
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Ibid.
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Ibid. Phidias was supposed to have stolen some public gold, with the connivance of Pericles, for the
embellishment of the statue of Minerva.
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Worn by the popes.
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as of Europe in general. For if there ever was a sovereign who bid fair to realize the project of universal
monarchy, it was the Emperor Charles V., of whose intrigues Wolsey was at once the instrument and the
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dupe. The influence which the bigotry of one female, the petulance of another, and the cabals of a third,
had in the contemporary policy, ferments, and pacifications, of a considerable part of Europe, are topics
that have been too often descanted upon not to be generally known.
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To multiply examples of the agency of personal considerations in the production of great national events,
either foreign or domestic, according to their direction, would be an unnecessary waste of time. Those who
have but a superficial acquaintance with the sources from which they are to be drawn, will themselves
recollect a variety of instances; and those who have a tolerable knowledge of human nature will not stand
in need of such lights to form their opinion either of the reality or extent of that agency. Perhaps, however,
a reference, tending to illustrate the general principle, may with propriety be made to a case which has
lately happened among ourselves. If Shays had not been a DESPERATE DEBTOR, it is much to be doubted
whether
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Massachusetts would have been plunged into a civil war. But notwithstanding the concurring testimony of
experience, in this particular, there are still to be found visionary or designing men, who stand ready to
advocate the paradox of perpetual peace between the States, though dismembered and alienated from
each other. The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the
manners of men, and to extinguish those inflammable humors which have so often kindled into wars.
Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with
each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and
concord.
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Is it not (we may ask these projectors in politics) the true interest of all nations to cultivate the same
benevolent and philosophic spirit? If this be their true interest, have they in fact pursued it? Has it not, on
the contrary, invariably been found that momentary passions, and immediate interest, have a more active
and imperious control over human conduct than general or remote considerations of policy, utility or
justice? Have republics in practice been less addicted to war than monarchies? Are not the former
administered by MEN as well as the latter? Are there not aversions, predilections, rivalships, and desires of
unjust acquisitions, that affect nations as well as kings? Are not popular assemblies frequently subject to
the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? Is it not
well known that their determinations are often governed by a few individuals in whom they place
confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? Has
commerce hitherto done anything more than change the objects of war? Is not the love of wealth as
domineering and enterprising a passion as that of power or glory? Have there not been as many wars
founded upon commercial motives since that has become the prevailing system of nations, as were before
occasioned by the cupidity of territory or dominion? Has not the spirit of commerce, in many instances,
administered new incentives to the appetite, both for the one and for the other? Let experience, the least
fallible guide of human opinions, be appealed to for an answer to these inquiries.
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Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and Carthage, of the
commercial kind. Yet were they as often engaged in wars, offensive and defensive, as the neighboring
monarchies of the same times. Sparta was little better than a well regulated camp; and Rome was never
sated of carnage and conquest. Carthage, though a commercial republic, was the aggressor in the very war
that ended in her destruction. Hannibal had carried her arms into the heart of Italy and to the gates of
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Madame de Maintenon.
Duchess of Marlborough.
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Madame de Pompadour.
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Rome, before Scipio, in turn, gave him an overthrow in the territories of Carthage, and made a conquest of
the commonwealth.
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Venice, in later times, figured more than once in wars of ambition, till, becoming an object to the other
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Italian states, Pope Julius II. Found means to accomplish that formidable league, which gave a deadly
blow to the power and pride of this haughty republic.
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The provinces of Holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous
part in the wars of Europe. They had furious contests with England for the dominion of the sea, and were
among the most persevering and most implacable of the opponents of Louis XIV.
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In the government of Britain the representatives of the people compose one branch of the national
legislature. Commerce has been for ages the predominant pursuit of that country. Few nations,
nevertheless, have been more frequently engaged in war; and the wars in which that kingdom has been
engaged have, in numerous instances, proceeded from the people.
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There have been, if I may so express it, almost as many popular as royal wars. The cries of the nation and
the importunities of their representatives have, upon various occasions, dragged their monarchs into war,
or continued them in it, contrary to their inclinations, and sometimes contrary to the real interests of the
State. In that memorable struggle for superiority between the rival houses of AUSTRIA and BOURBON,
which so long kept Europe in a flame, it is well known that the antipathies of the English against the French,
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seconding the ambition, or rather the avarice, of a favorite leader, protracted the war beyond the limits
marked out by sound policy, and for a considerable time in opposition to the views of the court. The wars of
these two last-mentioned nations have in a great measure grown out of commercial considerations,—the
desire of supplanting and the fear of being supplanted, either in particular branches of traffic or in the
general advantages of trade and navigation, and sometimes even the more culpable desire of sharing in the
commerce of other nations without their consent.
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The last war but between Britain and Spain sprang from the attempts of the British merchants to prosecute
an illicit trade with the Spanish main. These unjustifiable practices on their part produced severity on the
part of the Spaniards toward the subjects of Great Britain which were not more justifiable, because they
exceeded the bounds of a just retaliation and were chargeable with inhumanity and cruelty. Many of the
English who were taken on the Spanish coast were sent to dig in the mines of Potosi; and by the usual
progress of a spirit of resentment, the innocent were, after a while, confounded with the guilty in
indiscriminate punishment. The complaints of the merchants kindled a violent flame throughout the nation,
which soon after broke out in the House of Commons, and was communicated from that body to the
ministry. Letters of reprisal were granted, and a war ensued, which in its consequences overthrew all the
alliances that but twenty years before had been formed with sanguine expectations of the most beneficial
fruits.
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From this summary of what has taken place in other countries, whose situations have borne the nearest
resemblance to our own, what reason can we have to confide in those reveries which would seduce us into
an expectation of peace and cordiality between the members of the present confederacy, in a state of
separation? Have we not already seen enough of the fallacy and extravagance of those idle theories which
have amused us with promises of an exemption from the imperfections, weaknesses and evils incident to
society in every shape? Is it not time to awake from the deceitful dream of a golden age, and to adopt as a
practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the
globe, are yet remote from the happy empire of perfect wisdom and perfect virtue? Let the point of
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The League of Cambray, comprehending the Emperor, the King of France, the King of Aragon, and most of
the Italian princes and states.
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The Duke of Marlborough.
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extreme depression to which our national dignity and credit have sunk, let the inconveniences felt
everywhere from a lax and ill administration of government, let the revolt of a part of the State of North
Carolina, the late menacing disturbances in Pennsylvania, and the actual insurrections and rebellions in
Massachusetts, declare!
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So far is the general sense of mankind from corresponding with the tenets of those who endeavor to lull
asleep our apprehensions of discord and hostility between the States, in the event of disunion, that it has
from long observation of the progress of society become a sort of axiom in politics, that vicinity or nearness
of situation, constitutes nations natural enemies. An intelligent writer expresses himself on this subject to
this effect: "NEIGHBORING NATIONS (says he) are naturally enemies of each other unless their common
weakness forces them to league in a CONFEDERATE REPUBLIC, and their constitution prevents the
differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to
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aggrandize themselves at the expense of their neighbors." This passage, at the same time, points out the
EVIL and suggests the REMEDY.
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Vide "Principes des Negociations" par l'Abbé de Mably.
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FED7: THE SAME SUBJECT CONTINUED (CONCERNING DANGERS
STATES)
1
For the Independent Journal. Thursday, November 15, 1787
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HAMILTON
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FROM
DISSENSIONS BETWEEN
THE
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IT IS sometimes asked, with an air of seeming triumph, what inducements could the States have, if
disunited, to make war upon each other? It would be a full answer to this question to say—precisely the
same inducements which have, at different times, deluged in blood all the nations in the world. But,
unfortunately for us, the question admits of a more particular answer. There are causes of differences
within our immediate contemplation, of the tendency of which, even under the restraints of a federal
constitution, we have had sufficient experience to enable us to form a judgment of what might be expected
if those restraints were removed.
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Territorial disputes have at all times been found one of the most fertile sources of hostility among nations.
Perhaps the greatest proportion of wars that have desolated the earth have sprung from this origin. This
cause would exist among us in full force. We have a vast tract of unsettled territory within the boundaries
of the United States. There still are discordant and undecided claims between several of them, and the
dissolution of the Union would lay a foundation for similar claims between them all. It is well known that
they have heretofore had serious and animated discussion concerning the rights to the lands which were
ungranted at the time of the Revolution, and which usually went under the name of crown lands. The States
within the limits of whose colonial governments they were comprised have claimed them as their property,
the others have contended that the rights of the crown in this article devolved upon the Union; especially
as to all that part of the Western territory which, either by actual possession, or through the submission of
the Indian proprietors, was subjected to the jurisdiction of the king of Great Britain, till it was relinquished
in the treaty of peace. This, it has been said, was at all events an acquisition to the Confederacy by compact
with a foreign power. It has been the prudent policy of Congress to appease this controversy, by prevailing
upon the States to make cessions to the United States for the benefit of the whole. This has been so far
accomplished as, under a continuation of the Union, to afford a decided prospect of an amicable
termination of the dispute. A dismemberment of the Confederacy, however, would revive this dispute, and
would create others on the same subject. At present, a large part of the vacant Western territory is, by
cession at least, if not by any anterior right, the common property of the Union. If that were at an end, the
States which made the cession, on a principle of federal compromise, would be apt when the motive of the
grant had ceased, to reclaim the lands as a reversion. The other States would no doubt insist on a
proportion, by right of representation. Their argument would be, that a grant, once made, could not be
revoked; and that the justice of participating in territory acquired or secured by the joint efforts of the
Confederacy, remained undiminished. If, contrary to probability, it should be admitted by all the States,
that each had a right to a share of this common stock, there would still be a difficulty to be surmounted, as
to a proper rule of apportionment. Different principles would be set up by different States for this purpose;
and as they would affect the opposite interests of the parties, they might not easily be susceptible of a
pacific adjustment.
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In the wide field of Western territory, therefore, we perceive an ample theatre for hostile pretensions,
without any umpire or common judge to interpose between the contending parties. To reason from the
past to the future, we shall have good ground to apprehend, that the sword would sometimes be appealed
to as the arbiter of their differences. The circumstances of the dispute between Connecticut and
Pennsylvania, respecting the land at Wyoming, admonish us not to be sanguine in expecting an easy
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accommodation of such differences. The articles of confederation obliged the parties to submit the matter
to the decision of a federal court. The submission was made, and the court decided in favor of
Pennsylvania. But Connecticut gave strong indications of dissatisfaction with that determination; nor did
she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent
was found for the loss she supposed herself to have sustained. Nothing here said is intended to convey the
slightest censure on the conduct of that State. She no doubt sincerely believed herself to have been injured
by the decision; and States, like individuals, acquiesce with great reluctance in determinations to their
disadvantage.
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The progress of the controversy between this State and the district of Vermont, can vouch the opposition
we experienced, as well from States not interested as from those which were interested in the claim; and
can attest the danger to which the peace of the Confederacy might have been exposed, had this State
attempted to assert its rights by force. Two motives preponderated in that opposition: one, a jealousy
entertained of our future power; and the other, the interest of certain individuals of influence in the
neighboring States, who had obtained grants of lands under the actual government of that district. Even the
States which brought forward claims, in contradiction to ours, seemed more solicitous to dismember this
State, than to establish their own pretensions. These were New Hampshire, Massachusetts, and
Connecticut. New Jersey and Rhode Island, upon all occasions, discovered a warm zeal for the
independence of Vermont; and Maryland, till alarmed by the appearance of a connection between Canada
and that State, entered deeply into the same views. These being small States, saw with an unfriendly eye
the perspective of our growing greatness. In a review of these transactions we may trace some of the
causes which would be likely to embroil the States with each other, if it should be their unpropitious destiny
to become disunited.
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The competitions of commerce would be another fruitful source of contention. The States less favorably
circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in
the advantages of their more fortunate neighbors. Each State, or separate confederacy, would pursue a
system of commercial policy peculiar to itself. This would occasion distinctions, preferences, and exclusions,
which would beget discontent. The habits of intercourse, on the basis of equal privileges, to which we have
been accustomed since the earliest settlement of the country, would give a keener edge to those causes of
discontent than they would naturally have independent of this circumstance. WE SHOULD BE READY TO
DENOMINATE INJURIES THOSE THINGS WHICH WERE IN REALITY THE JUSTIFIABLE ACTS OF INDEPENDENT
SOVEREIGNTIES CONSULTING A DISTINCT INTEREST. The spirit of enterprise, which characterizes the
commercial part of America, has left no occasion of displaying itself unimproved. It is not at all probable
that this unbridled spirit would pay much respect to those regulations of trade by which particular States
might endeavor to secure exclusive benefits to their own citizens. The infractions of these regulations, on
one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these
to reprisals and wars.
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The opportunities which some States would have of rendering others tributary to them by commercial
regulations would be impatiently submitted to by the tributary States. The relative situation of New York,
Connecticut, and New Jersey would afford an example of this kind. New York, from the necessities of
revenue, must lay duties on her importations. A great part of these duties must be paid by the inhabitants
of the two other States in the capacity of consumers of what we import. New York would neither be willing
nor able to forego this advantage. Her citizens would not consent that a duty paid by them should be
remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this
impediment in the way, to distinguish the customers in our own markets. Would Connecticut and New
Jersey long submit to be taxed by New York for her exclusive benefit? Should we be long permitted to
remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived
an advantage so odious to our neighbors, and, in their opinion, so oppressive? Should we be able to
preserve it against the incumbent weight of Connecticut on the one side, and the co-operating pressure of
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New Jersey on the other? These are questions that temerity alone will answer in the affirmative. The public
debt of the Union would be a further cause of collision between the separate States or confederacies. The
apportionment, in the first instance, and the progressive extinguishment afterward, would be alike
productive of ill-humor and animosity. How would it be possible to agree upon a rule of apportionment
satisfactory to all? There is scarcely any that can be proposed which is entirely free from real objections.
These, as usual, would be exaggerated by the adverse interest of the parties. There are even dissimilar
views among the States as to the general principle of discharging the public debt. Some of them, either less
impressed with the importance of national credit, or because their citizens have little, if any, immediate
interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at
any rate. These would be inclined to magnify the difficulties of a distribution. Others of them, a numerous
body of whose citizens are creditors to the public beyond proportion of the State in the total amount of the
national debt, would be strenuous for some equitable and effective provision. The procrastinations of the
former would excite the resentments of the latter. The settlement of a rule would, in the meantime, be
postponed by real differences of opinion and affected delays. The citizens of the States interested would
clamour; foreign powers would urge for the satisfaction of their just demands, and the peace of the States
would be hazarded to the double contingency of external invasion and internal contention.
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Suppose the difficulties of agreeing upon a rule surmounted, and the apportionment made. Still there is
great room to suppose that the rule agreed upon would, upon experiment, be found to bear harder upon
some States than upon others. Those which were sufferers by it would naturally seek for a mitigation of the
burden. The others would as naturally be disinclined to a revision, which was likely to end in an increase of
their own incumbrances. Their refusal would be too plausible a pretext to the complaining States to
withhold their contributions, not to be embraced with avidity; and the non-compliance of these States with
their engagements would be a ground of bitter discussion and altercation. If even the rule adopted should
in practice justify the equality of its principle, still delinquencies in payments on the part of some of the
States would result from a diversity of other causes—the real deficiency of resources; the mismanagement
of their finances; accidental disorders in the management of the government; and, in addition to the rest,
the reluctance with which men commonly part with money for purposes that have outlived the exigencies
which produced them, and interfere with the supply of immediate wants. Delinquencies, from whatever
causes, would be productive of complaints, recriminations, and quarrels. There is, perhaps, nothing more
likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common
object that does not yield an equal and coincident benefit. For it is an observation, as true as it is trite, that
there is nothing men differ so readily about as the payment of money.
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Laws in violation of private contracts, as they amount to aggressions on the rights of those States whose
citizens are injured by them, may be considered as another probable source of hostility. We are not
authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the
individual States hereafter, if unrestrained by any additional checks, than we have heretofore seen in too
many instances disgracing their several codes. We have observed the disposition to retaliation excited in
Connecticut in consequence of the enormities perpetrated by the Legislature of Rhode Island; and we
reasonably infer that, in similar cases, under other circumstances, a war, not of PARCHMENT, but of the
sword, would chastise such atrocious breaches of moral obligation and social justice. The probability of
incompatible alliances between the different States or confederacies and different foreign nations, and the
effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding
papers. From the view they have exhibited of this part of the subject, this conclusion is to be drawn, that
America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would,
by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of
European politics and wars; and by the destructive contentions of the parts into which she was divided,
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would be likely to become a prey to the artifices and machinations of powers equally the enemies of them
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all. Divide et impera must be the motto of every nation that either hates or fears us.
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Divide and command.
In order that the whole subject of these papers may as soon as possible be laid before the public, it is
proposed to publish them four times a week—on Tuesday in the New York Packet and on Thursday in the
Daily Advertiser.
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FED8: THE CONSEQUENCES OF HOSTILITIES BETWEEN THE STATES
1
From the New York Packet. Tuesday, November 20, 1787.
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HAMILTON
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ASSUMING it therefore as an established truth that the several States, in case of disunion, or such
combinations of them as might happen to be formed out of the wreck of the general Confederacy, would
be subject to those vicissitudes of peace and war, of friendship and enmity, with each other, which have
fallen to the lot of all neighboring nations not united under one government, let us enter into a concise
detail of some of the consequences that would attend such a situation.
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War between the States, in the first period of their separate existence, would be accompanied with much
greater distresses than it commonly is in those countries where regular military establishments have long
obtained. The disciplined armies always kept on foot on the continent of Europe, though they bear a
malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advantage
of rendering sudden conquests impracticable, and of preventing that rapid desolation which used to mark
the progress of war prior to their introduction. The art of fortification has contributed to the same ends.
The nations of Europe are encircled with chains of fortified places, which mutually obstruct invasion.
Campaigns are wasted in reducing two or three frontier garrisons, to gain admittance into an enemy's
country. Similar impediments occur at every step, to exhaust the strength and delay the progress of an
invader. Formerly, an invading army would penetrate into the heart of a neighboring country almost as
soon as intelligence of its approach could be received; but now a comparatively small force of disciplined
troops, acting on the defensive, with the aid of posts, is able to impede, and finally to frustrate, the
enterprises of one much more considerable. The history of war, in that quarter of the globe, is no longer a
history of nations subdued and empires overturned, but of towns taken and retaken; of battles that decide
nothing; of retreats more beneficial than victories; of much effort and little acquisition.
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In this country the scene would be altogether reversed. The jealousy of military establishments would
postpone them as long as possible. The want of fortifications, leaving the frontiers of one state open to
another, would facilitate inroads. The populous States would, with little difficulty, overrun their less
populous neighbors. Conquests would be as easy to be made as difficult to be retained. War, therefore,
would be desultory and predatory. PLUNDER and devastation ever march in the train of irregulars. The
calamities of individuals would make the principal figure in the events which would characterize our military
exploits.
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This picture is not too highly wrought; though, I confess, it would not long remain a just one. Safety from
external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after
a time, give way to its dictates. The violent destruction of life and property incident to war, the continual
effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty
to resort for repose and security to institutions which have a tendency to destroy their civil and political
rights. To be more safe, they at length become willing to run the risk of being less free.
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The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military
establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is
15
therefore inferred that they may exist under it. Their existence, however, from the very terms of the
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This objection will be fully examined in its proper place, and it will be shown that the only natural
precaution which could have been taken on this subject has been taken; and a much better one than is to
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proposition, is, at most, problematical and uncertain. But standing armies, it may be replied, must
inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which
require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies
would first have recourse to them, to put themselves upon an equality with their more potent neighbors.
They would endeavor to supply the inferiority of population and resources by a more regular and effective
system of defense, by disciplined troops, and by fortifications. They would, at the same time, be
necessitated to strengthen the executive arm of government, in doing which their constitutions would
acquire a progressive direction toward monarchy. It is of the nature of war to increase the executive at the
expense of the legislative authority.
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The expedients which have been mentioned would soon give the States or confederacies that made use of
them a superiority over their neighbors. Small states, or states of less natural strength, under vigorous
governments, and with the assistance of disciplined armies, have often triumphed over large states, or
states of greater natural strength, which have been destitute of these advantages. Neither the pride nor the
safety of the more important States or confederacies would permit them long to submit to this mortifying
and adventitious superiority. They would quickly resort to means similar to those by which it had been
effected, to reinstate themselves in their lost pre-eminence. Thus, we should, in a little time, see
established in every part of this country the same engines of despotism which have been the scourge of the
Old World. This, at least, would be the natural course of things; and our reasonings will be the more likely
to be just, in proportion as they are accommodated to this standard. These are not vague inferences drawn
from supposed or speculative defects in a Constitution, the whole power of which is lodged in the hands of
a people, or their representatives and delegates, but they are solid conclusions, drawn from the natural and
necessary progress of human affairs.
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It may, perhaps, be asked, by way of objection to this, why did not standing armies spring up out of the
contentions which so often distracted the ancient republics of Greece? Different answers, equally
satisfactory, may be given to this question. The industrious habits of the people of the present day,
absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are
incompatible with the condition of a nation of soldiers, which was the true condition of the people of those
republics. The means of revenue, which have been so greatly multiplied by the increase of gold and silver
and of the arts of industry, and the science of finance, which is the offspring of modern times, concurring
with the habits of nations, have produced an entire revolution in the system of war, and have rendered
disciplined armies, distinct from the body of the citizens, the inseparable companions of frequent hostility.
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There is a wide difference, also, between military establishments in a country seldom exposed by its
situation to internal invasions, and in one which is often subject to them, and always apprehensive of them.
The rulers of the former can have a good pretext, if they are even so inclined, to keep on foot armies so
numerous as must of necessity be maintained in the latter. These armies being, in the first case, rarely, if at
all, called into activity for interior defense, the people are in no danger of being broken to military
subordination. The laws are not accustomed to relaxations, in favor of military exigencies; the civil state
remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other
state. The smallness of the army renders the natural strength of the community an overmatch for it; and
the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions,
neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil,
and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights.
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The army under such circumstances may usefully aid the magistrate to suppress a small faction, or an
occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of
be found in any constitution that has been heretofore framed in America, most of which contain no guard
at all on this subject.
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the great body of the people. In a country in the predicament last described, the contrary of all this
happens. The perpetual menacings of danger oblige the government to be always prepared to repel it; its
armies must be numerous enough for instant defense. The continual necessity for their services enhances
the importance of the soldier, and proportionably degrades the condition of the citizen. The military state
becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably
subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and
by degrees the people are brought to consider the soldiery not only as their protectors, but as their
superiors. The transition from this disposition to that of considering them masters, is neither remote nor
difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual
resistance to usurpations supported by the military power.
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The kingdom of Great Britain falls within the first description. An insular situation, and a powerful marine,
guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a
numerous army within the kingdom. A sufficient force to make head against a sudden descent, till the
militia could have time to rally and embody, is all that has been deemed requisite. No motive of national
policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its domestic
establishment. There has been, for a long time past, little room for the operation of the other causes, which
have been enumerated as the consequences of internal war. This peculiar felicity of situation has, in a great
degree, contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent
venality and corruption. If, on the contrary, Britain had been situated on the continent, and had been
compelled, as she would have been, by that situation, to make her military establishments at home
coextensive with those of the other great powers of Europe, she, like them, would in all probability be, at
this day, a victim to the absolute power of a single man. It is possible, though not easy, that the people of
that island may be enslaved from other causes; but it cannot be by the prowess of an army so
inconsiderable as that which has been usually kept up within the kingdom. If we are wise enough to
preserve the Union we may for ages enjoy an advantage similar to that of an insulated situation. Europe is
at a great distance from us. Her colonies in our vicinity will be likely to continue too much disproportioned
in strength to be able to give us any dangerous annoyance. Extensive military establishments cannot, in this
position, be necessary to our security. But if we should be disunited, and the integral parts should either
remain separated, or, which is most probable, should be thrown together into two or three confederacies,
we should be, in a short course of time, in the predicament of the continental powers of Europe—our
liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each
other.
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This is an idea not superficial or futile, but solid and weighty. It deserves the most serious and mature
consideration of every prudent and honest man of whatever party. If such men will make a firm and solemn
pause, and meditate dispassionately on the importance of this interesting idea; if they will contemplate it in
all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a
Constitution, the rejection of which would in all probability put a final period to the Union. The airy
phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place
to the more substantial forms of dangers, real, certain, and formidable.
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FED9: THE UNION AS A SAFEGUARD AGAINST DOMESTIC FACTION AND INSURRECTION
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HAMILTON
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A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against
domestic faction and insurrection. It is impossible to read the history of the petty republics of Greece and
Italy without feeling sensations of horror and disgust at the distractions with which they were continually
agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual
vibration between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve
as short-lived contrast to the furious storms that are to succeed. If now and then intervals of felicity open to
view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before
us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. If momentary rays of
glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the
same time admonish us to lament that the vices of government should pervert the direction and tarnish the
lustre of those bright talents and exalted endowments for which the favored soils that produced them have
been so justly celebrated.
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From the disorders that disfigure the annals of those republics the advocates of despotism have drawn
arguments, not only against the forms of republican government, but against the very principles of civil
liberty. They have decried all free government as inconsistent with the order of society, and have indulged
themselves in malicious exultation over its friends and partisans. Happily for mankind, stupendous fabrics
reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their
gloomy sophisms. And, I trust, America will be the broad and solid foundation of other edifices, not less
magnificent, which will be equally permanent monuments of their errors.
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But it is not to be denied that the portraits they have sketched of republican government were too just
copies of the originals from which they were taken. If it had been found impracticable to have devised
models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon
the cause of that species of government as indefensible. The science of politics, however, like most other
sciences, has received great improvement. The efficacy of various principles is now well understood, which
were either not known at all, or imperfectly known to the ancients. The regular distribution of power into
distinct departments; the introduction of legislative balances and checks; the institution of courts
composed of judges holding their offices during good behavior; the representation of the people in the
legislature by deputies of their own election: these are wholly new discoveries, or have made their principal
progress towards perfection in modern times. They are means, and powerful means, by which the
excellences of republican government may be retained and its imperfections lessened or avoided. To this
catalogue of circumstances that tend to the amelioration of popular systems of civil government, I shall
venture, however novel it may appear to some, to add one more, on a principle which has been made the
foundation of an objection to the new Constitution; I mean the ENLARGEMENT of the ORBIT within which
such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of
several smaller States into one great Confederacy. The latter is that which immediately concerns the object
under consideration. It will, however, be of use to examine the principle in its application to a single State,
which shall be attended to in another place.
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The utility of a Confederacy, as well to suppress faction and to guard the internal tranquillity of States, as to
increase their external force and security, is in reality not a new idea. It has been practiced upon in different
countries and ages, and has received the sanction of the most approved writers on the subject of politics.
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The opponents of the plan proposed have, with great assiduity, cited and circulated the observations of
Montesquieu on the necessity of a contracted territory for a republican government. But they seem not to
have been apprised of the sentiments of that great man expressed in another part of his work, nor to have
adverted to the consequences of the principle to which they subscribe with such ready acquiescence.
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When Montesquieu recommends a small extent for republics, the standards he had in view were of
dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts,
Pennsylvania, New York, North Carolina, nor Georgia can by any means be compared with the models from
which he reasoned and to which the terms of his description apply. If we therefore take his ideas on this
point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the
arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous
commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity
or contempt. Some of the writers who have come forward on the other side of the question seem to have
been aware of the dilemma; and have even been bold enough to hint at the division of the larger States as a
desirable thing. Such an infatuated policy, such a desperate expedient, might, by the multiplication of petty
offices, answer the views of men who possess not qualifications to extend their influence beyond the
narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of
America. Referring the examination of the principle itself to another place, as has been already mentioned,
it will be sufficient to remark here that, in the sense of the author who has been most emphatically quoted
upon the occasion, it would only dictate a reduction of the SIZE of the more considerable MEMBERS of the
Union, but would not militate against their being all comprehended in one confederate government. And
this is the true question, in the discussion of which we are at present interested. So far are the suggestions
of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats of a
confederate republic as the expedient for extending the sphere of popular government, and reconciling the
advantages of monarchy with those of republicanism.
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"It is very probable," (says he ) "that mankind would have been obliged at length to live constantly under
the government of a single person, had they not contrived a kind of constitution that has all the internal
advantages of a republican, together with the external force of a monarchical government. I mean a
CONFEDERATE REPUBLIC."
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"This form of government is a convention by which several smaller STATES agree to become members of a
larger ONE, which they intend to form. It is a kind of assemblage of societies that constitute a new one,
capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able
to provide for the security of the united body."
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"A republic of this kind, able to withstand an external force, may support itself without any internal
corruptions. The form of this society prevents all manner of inconveniences."
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"If a single member should attempt to usurp the supreme authority, he could not be supposed to have an
equal authority and credit in all the confederate states. Were he to have too great influence over one, this
would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with
forces independent of those which he had usurped and overpower him before he could be settled in his
usurpation."
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"Should a popular insurrection happen in one of the confederate states the others are able to quell it.
Should abuses creep into one part, they are reformed by those that remain sound. The state may be
destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates
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"Spirit of Laws," vol. i., book ix., chap. i.
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preserve their sovereignty." "As this government is composed of small republics, it enjoys the internal
happiness of each; and with respect to its external situation, it is possessed, by means of the association, of
all the advantages of large monarchies."
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I have thought it proper to quote at length these interesting passages, because they contain a luminous
abridgment of the principal arguments in favor of the Union, and must effectually remove the false
impressions which a misapplication of other parts of the work was calculated to make. They have, at the
same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the
tendency of the Union to repress domestic faction and insurrection.
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A distinction, more subtle than accurate, has been raised between a CONFEDERACY and a CONSOLIDATION
of the States. The essential characteristic of the first is said to be, the restriction of its authority to the
members in their collective capacities, without reaching to the individuals of whom they are composed. It is
contended that the national council ought to have no concern with any object of internal administration. An
exact equality of suffrage between the members has also been insisted upon as a leading feature of a
confederate government. These positions are, in the main, arbitrary; they are supported neither by
principle nor precedent. It has indeed happened, that governments of this kind have generally operated in
the manner which the distinction taken notice of, supposes to be inherent in their nature; but there have
been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go,
that there is no absolute rule on the subject. And it will be clearly shown in the course of this investigation
that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and
imbecility in the government.
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The definition of a CONFEDERATE REPUBLIC seems simply to be "an assemblage of societies," or an
association of two or more states into one state. The extent, modifications, and objects of the federal
authority are mere matters of discretion. So long as the separate organization of the members be not
abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in
perfect subordination to the general authority of the union, it would still be, in fact and in theory, an
association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the
State governments, makes them constituent parts of the national sovereignty, by allowing them a direct
representation in the Senate, and leaves in their possession certain exclusive and very important portions of
sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal
government.
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In the Lycian confederacy, which consisted of twenty-three CITIES or republics, the largest were entitled to
THREE votes in the COMMON COUNCIL, those of the middle class to TWO, and the smallest to ONE. The
COMMON COUNCIL had the appointment of all the judges and magistrates of the respective CITIES. This
was certainly the most, delicate species of interference in their internal administration; for if there be any
thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own
officers. Yet Montesquieu, speaking of this association, says: "Were I to give a model of an excellent
Confederate Republic, it would be that of Lycia." Thus we perceive that the distinctions insisted upon were
not within the contemplation of this enlightened civilian; and we shall be led to conclude, that they are the
novel refinements of an erroneous theory.
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Page 48
FED10: THE SAME SUBJECT CONTINUED (THE UNION AS A SAFEGUARD AGAINST DOMESTIC FACTION AND
INSURRECTION)
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From the Daily Advertiser. Thursday, November 22, 1787.
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MADISON
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AMONG the numerous advantages promised by a well constructed Union, none deserves to be more
accurately developed than its tendency to break and control the violence of faction. The friend of popular
governments never finds himself so much alarmed for their character and fate, as when he contemplates
their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which,
without violating the principles to which he is attached, provides a proper cure for it. The instability,
injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under
which popular governments have everywhere perished; as they continue to be the favorite and fruitful
topics from which the adversaries to liberty derive their most specious declamations. The valuable
improvements made by the American constitutions on the popular models, both ancient and modern,
cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they
have as effectually obviated the danger on this side, as was wished and expected. Complaints are
everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private
faith, and of public and personal liberty, that our governments are too unstable, that the public good is
disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the
rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing
majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known
facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid
review of our situation, that some of the distresses under which we labor have been erroneously charged
on the operation of our governments; but it will be found, at the same time, that other causes will not
alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing
distrust of public engagements, and alarm for private rights, which are echoed from one end of the
continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with
which a factious spirit has tainted our public administrations.
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By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the
whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the
rights of other citizens, or to the permanent and aggregate interests of the community.
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There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by
controlling its effects.
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There are again two methods of removing the causes of faction: the one, by destroying the liberty which is
essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the
same interests.
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It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to
faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to
abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the
annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. The
second expedient is as impracticable as the first would be unwise. As long as the reason of man continues
fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection
subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence
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on each other; and the former will be objects to which the latter will attach themselves. The diversity in the
faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a
uniformity of interests. The protection of these faculties is the first object of government. From the
protection of different and unequal faculties of acquiring property, the possession of different degrees and
kinds of property immediately results; and from the influence of these on the sentiments and views of the
respective proprietors, ensues a division of the society into different interests and parties.
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The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into
different degrees of activity, according to the different circumstances of civil society. A zeal for different
opinions concerning religion, concerning government, and many other points, as well of speculation as of
practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to
persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn,
divided mankind into parties, inflamed them with mutual animosity, and rendered them much more
disposed to vex and oppress each other than to co-operate for their common good. So strong is this
propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself,
the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and
excite their most violent conflicts. But the most common and durable source of factions has been the
various and unequal distribution of property. Those who hold and those who are without property have
ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a
like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest,
with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes,
actuated by different sentiments and views. The regulation of these various and interfering interests forms
the principal task of modern legislation, and involves the spirit of party and faction in the necessary and
ordinary operations of the government.
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No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment,
and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to
be both judges and parties at the same time; yet what are many of the most important acts of legislation,
but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the
rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties
to the causes which they determine? Is a law proposed concerning private debts? It is a question to which
the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance
between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or,
in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be
encouraged, and in what degree, by restrictions on foreign manufactures? Are questions which would be
differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard
to justice and the public good. The apportionment of taxes on the various descriptions of property is an act
which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater
opportunity and temptation are given to a predominant party to trample on the rules of justice. Every
shilling with which they overburden the inferior number, is a shilling saved to their own pockets.
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It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render
them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many
cases, can such an adjustment be made at all without taking into view indirect and remote considerations,
which will rarely prevail over the immediate interest which one party may find in disregarding the rights of
another or the good of the whole.
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The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is
only to be sought in the means of controlling its EFFECTS. If a faction consists of less than a majority, relief is
supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.
It may clog the administration, it may convulse the society; but it will be unable to execute and mask its
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violence under the forms of the Constitution. When a majority is included in a faction, the form of popular
government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good
and the rights of other citizens. To secure the public good and private rights against the danger of such a
faction, and at the same time to preserve the spirit and the form of popular government, is then the great
object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of
government can be rescued from the opprobrium under which it has so long labored, and be recommended
to the esteem and adoption of mankind.
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By what means is this object attainable? Evidently by one of two only. Either the existence of the same
passion or interest in a majority at the same time must be prevented, or the majority, having such
coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and
carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well
know that neither moral nor religious motives can be relied on as an adequate control. They are not found
to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number
combined together, that is, in proportion as their efficacy becomes needful.
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From this view of the subject it may be concluded that a pure democracy, by which I mean a society
consisting of a small number of citizens, who assemble and administer the government in person, can admit
of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a
majority of the whole; a communication and concert result from the form of government itself; and there is
nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that
such democracies have ever been spectacles of turbulence and contention; have ever been found
incompatible with personal security or the rights of property; and have in general been as short in their
lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of
government, have erroneously supposed that by reducing mankind to a perfect equality in their political
rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their
opinions, and their passions. A republic, by which I mean a government in which the scheme of
representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let
us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of
the cure and the efficacy which it must derive from the Union.
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The two great points of difference between a democracy and a republic are: first, the delegation of the
government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of
citizens, and greater sphere of country, over which the latter may be extended. The effect of the first
difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium
of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose
patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under
such a regulation, it may well happen that the public voice, pronounced by the representatives of the
people, will be more consonant to the public good than if pronounced by the people themselves, convened
for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local
prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the
suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive
republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided
in favor of the latter by two obvious considerations:
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In the first place, it is to be remarked that, however small the republic may be, the representatives must be
raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be,
they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the
number of representatives in the two cases not being in proportion to that of the two constituents, and
being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not
less in the large than in the small republic, the former will present a greater option, and consequently a
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greater probability of a fit choice. In the next place, as each representative will be chosen by a greater
number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to
practice with success the vicious arts by which elections are too often carried; and the suffrages of the
people being more free, will be more likely to centre in men who possess the most attractive merit and the
most diffusive and established characters.
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It must be confessed that in this, as in most other cases, there is a mean, on both sides of which
inconveniences will be found to lie. By enlarging too much the number of electors, you render the
representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it
too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and
national objects. The federal Constitution forms a happy combination in this respect; the great and
aggregate interests being referred to the national, the local and particular to the State legislatures.
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The other point of difference is, the greater number of citizens and extent of territory which may be
brought within the compass of republican than of democratic government; and it is this circumstance
principally which renders factious combinations less to be dreaded in the former than in the latter. The
smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the
distinct parties and interests, the more frequently will a majority be found of the same party; and the
smaller the number of individuals composing a majority, and the smaller the compass within which they are
placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you
take in a greater variety of parties and interests; you make it less probable that a majority of the whole will
have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be
more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides
other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable
purposes, communication is always checked by distrust in proportion to the number whose concurrence is
necessary.
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Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling
the effects of faction, is enjoyed by a large over a small republic,—is enjoyed by the Union over the States
composing it. Does the advantage consist in the substitution of representatives whose enlightened views
and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be
denied that the representation of the Union will be most likely to possess these requisite endowments.
Does it consist in the greater security afforded by a greater variety of parties, against the event of any one
party being able to outnumber and oppress the rest? In an equal degree does the increased variety of
parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles
opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority?
Here, again, the extent of the Union gives it the most palpable advantage.
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The influence of factious leaders may kindle a flame within their particular States, but will be unable to
spread a general conflagration through the other States. A religious sect may degenerate into a political
faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure
the national councils against any danger from that source. A rage for paper money, for an abolition of
debts, for an equal division of property, or for any other improper or wicked project, will be less apt to
pervade the whole body of the Union than a particular member of it; in the same proportion as such a
malady is more likely to taint a particular county or district, than an entire State.
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In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases
most incident to republican government. And according to the degree of pleasure and pride we feel in
being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.
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Page 52
AFED6: THE HOBGOBLINS OF ANARCHY AND DISSENSIONS AMONG THE STATES
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One of largest series of Antifederalist essays was penned under the pseudonym "CENTINEL." The
Philadelphia Independent Gazetteer ran this 24 essay series between October 5, 1787 and November 24,
1788.
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Some historians feel most of the "Centinel" letters were written by Samuel Bryan, and a few by Eleazer
Oswald, owner of the Independent Gazetteer. A more recent study by Charles Page Smith, James Wilson,
Founding Father (Chapel Hill, 1956), refrains from making such theory
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This selection is from the eleventh letter of "Centinel," appearing in the Independent Gazetteer on January
16, 1788.
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The evils of anarchy have been portrayed with all the imagery of language in the growing colors of
eloquence; the affrighted mind is thence led to clasp the new Constitution as the instrument of deliverance,
as the only avenue to safety and happiness. To avoid the possible and transitory evils of one extreme, it is
seduced into the certain and permanent misery necessarily attendant on the other. A state of anarchy from
its very nature can never be of long continuance; the greater its violence the shorter the duration. Order
and security are immediately sought by the distracted people beneath the shelter of equal laws and the
salutary restraints of regular government; and if this be not attainable, absolute power is assumed by the
one, or a few, who shall be the most enterprising and successful. If anarchy, therefore, were the inevitable
consequence of rejecting the new Constitution, it would be infinitely better to incur it, for even then there
would be at least the chance of a good government rising out of licentiousness. But to rush at once into
despotism because there is a bare possibility of anarchy ensuing from the rejection, or from what is yet
more visionary, the small delay that would be occasioned by a revision and correction of the proposed
system of government is so superlatively weak, so fatally blind, that it is astonishing any person of common
understanding should suffer such an imposition to have the least influence on his judgment; still more
astonishing that so flimsy and deceptive a doctrine should make converts among the enlightened freemen
of America, who have so long enjoyed the blessings of liberty. But when I view among such converts men
otherwise pre-eminent it raises a blush for the weakness of humanity that these, her brightest ornaments,
should be so dimsighted to what is self-evident to most men, that such imbecility of judgment should
appear where so much perfection was looked for. This ought to teach us to depend more on our own
judgment and the nature of the case than upon the opinions of the greatest and best of men, who, from
constitutional infirmities or particular situations, may sometimes view an object through a delusive
medium; but the opinions of great men are more frequently the dictates of ambition or private interest.
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The source of the apprehensions of this so much dreaded anarchy would upon investigation be found to
arise from the artful suggestions of designing men, and not from a rational probability grounded on the
actual state of affairs. The least reflection is sufficient to detect the fallacy to show that there is no one
circumstance to justify the prediction of such an event. On the contrary a short time will evince, to the utter
dismay and confusion of the conspirators, that a perseverance in cramming down their scheme of power
upon the freemen of this State [Pennsylvania] will inevitably produce an anarchy destructive of their darling
domination, and may kindle a flame prejudicial to their safety. They should be cautious not to trespass too
far on the forbearance of freemen when wresting their dearest concerns, but prudently retreat from the
gathering storm.
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The other specter that has been raised to terrify and alarm the people out of the exercise of their judgment
on this great occasion, is the dread of our splitting into separate confederacies or republics, that might
become rival powers and consequently liable to mutual wars from the usual motives of contention. This is
an event still more improbable than the foregoing. It is a presumption unwarranted, either by the situation
of affairs, or the sentiments of the people; no disposition leading to it exists; the advocates of the new
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constitution seem to view such a separation with horror, and its opponents are strenuously contending for
a confederation that shall embrace all America under its comprehensive and salutary protection. This
hobgoblin appears to have sprung from the deranged brain of Publius, [The Federalist] a New York writer,
who, mistaking sound for argument, has with Herculean labor accumulated myriads of unmeaning
sentences, and mechanically endeavored to force conviction by a torrent of misplaced words. He might
have spared his readers the fatigue of wading through his long-winded disquisitions on the direful effects of
the contentions of inimical states, as totally inapplicable to the subject he was professedly treating; this
writer has devoted much time, and wasted more paper in combating chimeras of his own creation.
However, for the sake of argument, I will admit that the necessary consequence of rejecting or delaying the
establishment of the new constitution would be the dissolution of the union, and the institution of even
rival and inimical republics; yet ought such an apprehension, if well founded, to drive us into the fangs of
despotism? Infinitely preferable would be occasional wars to such an event. The former, although a severe
scourge, is transient in its continuance, and in its operation partial, but a small proportion of the community
are exposed to its greatest horrors, and yet fewer experience its greatest evils; the latter is permanent and
universal misery, without remission or exemption. As passing clouds obscure for a time the splendor of the
sun, so do wars interrupt the welfare of mankind; but despotism is a settled gloom that totally extinguishes
happiness. Not a ray of comfort can penetrate to cheer the dejected mind; the goad of power with
unabating rigor insists upon the utmost exaction; like a merciless taskmaster, [it] is continually inflicting the
lash, and is never satiated with the feast of unfeeling domination, or the most abject servility.
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The celebrated Lord Kaims, whose disquisitions of human nature evidence extraordinary strength of
judgment and depth of investigation, says that a continual civil war, which is the most destructive and
horrible scene of human discord, is preferable to the uniformity of wretchedness and misery attendant
upon despotism; of all possible evils, as I observed in my first number, this is the worst and the most to be
dreaded. I congratulate my fellow citizens that a good government, the greatest earthly blessing, may be so
easily obtained, that our circumstances are so favorable, that nothing but the folly of the conspirators can
produce anarchy or civil war, which would presently terminate in their destruction and the permanent
harmony of the state, alone interrupted by their ambitious machinations.
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CENTINEL
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AFED7: ADOPTION OF THE CONSTITUTION WILL LEAD TO CIVIL WAR
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"PHILANTHROPOS," (an anonymous Virginia Antifederalist) appeared in The Virginia Journal and Alexandria
Advertiser, December 6, 1787, writing his version of history under the proposed new Constitution.
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The time in which the constitution or government of a nation undergoes any particular change, is always
interesting and critical. Enemies are vigilant, allies are in suspense, friends hesitating between hope and
fear; and all men are in eager expectation to see what such a change may produce. But the state of our
affairs at present, is of such moment, as even to arouse the dead ...
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[A certain defender of the Constitution has stated that objections to it] are more calculated to alarm the
fears of the people than to answer any valuable end. Was that the case, as it is not, will any man in his
sober senses say, that the least infringement or appearance of infringement on our liberty -that liberty
which has lately cost so much blood and treasure, together with anxious days and sleepless nights-ought
not both to rouse our fears and awaken our jealousy? ... The new constitution in its present form is
calculated to produce despotism, thraldom and confusion, and if the United States do swallow it, they will
find it a bolus, that will create convulsions to their utmost extremities. Were they mine enemies, the worst
imprecation I could devise would be, may they adopt it. For tyranny, where it has been chained (as for a few
years past) is always more cursed, and sticks its teeth in deeper than before. Were Col. [George] Mason's
objections obviated, the improvement would be very considerable, though even then, not so complete as
might be. The Congress's having power without control-to borrow money on the credit of the United States;
their having power to appoint their own salaries, and their being paid out of the treasury of the United
States, thereby, in some measure, rendering them independent of the individual states; their being judges
of the qualification and election of their own members, by which means they can get men to suit any
purpose; together with Col. Mason's wise and judicious objections-are grievances, the very idea of which is
enough to make every honest citizen exclaim in the language of Cato, 0 Liberty, 0 my country! Our present
constitution, with a few additional powers to Congress, seems better calculated to preserve the rights and
defend the liberties of our citizens, than the one proposed, without proper amendments. Let us therefore,
for once, show our judgment and solidity by continuing it, and prove the opinion to be erroneous, that
levity and fickleness are not only the foibles of our tempers, but the reigning principles in these states.
There are men amongst us, of such dissatisfied tempers, that place them in Heaven, they would find
something to blame; and so restless and self- sufficient, that they must be eternally reforming the state. But
the misfortune is, they always leave affairs worse than they find them. A change of government is at all
times dangerous, but at present may be fatal, without the utmost caution, just after emerging out of a
tedious and expensive war. Feeble in our nature, and complicated in our form, we are little able to bear the
rough Posting of civil dissensions which are likely to ensue. Even now, discontent and opposition distract
our councils. Division and despondency affect our people. Is it then a time to alter our government, that
government which even now totters on its foundation, and will, without tender care, produce ruin by its
fall?
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Beware my countrymen! Our enemies- -uncontrolled as they are in their ambitious schemes, fretted with
losses, and perplexed with disappointments-will exert their whole power and policy to increase and
continue our confusion. And while we are destroying one another, they will be repairing their losses, and
ruining our trade.
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Of all the plagues that infest a nation, a civil war is the worst. Famine is severe, pestilence is dreadful; but in
these, though men die, they die in peace. The father expires without the guilt of the son; and the son, if he
survives, enjoys the inheritance of his father. Cities may be thinned, but they neither plundered nor burnt.
But when a civil war is kindled, there is then forth no security of property nor protection from any law. Life
and fortune become precarious. And all that is dear to men is at the discretion of profligate soldiery, doubly
licentious on such an occasion. Cities are exhausted by heavy contributions, or sacked because they cannot
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answer exorbitant demand. Countries are eaten up by the parties they favor, and ravaged by the one they
oppose. Fathers and sons, sheath their swords in anothers bowels in the field, and their wives and
daughters are exposed to rudeness and lust of ruffians at home. And when the sword has decided quarrel,
the scene is closed with banishments, forfeitures, and barbarous executions that entail distress on children
then unborn.
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May Heaven avert the dreadful catastrophe! In the most limited governments, what wranglings,
animosities, factions, partiality, and all other evils that tend to embroil a nation and weaken a state, are
constantly practised by legislators. What then may we expect if the new constitution be adopted as it now
stands? The great will struggle for power, honor and wealth; the poor become a prey to avarice, insolence
and oppression. And while some are studying to supplant their neighbors, and others striving to keep their
stations, one villain will wink at the oppression of another, the people be fleeced, and the public business
neglected. From despotism and tyranny good Lord deliver us.
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AFED8: "THE POWER VESTED IN CONGRESS OF SENDING TROOPS FOR SUPPRESSING INSURRECTIONS
WILL ALWAYS ENABLE THEM TO STIFLE THE FIRST STRUGGLES OF FREEDOM"
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"A FEDERAL REPUBLICAN" (from Virginia) had his `letter to the editor' appear in The Norfolk and
Portsmouth Register March 5, 1788.
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.... By the Articles of Confederation, the congress of the United State was vested with powers for
conducting the common concerns of the continent. They had the sole and exclusive right and power of
determining on peace and war; of sending and receiving ambassadors; of entering into treaties and
alliances; and of pointing out the respective quotas of men and men which each state should furnish. But it
was expressly provided that the money to be supplied by each state should be raised by the authority and
direction of the legislature thereof-- thus reserving to the states the important privilege of levying taxes
upon their citizens in such manner as might be most conformable to their peculiar circumstances and form
of government. With powers thus constituted was congress enabled to unite the general exertions of the
continent in the cause of liberty and to carry us triumphantly through a long and bloody war. It was not
until sometime after peace and a glorious independence had been established that defects were discovered
in that system of federal government which had procured to us those blessings. It was then perceived that
the Articles of Confederation were inadequate to the purposes of the union; and it was particularly
suggested as necessary to vest in congress the further power of exclusively regulating the commerce of the
United States, as well to enable us, by a system more uniform, to counteract the policy of foreign nations,
as for other important reasons. Upon this principle, a general convention of the United States was proposed
to be held, and deputies were accordingly appointed by twelve of the states charged with power to revise,
alter, and amend the Articles of Confederation. When these deputies met, instead of confining themselves
to the powers with which they were entrusted, they pronounced all amendments to the Articles of
Confederation wholly impracticable; and with a spirit of amity and concession truly remarkable proceeded
to form a government entirely new, and totally different in its principles and its organization. Instead of a
congress whose members could serve but three years out of six-and then to return to a level with their
fellow citizens; and who were liable at all times, whenever the states might deem it necessary, to be
recalled-- Congress, by this new constitution, will be composed of a body whose members during the time
they are appointed to serve, can receive no check from their constituents. Instead of the powers formerly
granted to congress of ascertaining each state's quota of men and money-to be raised by the legislatures of
the different states in such a mode as they might think proper- -congress, by this new government, will be
invested with the formidable powers of raising armies, and lending money, totally independent of the
different states. They will moreover, have the power of leading troops among you in order to suppress
those struggles which may sometimes happen among a free people, and which tyranny will impiously brand
with the name of sedition. On one day the state collector will call on you for your proportion of those taxes
which have been laid on you by the general assembly, where you are fully and adequately represented; on
the next will come the Continental collector to demand from you those taxes which shall be levied by the
continental congress, where the whole state of Virginia will be represented by only ten men! Thus shall we
imprudently confer on so small a number the very important power of taking our money out of our pockets,
and of levying taxes without control-a right which the wisdom of our state constitution will, in vain, have
confided to the most numerous branch of the legislature. Should the sheriff or state collector in any manner
aggrieve you either in person or property, these rights are amply secured by the most solemn compact.
Beside, the arm of government is always at hand to shield you from his injustice and oppression. But if a
Continental collector, in the execution of his office, should invade your freedom (according to this new
government, which has expressly declared itself paramount to all state laws and constitutions) the state of
which you are a citizen will have no authority to afford you relief. A continental court may, indeed, be
established in the state, and it may be urged that you will find a remedy here; but, my fellow citizens, let me
ask, what protection this will afford you against the insults or rapacity of a continental officer, when he will
have it in his power to appeal to the seat of congress perhaps at several hundred miles distance, and by this
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means oblige you to expend hundreds of pounds in obtaining redress for twenty shillings unjustly extorted?
Thus will you be necessarily compelled either to make a bold effort to extricate yourselves from these
grievous and oppressive extortions, or you will be fatigued by fruitless attempts into the quiet and
peaceable surrender of those rights, for which the blood of your fellow citizens has been shed in vain. But
the latter will, no doubt, be the melancholy fate of a people once inspired with the love of liberty, as the
power vested in congress of sending troops for suppressing insurrections will always enable them to stifle
the first struggles of freedom.
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A FEDERAL REPUBLICAN
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AFED10: ON THE PRESERVATION OF PARTIES, PUBLIC LIBERTY DEPENDS
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This essay follows a theme similar to Federalist No. 10, and appeared in the Maryland Gazette and
Baltimore Advertiser, March 18, 1788.
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The opposite qualities of the first confederation were rather caused by than the cause of two parties, which
from its first existence began and have continued their operations, I believe, unknown to their country and
almost unknown to themselves-as really but few men have the capacity or resolution to develop the secret
causes which influence their daily conduct. The old Congress was a national government and an union of
States, both brought into one political body, as these opposite powers-I do not mean parties were so
exactly blended and very nearly balanced, like every artificial, operative machine where action is equal to
reaction. It stood perfectly still. It would not move at all. Those who were merely confederal in their views,
were for dividing the public debt. Those who were for national government, were for increasing of it. Those
who thought any national government would be destructive to the liberties of America . . . assisted those
who thought it our only safety-to put everything as wrong as possible. Requisitions were made, which every
body knew it was impossible to comply with. Either in 82 or 83, ten millions of hard dollars, if not thirteen,
were called into the continental treasury, when there could not be half that sum in the whole tract of
territory between Nova-Scotia and Florida. The States neglected them in despair. The public honor was
tarnished, and our governments abused by their servants and best friends. In fine, it became a cant word
things are not yet bad enough to mend. However, as [a] great part of the important objects of society were
entrusted to this mongrel species of general government, the sentiment of pushing it forward became
general throughout America, and the late Convention met at Philadelphia under the uniform impression,
that such was the desire of their constituents. But even then the advantages and disadvantages of national
government operated so strongly, although silently, on each individual, that the conflict was nearly equal. A
third or middle opinion, which always arises in such cases, broke off and took the lead-the national party
[thus] assisted, pursued steadily their object- the federal party dropped off, one by one, and finally, when
the middle party came to view the offspring which they had given birth to, and in a great measure reared,
several of them immediately disowned the child. Such has been hitherto the progress of party; or rather of
the human mind dispassionately contemplating our separate and relative situation, and aiming at that
perfect completion of social happiness and grandeur, which perhaps can be combined only in ideas. Every
description of men entertain the same wishes (excepting perhaps a few very bad men of each)-they forever
will differ about the mode of accomplishment-and some must be permitted to doubt the practicability.
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As our citizens are now apprized of the progress of parties or political opinions on the continent, it is fit they
should also be informed of the present state, force and designs of each, in order that they may form their
decisions with safety to the public and themselves-this shall be given with all the precision and impartiality
the author is capable of.
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America is at present divided into three classes or descriptions of men, and in a few years there will be but
two.
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[First]. The first class comprehends all those men of fortune and reputation who stepped forward in the late
revolution, from opposition to the administration, rather than the government of Great Britain. All those
aristocrats whose pride disdains equal law. Many men of very large fortune, who entertain real or
imaginary fears for the security of property. Those young men, who have sacrificed their time and their
talents to public service, without any prospect of an adequate pecuniary or honorary reward. All your
people of fashion and pleasure who are corrupted by the dissipation of the French, English and American
armies; and a love of European manners and luxury. The public creditors of the continent, whose interest
has been heretofore sacrificed by their friends, in order to retain their services on this occasion. A large
majority of the mercantile people, which is at present a very unformed and consequently dangerous
interest. Our old native merchants have been almost universally ruined by the receipt of their debts in
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paper during the war, and the payment in hard money of what they owed their British correspondents since
peace. Those who are not bankrupts, have generally retired and given place to a set of young men, who
conducting themselves as rashly as ignorantly, have embarrassed their affairs and lay the blame on the
government, and who are really unacquainted with the true mercantile interest of the country-which is
perplexed from circumstances rather temporary than permanent. The foreign merchants are generally not
to be trusted with influence in our government-- they are most of them birds of passage. Some, perhaps
British emissaries increasing and rejoicing in our political mistakes, and even those who have settled among
us with an intention to fix themselves and their posterity in our soil, have brought with them more foreign
prejudices than wealth. Time must elapse before the mercantile interest will be so organized as to govern
themselves, much less others, with propriety. And lastly, to this class I suppose we may ultimately add the
tory interest, with the exception of very many respectable characters, who reflect with a gratification mixed
with disdain, that those principles are now become fashionable for which they have been persecuted and
hunted down-which, although by no means so formidable as is generally imagined, is still considerable.
They are at present wavering. They are generally, though with very many exceptions, openly for the
proposed, but secretly against any American government. A burnt child dreads the fire. But should they see
any fair prospect of confusion arise, these gentry will be off at any moment for these five and twenty years
to come. Ultimately, should the administration promise stability to the new government, they may be
counted on as the Janizaries of power, ready to efface all suspicion by the violence of their zeal.
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In general, all these various people would prefer a government, as nearly copied after that of Great Britain,
as our circumstances will permit. Some would strain these circumstances. Others still retain a deep rooted
jealousy of the executive branch and strong republican prejudices as they are called. Finally, this class
contains more aggregate wisdom and moral virtue than both the other two together. It commands nearly
two thirds of the property and almost one half the numbers of America, and has at present, become almost
irresistible from the name of the truly great and amiable man who it has been said, is disposed to patronize
it, and from the influence which it has over the second class. This [first] class is nearly at the height of their
power; they must decline or moderate, or another revolution will ensue, for the opinion of America is
becoming daily more unfavorable to those radical changes which high-toned government requires. A
conflict would terminate in the destruction of this class, or the liberties of their country. May the Guardian
Angel of America prevent both!
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[Second]. The second class is composed of those descriptions of men who are certainly more numerous
with us than in any other part of the globe. First, those men who are so wise as to discover that their
ancestors and indeed all the rest of mankind were and are fools. We have a vast overproportion of these
great men, who, when you tell them that from the earliest period at which mankind devoted their attention
to social happiness, it has been their uniform judgment, that a government over governments cannot exist-that is two governments operating on the same individual-assume the smile of confidence, and tell you of
two people travelling the same road-of a perfect and precise division of the duties of the individual. Still,
however, the political apothegm is as old as the proverb-That no man can serve two masters-and whoever
will run their noddles against old proverbs will be sure to break them, however hard they may be. And if
they broke only their own, all would be right; but it is very horrible to reflect that all our numskulls must be
cracked in concert. Second. The trimmers, who from sympathetic indecision are always united with, and
when not regularly employed, always fight under the banners of these great men, These people are forever
at market, and when parties are nearly equally divided, they get very well paid for their services. Thirdly.
The indolent, that is almost every second man of independent fortune you meet with in America-these are
quite easy, and can live under any government. If men can be said to live, who scarcely breathe; and if
breathing was attended with any bodily exertion, would give up their small portion of life in despair. These
men do not swim with the stream as the trimmers do, but are dragged like mud at the bottom. As they
have no other weight than their tat flesh, they are hardly worth mentioning when we speak of the
sentiments and opinions of America. As this second class never can include any of the yeomanry of the
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union, who never affect superior wisdom, and can have no interests but the public good, it can be only said
to exist at the birth of government, and as soon as the first and third classes become more decided in their
views, this will divide with each and dissipate like a mist, or sink down into what are called moderate men,
and become the tools and instruments of others. These people are prevented by a cloud from having any
view; and if they are not virtuous, they at least preserve the appearance, which in this world amounts to
the same thing.
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[Third]. At the head of the third class appear the old rigid republicans, who although few in number, are still
formidable. Reverence will follow these men in spite of detraction, as long as wisdom and virtue are
esteemed among mankind. They are joined by the true democrats, who are in general fanatics and
enthusiasts, and some few sensible, charming madmen. A decided majority of the yeomanry of America
will, for a length of years, be ready to support these two descriptions of men. But as this last class is forced
to act as a residuary legatee, and receive all the trash and filth, it is in some measure disgraced and its
influence weakened. 3dly. The freebooters and plunderers, who infest all countries and ours perhaps as
little as any other whatever. These men have that natural antipathy to any kind or sort of government, that
a rogue has to a halter. In number they are few indeed such characters are the offspring of dissipation and
want, and there is not that country in the world where so much real property is shared so equally among so
few citizens, for where property is as easily acquired by fair means, very few indeed will resort to foul.
Lastly, by the poor mob, infoelix pecus!l The property of whoever will feed them and take care of them-let
them be spared. Let the burden of taxation sit lightly on their shoulders. But alas! This is not their fate. It is
here that government forever falls with all its weight. It is here that the proposed government will press
where it should scarcely be felt. .
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In this [third] class may be counted men of the greatest mental powers and of as sublime virtue as any in
America. They at present command nearly one-third of the property and above half the numbers of the
United States, and in either event they must continue to increase in influence by great desertions from both
the other classes. . . . If the [proposed] government is not adopted, theirs will be the prevalent opinion. The
object of this class either is or will be purely federal-an union of independent States, not a government of
individuals. And should the proposed federal plan fail, from the obstinacy of those who will listen to no
conditional amendments, although such as they cannot disapprove; or should it ultimately in its execution
upon a fair trial, disappoint the wishes and expectations of our country-[then] an union purely federal is
what the reasonable and dispassionate patriots of America must bend their views to. My countrymen,
preserve your jealousy-reject suspicion, it is the fiend that destroys public and private happiness. I know
some weak, but very few if any wicked men in public confidence. And learn this most difficult and necessary
lesson: That on the preservation of parties, public liberty depends. Whenever men are unanimous on great
public questions, whenever there is but one party, freedom ceases and despotism commences. The object
of a free and wise people should be so to balance parties, that from the weakness of all you may be
governed by the moderation of the combined judgments of the whole, not tyrannized over by the blind
passions of a few individuals.
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COSTS OF THE NEW GOVERNMENT
AFED13: THE EXPENSE OF THE NEW GOVERNMENT
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Part 1: From The Feeeman's Oracle and New Hampshire Advertiser, January 11, 1788, by "A FARMER"
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Part 2: An unsigned essay from The Connecticut Journal, October 17, 1787.
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. . . . Great complaint has been made, that Congress [under the Articles] has been too liberal in their grants
of salaries to individuals, and I think not without just cause. For if I am rightly informed, there have been
men whose salaries have been fifteen hundred dollars per year, and some of them did not do business at
any rate, that the sum they negotiated would amount to their yearly salary. And some men [are] now in
office, at twenty five hundred dollars per year, who I think would have been glad to have set down at one
hundred pounds a year before the war, and would have done as much or more business. The truth is, when
you carry a man's salary beyond what decency requires, he immediately becomes a man of consequence,
and does little or no business at all. Let us cast our eyes around us, in the other departments-the judges of
the superior court have but about one hundred pounds salary a year. The judges of the courts of common
pleas, on an average, not more than sixty dollars per year. The ministers of the gospel-a very valuable set of
men, who have done honor to themselves, and rendered great service to their country, in completing the
revolution-have salaries but from sixty to an hundred pounds a year in general. The contrast is striking. I
heartily wish that all ranks of men among us, ministers of the gospel as well as others, would turn their
attention toward the Constitution they may be more concerned in the event than they at present think of.
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Rouse up, my friends, a matter of infinite importance is before you on the carpet, soon to be decided in
your convention: The New Constitution. Seize the happy moment. Secure to yourselves and your posterity
the jewel Liberty, which has cost you so much blood and treasure, by a well regulated Bill of Rights, from
the encroachments of men in power. For if Congress will do these things in the dry tree when their power is
small, what won't they do when they have all the resources of the United States at their command? They
are the servants of the public. You have an undoubted right to set their wages, or at least to say, thus far
you and those under you may go and no further. This would in the end ease Congress of a great deal of
trouble, as it would put a stop to the impertinence of individuals in asking large salaries. I would say that
the wages of a Representative in Congress do not exceed five dollars per day; a Senator not to exceed six;
and the President seven per day, with an allowance for his table. And that the wages of no person
employed in the United States exceed the daily pay of a Representative in Congress, but be paid according
to their service, not exceeding that sum. Perhaps it may be said that money may depreciate, or appreciate.
Let a price current be taken when this Constitution is completed, of the produce of each state, and let that
be the general standard.
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My friends and countrymen, let us pause for a moment and consider. We are not driven to such great
straits as to be obliged to swallow down every potion offered us by wholesale, or else die immediately by
our disease. We can form a Constitution at our leisure; and guard and secure it on all sides. We are paying
off our state debt, and the interest on the domestic, as fast as Congress call upon us for it. As to the foreign
debt, they have the promise of more interest from us than they can get anywhere else, and we shall be able
to pay them both interest and principal shortly. But it is said they win declare war against us if we don't pay
them immediately. Common sense will teach them better. We live at too great a distance, and are too
hardy and robust a people, for them to make money out of us in that way.
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But it is said, the trading towns are fond of this Constitution. Let us consider how they stand, including their
interest.
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1 . The merchant wishes to have it adopted, that trade might be regulated. 2dly. Another set of men wishes
to have it adopted, that the idea of paper money might be annihilated. 3dly. Another class of men wish to
have it take place, that the public might be enabled to pay off the foreign debt, and appear respectable
abroad among the nations. So do I, with all my heart. But in neither of these cases do I wish to see it
adopted without being guarded on all sides with a Magna Charta, or a Bill of Rights, as a bulwark to our
liberties. Again, another class of men wish to have it adopted, so that the public chest might be furnished
with money to pay the interest on their securities, which they purchased of the poor soldiers at two
shillings on the pound. I wish the soldiers were now the holders of those securites they fought so hard for.
However, as the public finances were such that they could not be paid off as they became due, and they
have carried them to market, and sold them as the boy did his top-we must pay them to the holders. But
we need not be in a hurry about it; certificates will do for that. Consider, my friends, you are the persons
who must live and die by this Constitution. A merchant or mechanic may dispose of his goods, or pack them
up in trunks and remove to another clime in the course of a few months. But you cannot shoulder your
lands, or dispose of them when you please. It therefore behooves you to rouse up, and turn your most
serious and critical attention to this Constitution. . . .
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A FARMER
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. . A large representation has ever been esteemed by the best whigs in Great Britain the best barrier against
bribery and corruption. And yet we find a British king, having the disposition of all places, civil and military,
and an immense revenue SQUEEZED out of the very mouths of his wretched subjects, is able to corrupt the
parliament, to vote him any supplies he demands, to support armies, to defend the prerogatives of his
crown, and carry fire and sword by his fleets and armies; to desolate whole provinces in the eastern world,
to aggrandize himself, and satisfy the avarice of his tyrannical subjects.
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No wonder our American ambassador, struck with the brilliancy of the British court [John Adams], where
everything around St. James's wears the appearance of wealth, ease and plenty, should imagine a three
branched legislature only can produce these effects, and make the subjects happy, should write a book in
favor of such a government, and send it over for the illumination of this western world. If this is the sole
fruit of his embassy, America will not canonize him for a saint on account of his services, when they have
experienced the consequences of such a kind of government as be has planned out. In order to have
formed a right judgment, he should have looked into the ditches which serve for graves for many of the
human race-under hedges which serve as dreary habitations for the living; into the cottages of the poor and
miserable, and critically examine with how much parsimony the mechanics, the day laborers, cottagers and
villagers live in order to support their high pampered lords-before he had wrote a book to persuade his
country to pursue the same road to greatness, splendor and glory, and have reflected in his own mind,
whether he could wish to see that country which gave him birth reduced to the same situation....
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Now I submit it to the good sense of the people of these states, whether it is prudent we should make so
liberal and extensive a grant of power and property to any body of men in these United States, before they
have ever informed the public, the amount of the public debt, or what the annual expenses of the federal
government is, or will be. It is now almost five years since the peace. Congress has employed thirteen
commissioners, at 1500 dollars per annum, as I am informed, to settle the public accounts, and we know
now no more what the national debt is, than at the first moment of their appointment. Nor do we know
any more what is the amount of the annual expenses of the federal government, than we do of the empire
of China. To grant therefore such an ample power of taxation, and the right of soil, to the amount of
millions, upon the recommendation of this honorable Convention, without either knowing the amount of
the national debt, or the annual expenses of government, would not argue, in my opinion, the highest
degree of prudence.
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FED11: THE UTILITY OF THE UNION IN RESPECT TO COMMERCIAL RELATIONS AND A NAVY
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THE importance of the Union, in a commercial light, is one of those points about which there is least room
to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men
who have any acquaintance with the subject. This applies as well to our intercourse with foreign countries
as with each other.
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There are appearances to authorize a supposition that the adventurous spirit, which distinguishes the
commercial character of America, has already excited uneasy sensations in several of the maritime powers
of Europe. They seem to be apprehensive of our too great interference in that carrying trade, which is the
support of their navigation and the foundation of their naval strength. Those of them which have colonies
in America look forward to what this country is capable of becoming, with painful solicitude. They foresee
the dangers that may threaten their American dominions from the neighborhood of States, which have all
the dispositions, and would possess all the means, requisite to the creation of a powerful marine.
Impressions of this kind will naturally indicate the policy of fostering divisions among us, and of depriving
us, as far as possible, of an ACTIVE COMMERCE in our own bottoms. This would answer the threefold
purpose of preventing our interference in their navigation, of monopolizing the profits of our trade, and of
clipping the wings by which we might soar to a dangerous greatness. Did not prudence forbid the detail, it
would not be difficult to trace, by facts, the workings of this policy to the cabinets of ministers.
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If we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. By
prohibitory regulations, extending, at the same time, throughout the States, we may oblige foreign
countries to bid against each other, for the privileges of our markets. This assertion will not appear
chimerical to those who are able to appreciate the importance of the markets of three millions of people—
increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local
circumstances to remain so—to any manufacturing nation; and the immense difference there would be to
the trade and navigation of such a nation, between a direct communication in its own ships, and an indirect
conveyance of its products and returns, to and from America, in the ships of another country. Suppose, for
instance, we had a government in America, capable of excluding Great Britain (with whom we have at
present no treaty of commerce) from all our ports; what would be the probable operation of this step upon
her politics? Would it not enable us to negotiate, with the fairest prospect of success, for commercial
privileges of the most valuable and extensive kind, in the dominions of that kingdom? When these
questions have been asked, upon other occasions, they have received a plausible, but not a solid or
satisfactory answer. It has been said that prohibitions on our part would produce no change in the system
of Britain, because she could prosecute her trade with us through the medium of the Dutch, who would be
her immediate customers and paymasters for those articles which were wanted for the supply of our
markets. But would not her navigation be materially injured by the loss of the important advantage of being
her own carrier in that trade? Would not the principal part of its profits be intercepted by the Dutch, as a
compensation for their agency and risk? Would not the mere circumstance of freight occasion a
considerable deduction? Would not so circuitous an intercourse facilitate the competitions of other nations,
by enhancing the price of British commodities in our markets, and by transferring to other hands the
management of this interesting branch of the British commerce?
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A mature consideration of the objects suggested by these questions will justify a belief that the real
disadvantages to Britain from such a state of things, conspiring with the pre-possessions of a great part of
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the nation in favor of the American trade, and with the importunities of the West India islands, would
produce a relaxation in her present system, and would let us into the enjoyment of privileges in the markets
of those islands elsewhere, from which our trade would derive the most substantial benefits. Such a point
gained from the British government, and which could not be expected without an equivalent in exemptions
and immunities in our markets, would be likely to have a correspondent effect on the conduct of other
nations, who would not be inclined to see themselves altogether supplanted in our trade.
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A further resource for influencing the conduct of European nations toward us, in this respect, would arise
from the establishment of a federal navy. There can be no doubt that the continuance of the Union under
an efficient government would put it in our power, at a period not very distant, to create a navy which, if it
could not vie with those of the great maritime powers, would at least be of respectable weight if thrown
into the scale of either of two contending parties. This would be more peculiarly the case in relation to
operations in the West Indies. A few ships of the line, sent opportunely to the reinforcement of either side,
would often be sufficient to decide the fate of a campaign, on the event of which interests of the greatest
magnitude were suspended. Our position is, in this respect, a most commanding one. And if to this
consideration we add that of the usefulness of supplies from this country, in the prosecution of military
operations in the West Indies, it will readily be perceived that a situation so favorable would enable us to
bargain with great advantage for commercial privileges. A price would be set not only upon our friendship,
but upon our neutrality. By a steady adherence to the Union we may hope, erelong, to become the arbiter
of Europe in America, and to be able to incline the balance of European competitions in this part of the
world as our interest may dictate.
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But in the reverse of this eligible situation, we shall discover that the rivalships of the parts would make
them checks upon each other, and would frustrate all the tempting advantages which nature has kindly
placed within our reach. In a state so insignificant our commerce would be a prey to the wanton
intermeddlings of all nations at war with each other; who, having nothing to fear from us, would with little
scruple or remorse, supply their wants by depredations on our property as often as it fell in their way. The
rights of neutrality will only be respected when they are defended by an adequate power. A nation,
despicable by its weakness, forfeits even the privilege of being neutral.
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Under a vigorous national government, the natural strength and resources of the country, directed to a
common interest, would baffle all the combinations of European jealousy to restrain our growth. This
situation would even take away the motive to such combinations, by inducing an impracticability of success.
An active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral
and physical necessity. We might defy the little arts of the little politicians to control or vary the irresistible
and unchangeable course of nature.
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But in a state of disunion, these combinations might exist and might operate with success. It would be in
the power of the maritime nations, availing themselves of our universal impotence, to prescribe the
conditions of our political existence; and as they have a common interest in being our carriers, and still
more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation
in such a manner as would in effect destroy it, and confine us to a PASSIVE COMMERCE. We should then be
compelled to content ourselves with the first price of our commodities, and to see the profits of our trade
snatched from us to enrich our enemies and persecutors. That unequaled spirit of enterprise, which
signalizes the genius of the American merchants and navigators, and which is in itself an inexhaustible mine
of national wealth, would be stifled and lost, and poverty and disgrace would overspread a country which,
with wisdom, might make herself the admiration and envy of the world.
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There are rights of great moment to the trade of America which are rights of the Union—I allude to the
fisheries, to the navigation of the Western lakes, and to that of the Mississippi. The dissolution of the
Confederacy would give room for delicate questions concerning the future existence of these rights; which
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the interest of more powerful partners would hardly fail to solve to our disadvantage. The disposition of
Spain with regard to the Mississippi needs no comment. France and Britain are concerned with us in the
fisheries, and view them as of the utmost moment to their navigation. They, of course, would hardly remain
long indifferent to that decided mastery, of which experience has shown us to be possessed in this valuable
branch of traffic, and by which we are able to undersell those nations in their own markets. What more
natural than that they should be disposed to exclude from the lists such dangerous competitors?
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This branch of trade ought not to be considered as a partial benefit. All the navigating States may, in
different degrees, advantageously participate in it, and under circumstances of a greater extension of
mercantile capital, would not be unlikely to do it. As a nursery of seamen, it now is, or when time shall have
more nearly assimilated the principles of navigation in the several States, will become, a universal resource.
To the establishment of a navy, it must be indispensable.
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To this great national object, a NAVY, union will contribute in various ways. Every institution will grow and
flourish in proportion to the quantity and extent of the means concentred towards its formation and
support. A navy of the United States, as it would embrace the resources of all, is an object far less remote
than a navy of any single State or partial confederacy, which would only embrace the resources of a single
part. It happens, indeed, that different portions of confederated America possess each some peculiar
advantage for this essential establishment. The more southern States furnish in greater abundance certain
kinds of naval stores—tar, pitch, and turpentine. Their wood for the construction of ships is also of a more
solid and lasting texture. The difference in the duration of the ships of which the navy might be composed,
if chiefly constructed of Southern wood, would be of signal importance, either in the view of naval strength
or of national economy. Some of the Southern and of the Middle States yield a greater plenty of iron, and of
better quality. Seamen must chiefly be drawn from the Northern hive. The necessity of naval protection to
external or maritime commerce does not require a particular elucidation, no more than the conduciveness
of that species of commerce to the prosperity of a navy.
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An unrestrained intercourse between the States themselves will advance the trade of each by an
interchange of their respective productions, not only for the supply of reciprocal wants at home, but for
exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire
additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise
will have much greater scope, from the diversity in the productions of different States. When the staple of
one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety, not
less than the value, of products for exportation contributes to the activity of foreign commerce. It can be
conducted upon much better terms with a large number of materials of a given value than with a small
number of materials of the same value; arising from the competitions of trade and from the fluctuations of
markets. Particular articles may be in great demand at certain periods, and unsalable at others; but if there
be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament,
and on this account the operations of the merchant would be less liable to any considerable obstruction or
stagnation. The speculative trader will at once perceive the force of these observations, and will
acknowledge that the aggregate balance of the commerce of the United States would bid fair to be much
more favorable than that of the thirteen States without union or with partial unions.
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It may perhaps be replied to this, that whether the States are united or disunited, there would still be an
intimate intercourse between them which would answer the same ends; this intercourse would be fettered,
interrupted, and narrowed by a multiplicity of causes, which in the course of these papers have been amply
detailed. A unity of commercial, as well as political, interests, can only result from a unity of government.
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There are other points of view in which this subject might be placed, of a striking and animating kind. But
they would lead us too far into the regions of futurity, and would involve topics not proper for a newspaper
discussion. I shall briefly observe, that our situation invites and our interests prompt us to aim at an
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ascendant in the system of American affairs. The world may politically, as well as geographically, be divided
into four parts, each having a distinct set of interests. Unhappily for the other three, Europe, by her arms
and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them
all. Africa, Asia, and America, have successively felt her domination. The superiority she has long maintained
has tempted her to plume herself as the Mistress of the World, and to consider the rest of mankind as
created for her benefit. Men admired as profound philosophers have, in direct terms, attributed to her
inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human
species, degenerate in America—that even dogs cease to bark after having breathed awhile in our
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atmosphere. Facts have too long supported these arrogant pretensions of the Europeans. It belongs to us
to vindicate the honor of the human race, and to teach that assuming brother, moderation. Union will
enable us to do it. Disunion will add another victim to his triumphs. Let Americans disdain to be the
instruments of European greatness! Let the thirteen States, bound together in a strict and indissoluble
Union, concur in erecting one great American system, superior to the control of all transatlantic force or
influence, and able to dictate the terms of the connection between the old and the new world!
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"Recherches philosophiques sur les Americains."
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FED12: THE UTILITY OF THE UNION IN RESPECT TO REVENUE
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From the New York Packet. Tuesday, November 27, 1787.
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THE effects of Union upon the commercial prosperity of the States have been sufficiently delineated. Its
tendency to promote the interests of revenue will be the subject of our present inquiry.
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The prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the
most useful as well as the most productive source of national wealth, and has accordingly become a
primary object of their political cares. By multiplying the means of gratification, by promoting the
introduction and circulation of the precious metals, those darling objects of human avarice and enterprise,
it serves to vivify and invigorate the channels of industry, and to make them flow with greater activity and
copiousness. The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious
manufacturer,—all orders of men, look forward with eager expectation and growing alacrity to this pleasing
reward of their toils. The often-agitated question between agriculture and commerce has, from indubitable
experience, received a decision which has silenced the rivalship that once subsisted between them, and has
proved, to the satisfaction of their friends, that their interests are intimately blended and interwoven. It has
been found in various countries that, in proportion as commerce has flourished, land has risen in value. And
how could it have happened otherwise? Could that which procures a freer vent for the products of the
earth, which furnishes new incitements to the cultivation of land, which is the most powerful instrument in
increasing the quantity of money in a state—could that, in fine, which is the faithful handmaid of labor and
industry, in every shape, fail to augment that article, which is the prolific parent of far the greatest part of
the objects upon which they are exerted? It is astonishing that so simple a truth should ever have had an
adversary; and it is one, among a multitude of proofs, how apt a spirit of ill-informed jealousy, or of too
great abstraction and refinement, is to lead men astray from the plainest truths of reason and conviction.
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The ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of
money in circulation, and to the celerity with which it circulates. Commerce, contributing to both these
objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the
treasury. The hereditary dominions of the Emperor of Germany contain a great extent of fertile, cultivated,
and populous territory, a large proportion of which is situated in mild and luxuriant climates. In some parts
of this territory are to be found the best gold and silver mines in Europe. And yet, from the want of the
fostering influence of commerce, that monarch can boast but slender revenues. He has several times been
compelled to owe obligations to the pecuniary succors of other nations for the preservation of his essential
interests, and is unable, upon the strength of his own resources, to sustain a long or continued war.
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But it is not in this aspect of the subject alone that Union will be seen to conduce to the purpose of
revenue. There are other points of view, in which its influence will appear more immediate and decisive. It
is evident from the state of the country, from the habits of the people, from the experience we have had on
the point itself, that it is impracticable to raise any very considerable sums by direct taxation. Tax laws have
in vain been multiplied; new methods to enforce the collection have in vain been tried; the public
expectation has been uniformly disappointed, and the treasuries of the States have remained empty. The
popular system of administration inherent in the nature of popular government, coinciding with the real
scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every
experiment for extensive collections, and has at length taught the different legislatures the folly of
attempting them.
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No person acquainted with what happens in other countries will be surprised at this circumstance. In so
opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable,
and, from the vigor of the government, much more practicable, than in America, far the greatest part of the
national revenue is derived from taxes of the indirect kind, from imposts, and from excises. Duties on
imported articles form a large branch of this latter description.
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In America, it is evident that we must a long time depend for the means of revenue chiefly on such duties.
In most parts of it, excises must be confined within a narrow compass. The genius of the people will ill
brook the inquisitive and peremptory spirit of excise laws. The pockets of the farmers, on the other hand,
will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands;
and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the
imperceptible agency of taxes on consumption.
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If these remarks have any foundation, that state of things which will best enable us to improve and extend
so valuable a resource must be best adapted to our political welfare. And it cannot admit of a serious
doubt, that this state of things must rest on the basis of a general Union. As far as this would be conducive
to the interests of commerce, so far it must tend to the extension of the revenue to be drawn from that
source. As far as it would contribute to rendering regulations for the collection of the duties more simple
and efficacious, so far it must serve to answer the purposes of making the same rate of duties more
productive, and of putting it into the power of the government to increase the rate without prejudice to
trade.
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The relative situation of these States; the number of rivers with which they are intersected, and of bays that
wash there shores; the facility of communication in every direction; the affinity of language and manners;
the familiar habits of intercourse;—all these are circumstances that would conspire to render an illicit trade
between them a matter of little difficulty, and would insure frequent evasions of the commercial
regulations of each other. The separate States or confederacies would be necessitated by mutual jealousy
to avoid the temptations to that kind of trade by the lowness of their duties. The temper of our
governments, for a long time to come, would not permit those rigorous precautions by which the European
nations guard the avenues into their respective countries, as well by land as by water; and which, even
there, are found insufficient obstacles to the adventurous stratagems of avarice.
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In France, there is an army of patrols (as they are called) constantly employed to secure their fiscal
regulations against the inroads of the dealers in contraband trade. Mr. Neckar computes the number of
these patrols at upwards of twenty thousand. This shows the immense difficulty in preventing that species
of traffic, where there is an inland communication, and places in a strong light the disadvantages with
which the collection of duties in this country would be encumbered, if by disunion the States should be
placed in a situation, with respect to each other, resembling that of France with respect to her neighbors.
The arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a
free country.
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If, on the contrary, there be but one government pervading all the States, there will be, as to the principal
part of our commerce, but ONE SIDE to guard—the ATLANTIC COAST. Vessels arriving directly from foreign
countries, laden with valuable cargoes, would rarely choose to hazard themselves to the complicated and
critical perils which would attend attempts to unlade prior to their coming into port. They would have to
dread both the dangers of the coast, and of detection, as well after as before their arrival at the places of
their final destination. An ordinary degree of vigilance would be competent to the prevention of any
material infractions upon the rights of the revenue. A few armed vessels, judiciously stationed at the
entrances of our ports, might at a small expense be made useful sentinels of the laws. And the government
having the same interest to provide against violations everywhere, the co-operation of its measures in each
State would have a powerful tendency to render them effectual. Here also we should preserve by Union, an
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advantage which nature holds out to us, and which would be relinquished by separation. The United States
lie at a great distance from Europe, and at a considerable distance from all other places with which they
would have extensive connections of foreign trade. The passage from them to us, in a few hours, or in a
single night, as between the coasts of France and Britain, and of other neighboring nations, would be
impracticable. This is a prodigious security against a direct contraband with foreign countries; but a
circuitous contraband to one State, through the medium of another, would be both easy and safe. The
difference between a direct importation from abroad, and an indirect importation through the channel of a
neighboring State, in small parcels, according to time and opportunity, with the additional facilities of inland
communication, must be palpable to every man of discernment.
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It is therefore evident, that one national government would be able, at much less expense, to extend the
duties on imports, beyond comparison, further than would be practicable to the States separately, or to any
partial confederacies. Hitherto, I believe, it may safely be asserted, that these duties have not upon an
average exceeded in any State three per cent. In France they are estimated to be about fifteen per cent.,
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and in Britain they exceed this proportion. There seems to be nothing to hinder their being increased in
this country to at least treble their present amount. The single article of ardent spirits, under federal
regulation, might be made to furnish a considerable revenue. Upon a ratio to the importation into this
State, the whole quantity imported into the United States may be estimated at four millions of gallons;
which, at a shilling per gallon, would produce two hundred thousand pounds. That article would well bear
this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally
favorable to the agriculture, to the economy, to the morals, and to the health of the society. There is,
perhaps, nothing so much a subject of national extravagance as these spirits.
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What will be the consequence, if we are not able to avail ourselves of the resource in question in its full
extent? A nation cannot long exist without revenues. Destitute of this essential support, it must resign its
independence, and sink into the degraded condition of a province. This is an extremity to which no
government will of choice accede. Revenue, therefore, must be had at all events. In this country, if the
principal part be not drawn from commerce, it must fall with oppressive weight upon land. It has been
already intimated that excises, in their true signification, are too little in unison with the feelings of the
people, to admit of great use being made of that mode of taxation; nor, indeed, in the States where almost
the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very
ample collections in that way. Personal estate (as has been before remarked), from the difficulty in tracing
it, cannot be subjected to large contributions, by any other means than by taxes on consumption. In
populous cities, it may be enough the subject of conjecture, to occasion the oppression of individuals,
without much aggregate benefit to the State; but beyond these circles, it must, in a great measure, escape
the eye and the hand of the tax-gatherer. As the necessities of the State, nevertheless, must be satisfied in
some mode or other, the defect of other resources must throw the principal weight of public burdens on
the possessors of land. And as, on the other hand, the wants of the government can never obtain an
adequate supply, unless all the sources of revenue are open to its demands, the finances of the community,
under such embarrassments, cannot be put into a situation consistent with its respectability or its security.
Thus we shall not even have the consolations of a full treasury, to atone for the oppression of that valuable
class of the citizens who are employed in the cultivation of the soil. But public and private distress will keep
pace with each other in gloomy concert; and unite in deploring the infatuation of those counsels which led
to disunion.
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If my memory be right they amount to twenty per cent.
Page 70
FED13: ADVANTAGE OF THE UNION IN RESPECT TO ECONOMY IN GOVERNMENT
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HAMILTON
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As CONNECTED with the subject of revenue, we may with propriety consider that of economy. The money
saved from one object may be usefully applied to another, and there will be so much the less to be drawn
from the pockets of the people. If the States are united under one government, there will be but one
national civil list to support; if they are divided into several confederacies, there will be as many different
national civil lists to be provided for—and each of them, as to the principal departments, coextensive with
that which would be necessary for a government of the whole. The entire separation of the States into
thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many
advocates. The ideas of men who speculate upon the dismemberment of the empire seem generally turned
toward three confederacies—one consisting of the four Northern, another of the four Middle, and a third of
the five Southern States. There is little probability that there would be a greater number. According to this
distribution, each confederacy would comprise an extent of territory larger than that of the kingdom of
Great Britain. No well-informed man will suppose that the affairs of such a confederacy can be properly
regulated by a government less comprehensive in its organs or institutions than that which has been
proposed by the convention. When the dimensions of a State attain to a certain magnitude, it requires the
same energy of government and the same forms of administration which are requisite in one of much
greater extent. This idea admits not of precise demonstration, because there is no rule by which we can
measure the momentum of civil power necessary to the government of any given number of individuals;
but when we consider that the island of Britain, nearly commensurate with each of the supposed
confederacies, contains about eight millions of people, and when we reflect upon the degree of authority
required to direct the passions of so large a society to the public good, we shall see no reason to doubt that
the like portion of power would be sufficient to perform the same task in a society far more numerous. Civil
power, properly organized and exerted, is capable of diffusing its force to a very great extent; and can, in a
manner, reproduce itself in every part of a great empire by a judicious arrangement of subordinate
institutions.
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The supposition that each confederacy into which the States would be likely to be divided would require a
government not less comprehensive than the one proposed, will be strengthened by another supposition,
more probable than that which presents us with three confederacies as the alternative to a general Union.
If we attend carefully to geographical and commercial considerations, in conjunction with the habits and
prejudices of the different States, we shall be led to conclude that in case of disunion they will most
naturally league themselves under two governments. The four Eastern States, from all the causes that form
the links of national sympathy and connection, may with certainty be expected to unite. New York, situated
as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that
confederacy. There are other obvious reasons that would facilitate her accession to it. New Jersey is too
small a State to think of being a frontier, in opposition to this still more powerful combination; nor do there
appear to be any obstacles to her admission into it. Even Pennsylvania would have strong inducements to
join the Northern league. An active foreign commerce, on the basis of her own navigation, is her true policy,
and coincides with the opinions and dispositions of her citizens. The more Southern States, from various
circumstances, may not think themselves much interested in the encouragement of navigation. They may
prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers
of their commodities. Pennsylvania may not choose to confound her interests in a connection so adverse to
her policy. As she must at all events be a frontier, she may deem it most consistent with her safety to have
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her exposed side turned towards the weaker power of the Southern, rather than towards the stronger
power of the Northern, Confederacy. This would give her the fairest chance to avoid being the Flanders of
America. Whatever may be the determination of Pennsylvania, if the Northern Confederacy includes New
Jersey, there is no likelihood of more than one confederacy to the south of that State.
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Nothing can be more evident than that the thirteen States will be able to support a national government
better than one half, or one third, or any number less than the whole. This reflection must have great
weight in obviating that objection to the proposed plan, which is founded on the principle of expense; an
objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on
mistaken ground.
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If, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who
must necessarily be employed to guard the inland communication between the different confederacies
against illicit trade, and who in time will infallibly spring up out of the necessities of revenue; and if we also
take into view the military establishments which it has been shown would unavoidably result from the
jealousies and conflicts of the several nations into which the States would be divided, we shall clearly
discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce,
revenue, and liberty of every part.
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Page 72
AFED12: HOW WILL THE NEW GOVERNMENT RAISE MONEY?
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"CINCINNATUS" is an Antifederalist writer. In this essay, from an Address to a Meeting of the Citizens of
Philadelphia, the writer responds to James Wilson's statements about Congress' powers to tax under the
Constitution. It appeared in the November 29 and December 6, 1787, New-York Journal, as reprinted from a
Philadelphia newspaper.
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On the subject of taxation, in which powers are to be given so largely by the new constitution, you [James
Wilson of Pennsylvania] lull our fears of abuse by venturing to predict "that the great revenue of the United
States must, and always will, be raised by impost"-and you elevate our hopes by holding out, "the reviving
and supporting the national credit." If you have any other plan for this, than by raising money upon the
people to pay the interest of the national debt, your ingenuity will deserve our thanks. Supposing however,
that raising money is necessary to payment of the interest, and such a payment [is] requisite to support the
credit of the union-let us see how much will be necessary for that end, and how far the impost will supply
what we want. The arrearages of French and Spanish interest amount now to--1,500,000 dollars; Interest
and installments of do. for 1788--850,227; Support of government; and its departments, for 1788--500,000;
Arrears and anticipations of 1787-- 300,000; Interest of domestic debt-- 500,000 {total} 4,650,227
[3,650,227]
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The new Congress then, supposing it to get into operation towards October, 1788, will have to provide for
this sum, and for the additional sum of 3,000,000 at least for the ensuing year; which together will make
the sum of 7,650,227 [6,650,227].
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Now let us see how the impost will answer this. Congress have furnished us with their estimate of the
produce of the whole imports of America at five per cent and that is 800,000 dollars. There will remain to
provide for, by other taxes, 6,850,227 [5,850,227].
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We know too, that our imports diminish yearly, and from the nature of things must continue to diminish;
and consequently that the above estimate of the produce of the impost, will in all probability fall much
short of the supposed sum. But even without this, it must appear that you [were] either intentionally
misleading your hearers, or [were] very little acquainted with the subject when you ventured to predict that
the great revenue of the United States would always flow from the impost. The estimate above is from the
publications of Congress, and I presume is right. But the sum stated, necessary to be raised by the new
government, in order to answer the expectations they have raised, is not all. The state debts, independent
of what each owes to the United States, amount to about 30,000,000 dollars; the annual interest of this is
1,000,000.
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It will be expected that the new government will provide for this also; and such expectation is founded, not
only on the promise you hold forth, of its reviving and supporting public credit among us, but also on this
unavoidable principle of justice-that is, the new government takes away the impost, and other substantial
taxes, from the produce of which the several states paid the interest of their debt, or funded the paper with
which they paid it. The new government must find ways and means of supplying that deficiency, . . . in hard
money, for . . . paper . . . cannot [be used] without a violation of the principles it boasts. The sum then
which it must annually raise in specie, after the first year, cannot be less than 4,800,000. At present there is
not one half of this sum in specie raised in all the states. And yet the complaints of intolerable taxes has
produced one rebellion and will be mainly operative in the adoption of your constitution. How you will get
this sum is inconceivable and yet get it you must, or lose all credit. With magnificent promises you have
bought golden opinions of all sorts of people, and with gold you must answer them, . . .
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To satisfy [our fellow citizens] more fully on the subject of the revenue, that is to be raised upon them, in
order to give enormous fortunes to the jobbers in public securities, I shall lay before them a proposition to
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Congress, from Mr. Robert Morris, when superintendent of finance. It is dated, I think,' the 29th of June,
1782, and is in these words:
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[1 say, I think, because by accident the month is erased in the note I have, and I have not access to public
papers which would enable me to supply the defect.]
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"The requisition of a five per cent impost, made on the 3d of February, 1781, has not yet been complied
with by the state of Rhode Island, but as there is reason to believe, that their compliance is not far off, this
revenue may be considered as already granted. It will, however, be very inadequate to the purposes
intended. If goods be imported, and prizes introduced to the amount of twelve millions annually, the five
per cent would be six hundred thousand, from which at least one sixth must be deducted, as well for the
cost of collection as for the various defalcations which will necessarily happen, and which it is unnecessary
to enumerate. It is not safe therefore, to estimate this revenue at more than half a million of dollars; for
though it may produce more, yet probably it will not produce so much. It was in consequence of this, that
on the 27th day of February last, I took the liberty to submit the propriety of asking the states for a land tax
of one dollar for every hundred acres of land-a poll-tax of one dollar on all freemen, and all male slaves,
between sixteen and sixty, excepting such as are in the federal army, or by wounds or otherwise rendered
unfit for service-and an excise of one eighth of a dollar, on all distilled spiritous liquors. Each of these may
be estimated at half a million; and should the product be equal to the estimation, the sum total of revenues
for funding the public debts, would be equal to two millions."
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You will readily perceive, Mr. Wilson, that there is a vast difference between your prediction and your
friend's proposition. Give me leave to say, sir, that it was not discreet, in you, to speak upon finance without
instructions from this great financier. Since, independent of its delusive effect upon your audience, it may
excite his jealousy, lest you should have a secret design of rivalling him in the expected office of
superintendent under the new constitution. It is true, there is no real foundation for it; but then you know
jealousy makes the food it feeds on. A quarrel between two such able and honest friends to the United
States, would, I am persuaded, be felt as a public calamity. I beseech you then to be very tender upon this
point in your next harangue. And if four months' study will not furnish you with sufficient discretion, we will
indulge you with six.
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It may be said, that let the government be what it may, the sums I have stated must be raised, and the
same difficulties exist. This is not altogether true. For first, we are now in the way of paying the interest of
the domestic debt, with paper, which under the new system is utterly reprobated. This makes a difference
between the specie to be raised of 1,800,000 dollars per annum. If the new government raises this sum in
specie on the people, it will certainly support public credit, but it will overwhelm the people. It will give
immense fortunes to the speculators; but it will grind the poor to dust. Besides, the present government is
now redeeming the principal of the domestic debt by the sale of western lands. But let the full interest be
paid in specie, and who will part with the principal for those lands? A principal, which having been generally
purchased for two shillings and six pence on the pound, will yield to the holders two hundred and forty per
cent. This paper system therefore, though in general an evil, is in this instance attended with the great
benefit of enabling the public to cancel a debt upon easy terms, which has been swelled to its enormous
size, by as enormous impositions. And the new government, by promising too much, will involve itself in a
disreputable breach of faith. . . .
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The present government promises nothing; the intended government, everything. From the present
government little is expected; from the intended one, much. Because it is conceived that to the latter much
is given; to the former, little. And yet the inability of the people to pay what is required in specie, remaining
the same, the funds of the one will not much exceed those of the other. The public creditors are easy with
the present government from a conviction of its inability [to pay]. They will be urgent with the new one
from an opinion, that as is promised, so it can and will perform every thing. Whether the change will be for
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our prosperity and honor, is yet to be tried. Perhaps it will be found, that the supposed want of power in
Congress to levy taxes is, at present a veil happily thrown over the inability of the people; and that the large
powers given to the new government will, to every one, expose the nakedness of our land. Certain it is, that
if the expectations which are grafted on the gift of those plenary powers, are not answered, our credit will
be irretrievably ruined.
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Page 75
AFED11: UNRESTRICTED POWER OVER COMMERCE SHOULD NOT BE GIVEN THE NATIONAL
GOVERNMENT
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Scholars regard James Winthrop of Cambridge, Mass. to be the "Agrippa" who contributed the series to The
Massachusetts Gazette from November 23, 1787 to February 5, 1788. This is a compilation of excerpts from
"Agrippa's" letters of December 14, 18, 25, and 28, 1787, taken from Ford, Essays, pp. 70-73, 76-77, 79-81.
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It has been proved, by indisputable evidence, that power is not the grand principle of union among the
parts of a very extensive empire; and that when this principle is pushed beyond the degree necessary for
rendering justice between man and man, it debases the character of individuals, and renders them less
secure in their persons and property. Civil liberty consists in the consciousness of that security, and is best
guarded by political liberty, which is the share that every citizen has in the government. Accordingly all our
accounts agree, that in those empires which are commonly called despotic, and which comprehend by far
the greatest part of the world, the government is most fluctuating, and property least secure. In those
countries insults are borne by the sovereign, which, if offered to one of our governors, would fill us with
horror, and we should think the government dissolving.
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The common conclusion from this reasoning is an exceedingly unfair one, that we must then separate, and
form distinct confederacies. This would be true if there was no principle to substitute in the room of power.
Fortunately there is one. This is commerce. All the states have local advantages, and in a considerable
degree separate interests. They are, therefore, in a situation to supply each other's wants. Carolina, for
instance, is inhabited by planters, while Massachusetts is more engaged in commerce and manufactures.
Congress has the power of deciding their differences. The most friendly intercourse may therefore be
established between them. A diversity of produce, wants and interests, produces commerce; and
commerce, where there is a common, equal and moderate authority to preside, produces friendship.
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The same principles apply to the connection with the new settlers in the west. Many supplies they want, for
which they must look to the older settlements, and the greatness of their crops enables them to make
payments. Here, then, we have a bond of -union which applies to all parts of the empire, and would
continue to operate if the empire comprehended all America.
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We are now, in the strictest sense of the terms, a federal republic. Each part has within its own limits the
sovereignty over its citizens, while some of the general concerns are committed to Congress. The
complaints of the deficiency of the Congressional powers are confined to two articles. They are not able to
raise a revenue by taxation, and they have not a complete regulation of the intercourse between us and
foreigners. For each of these complaints there is some foundation, but not enough to justify the clamor
which has been raised…
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The second article of complaint against the present confederation … is that Congress has not the sole power
to regulate the intercourse between us and foreigners. Such a power extends not only to war and peace,
but to trade and naturalization. This last article ought never to be given them; for though most of the states
may be willing for certain reasons to receive foreigners as citizens, yet reasons of equal weight may induce
other states, differently circumstanced, to keep their blood pure. Pennsylvania has chosen to receive all
that would come there. Let any indifferent person judge whether that state in point of morals, education,
[or] energy, is equal to any of the eastern states; the small state of Rhode Island only excepted.
Pennsylvania in the course of a century has acquired her present extent and population at the expense of
religion and good morals. The eastern states have, by keeping separate from the foreign mixtures, acquired
their present greatness in the course of a century and an half, and have preserved their religion and morals.
They have also preserved that manly virtue which is equally fitted for rendering them respectable in war,
and industrious in peace.
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The remaining power for peace and trade might perhaps be safely lodged with Congress under some
limitations. Three restrictions appear to me to be essentially necessary to preserve that equality of rights to
the states, which it is the object of the state governments to secure to each citizen. 1st. It ought not to be in
the power of Congress, either by treaty or otherwise, to alienate part of any state without the consent of
the legislature. 2nd. They ought not to be able, by treaty or other law, to give any legal preference to one
part above another. 3rd. They ought to be restrained from creating any monopolies....
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The idea of consolidation is further kept up in the right given to regulate trade. Though this power under
certain limitations would be a proper one for the department of Congress, it is in this system carried much
too far, and much farther than is necessary. This is, without exception, the most commercial state upon the
continent. Our extensive coasts, cold climate, small estates, and equality of rights, with a variety of
subordinate and concurring circumstances, place us in this respect at the head of the Union. We must,
therefore, be indulged if a point which so nearly relates to our welfare be rigidly examined. The new
constitution not only prohibits vessels, bound from one state to another, from paying any duties, but even
from entering and clearing. The only use of such a regulation is, to keep each state in complete ignorance of
its own resources. It certainly is no hardship to enter and clear at the custom house, and the expense is too
small to be an object.
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The unlimited right to regulate trade, includes the right of granting exclusive charters. This, in all old
countries, is considered as one principal branch of prerogative. We find hardly a country in Europe which
has not felt the ill effects of such a power. Holland has carried the exercise of it farther than any other state,
and the reason why that country has felt less evil from it is, that the territory is very small, and they have
drawn large revenues from their colonies in the East and West Indies. In this respect, the whole country is
to be considered as a trading company, having exclusive privileges. The colonies are large in proportion to
the parent state; so that, upon the whole, the latter may gain by such a system. We are also to take into
consideration the industry which the genius of a free government inspires. But in the British islands all these
circumstances together have not prevented them from being injured by the monopolies created there.
Individuals have been enriched, but the country at large has been hurt. Some valuable branches of trade
being granted to companies, who transact their business in London, that city is, perhaps, the place of the
greatest trade in the world. But Ireland, under such influence, suffers exceedingly, and is impoverished; and
Scotland is a mere by-word. Bristol, the second city in England, ranks not much above this town [Boston] in
population. These things must be accounted for by the incorporation of trading companies; and if they are
felt so severely in countries of small extent, they will operate with tenfold severity upon us, who inhabit an
immense tract; and living towards one extreme of an extensive empire, shall feel the evil, without retaining
that influence in government, which may enable us to procure redress. There ought, then, to have been
inserted a restraining clause which might prevent the Congress from making any such grant, because they
consequentially defeat the trade of the out-ports, and are also injurious to the general commerce, by
enhancing prices and destroying that rivalship which is the great stimulus to industry. . . .
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There cannot be a doubt, that, while the trade of this continent remains free, the activity of our
countrymen will secure their full share. AR the estimates for the present year, let them be made by what
party they may, suppose the balance of trade to be largely in our favor. The credit of our merchants is,
therefore, fully established in foreign countries. This is a sufficient proof, that when business is unshackled,
it will find out that channel which is most friendly to its course. We ought, therefore, to be exceedingly
cautious about diverting or restraining it. Every day produces fresh proofs, that people, under the
immediate pressure of difficulties, do not, at first glance, discover the proper relief. The last year, a desire
to get rid of embarrassments induced many honest people to agree to a tender act, and many others, of a
different description, to obstruct the courts of justice. Both these methods only increased the evil they
were intended to cure. Experience has since shown that, instead of trying to lesson an evil by altering the
present course of things, that every endeavor should have been applied to facilitate the course of law, and
thus to encourage a mutual confidence among the citizens, which increases the resources of them all, and
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renders easy the payment of debts. By this means one does not grow rich at the expense of another, but all
are benefited. The case is the same with the States. Pennsylvania, with one port and a large territory, is less
favorably situated for trade than Massachusetts, which has an extensive coast in proportion to its limits of
jurisdiction. Accordingly a much larger proportion of our people are engaged in maritime affairs. We ought
therefore to be particularly attentive to securing so great an interest. It is vain to tell us that we ought to
overlook local interests. It is only by protecting local concerns that the interest of the whole is preserved.
No man when he enters into society does it from a view to promote the good of others, but he does it for
his own good. All men having the same view are bound equally to promote the welfare of the whole. To
recur then to such a principle as that local interests must be disregarded, is requiring of one man to do
more than another, and is subverting the foundation of a free government. The Philadelphians would be
shocked with a proposition to place the seat of general government and the unlimited right to regulate
trade in Massachusetts. There can be no greater reason for our surrendering the preference to them. Such
sacrifices, however we may delude ourselves with the form of words, always originate in folly, and not in
generosity.
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Page 78
STATE SOVEREIGNTY – PRESERVATION OF THE UNION
AFED17: FEDERALIST POWER WILL ULTIMATELY SUBVERT STATE AUTHORITY
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The Famous BRUTUS, Number I, October, 18, 1787
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The "necessary and proper" clause has, from the beginning, been a thorn in the side of those seeking to
reduce federal power, but its attack by Brutus served to call attention to it, leaving a paper trail of intent
verifying its purpose was not to give Congress anything the Constitution "forgot," but rather to show two
additional tests for any legislation Congress should attempt: to wit--that the intended actions would be
both necessary AND proper to executing powers given under clauses 1-17 of Article I Section 8. This is the
famous BRUTUS.
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This [new] government is to possess absolute and uncontrollable powers, legislative, executive and judicial,
with respect to every object to which it extends, for by the last clause of section eighth, article first, 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 sixth 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 offenses, 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 the 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 defense 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 common defense, 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 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
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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 others after it; it is the great mean of protection, security,
and defense, 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
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 means, 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. Everyone who has thought on the subject, must be convinced that but small sums of
money can he collected in any country, by direct tax; when the federal 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 be absorbed in that of the general government.
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It might be here shown, that the power in the federal legislature, to raise and support armies at pleasure, as
well in peace as in war, and their control 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.
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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.
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How far the clause in the eighth section of the first article may operate to do away with 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, and may, for
aught I know, be exercised in 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 law of the land, and the judges in every State shall be
bound thereby, anything 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.
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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
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are less responsible to the people. But what is meant is, that the legislature of the United States are vested
with the great and uncontrollable 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 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 everything 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 in operation.
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AFED14: EXTENT OF TERRITORY UNDER CONSOLIDATED GOVERNMENT TOO LARGE TO PRESERVE
LIBERTY OR PROTECT PROPERTY
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George Clinton, Governor of New York, was an adversary of the Constitution. He composed several letters
under the nome de plume "CATO." This essay is from the third letter of "Cato," The New-York Journal of
October 25, 1787.
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. . . The recital, or premises on which the new form of government is erected, declares a consolidation or
union of all the thirteen parts, or states, into one great whole, under the form of the United States, for all
the various and important purposes therein set forth. But whoever seriously considers the immense extent
of territory comprehended within the limits of the United States, together with the variety of its climates,
productions, and commerce, the difference of extent, and number of inhabitants in all; the dissimilitude of
interest, morals, and politics, in almost every one, will receive it as an intuitive truth, that a consolidated
republican form of government therein, can never form a perfect union, establish justice, insure domestic
tranquility, promote the general welfare, and secure the blessings of liberty to you and your posterity, for
to these objects it must be directed. This unkindred legislature therefore, composed of interests opposite
and dissimilar in their nature, will in its exercise, emphatically be like a house divided against itself.
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The governments of Europe have taken their limits and form from adventitious circumstances, and nothing
can be argued on the motive of agreement from them; but these adventitious political principles have
nevertheless produced effects that have attracted the attention of philosophy, which have established
axioms in the science of politics therefrom, as irrefragable as any in Euclid. It is natural, says Montesquieu,
to a republic to have only a small territory, otherwise it cannot long subsist: in a large one, there are men of
large fortunes, and consequently of less moderation; there are too great deposits to trust in the hands of a
single subject, an ambitious person soon becomes sensible that he may be happy, great, and glorious by
oppressing his fellow citizens, and that he might raise himself to grandeur, on the ruins of his country. In
large republics, the public good is sacrificed to a thousand views, in a small one, the interest of the public is
easily perceived, better understood, and more within the reach of every citizen; abuses have a less extent,
and of course are less protected. He also shows you, that the duration of the republic of Sparta was owing
to its having continued with the same extent of territory after all its wars; and that the ambition of Athens
and Lacedemon to command and direct the union, lost them their liberties, and gave them a monarchy.
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From this picture, what can you promise yourselves, on the score of consolidation of the United States into
one government? Impracticability in the just exercise of it, your freedom insecure, even this form of
government limited in its continuance, the employments of your country disposed of to the opulent, to
whose contumely you will continually be an object. You must risk much, by indispensably placing trusts of
the greatest magnitude, into the hands of individuals whose ambition for power, and aggrandizement, will
oppress and grind you. Where, from the vast extent of your territory, and the complication of interests, the
science of government will become intricate and perplexed, and too mysterious for you to understand and
observe; and by which you are to be conducted into a monarchy, either limited or despotic; the latter, Mr.
Locke remarks, is a government derived from neither nature nor compact.
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Political liberty, the great Montesquieu again observes, consists in security, or at least in the opinion we
have of security; and this security, therefore, or the opinion, is best obtained in moderate governments,
where the mildness of the laws, and the equality of the manners, beget a confidence in the people, which
produces this security, or the opinion. This moderation in governments depends in a great measure on their
limits, connected with their political distribution.
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The extent of many of the states of the Union, is at this time almost too great for the superintendence of a
republican form of government, and must one day or other revolve into more vigorous ones, or by
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separation be reduced into smaller and more useful, as well as moderate ones. You have already observed
the feeble efforts of Massachusetts against their insurgents; with what difficulty did they quell that
insurrection; and is not the province of Maine at this moment on the eve of separation from her? The
reason of these things is, that for the security of the property of the community-in which expressive term
Mr. Locke makes life, liberty, and estate, to consist the wheels of a republic are necessarily slow in their
operation. Hence, in large free republics, the evil sometimes is not only begun, but almost completed,
before they are in a situation to turn the current into a contrary progression. The extremes are also too
remote from the usual seat of government, and the laws, therefore, too feeble to afford protection to all its
parts, and insure domestic tranquility without the aid of another principle. If, therefore, this state [New
York], and that of North Carolina, had an army under their control, they never would have lost Vermont,
and Frankland, nor the state of Massachusetts suffered an insurrection, or the dismemberment of her
fairest district; but the exercise of a principle which would have prevented these things, if we may believe
the experience of ages, would have ended in the destruction of their liberties
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Will this consolidated republic, if established, in its exercise beget such confidence and compliance, among
the citizens of these states, as to do without the aid of a standing army? I deny that it will. The malcontents
in each state, who will not be a few, nor the least important, will be exciting factions against it. The fear of a
dismemberment of some of its parts, and the necessity to enforce the execution Of revenue laws (a fruitful
source of oppression) on the extremes and in the other districts of the government, will incidentally and
necessarily require a permanent force, to be kept on foot. Will not political security, and even the opinion
of it, be extinguished? Can mildness and moderation exist in a government where the primary incident in its
exercise must be force? Will not violence destroy confidence, and can equality subsist where the extent,
policy, and practice of it will naturally lead to make odious distinctions among citizens?
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The people who may compose this national legislature from the southern states, in which, from the
mildness of the climate, the fertility of the soil, and the value of its productions, wealth is rapidly acquired,
and where the same causes naturally lead to luxury, dissipation, and a passion for aristocratic distinction;
where slavery is encouraged, and liberty of course less respected and protected; who know not what it is to
acquire property by their own toil, nor to economize with the savings of industry-will these men, therefore,
be as tenacious of the liberties and interests of the more northern states, where freedom, independence,
industry, equality and frugality are natural to the climate and soil, as men who are your own citizens,
legislating in your own state, under your inspection, and whose manners and fortunes bear a more equal
resemblance to your own?
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It may be suggested, in answer to this, that whoever is a citizen of one state is a citizen of each, and that
therefore he will be as interested in the happiness and interest of all, as the one he is delegated from. But
the argument is fallacious, and, whoever has attended to the history of mankind, and the principles which
bind them together as parents, citizens, or men, will readily perceive it. These principles are, in their
exercise, like a pebble cast on the calm surface of a river-the circles begin in the center, and are small,
active and forcible, but as they depart from that point, they lose their force, and vanish into calmness.
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The strongest principle of union resides within our domestic walls. The ties of the parent exceed that of any
other. As we depart from home, the next general principle of union is amongst citizens of the same state,
where acquaintance, habits, and fortunes, nourish affection, and attachment. Enlarge the circle still further,
and, as citizens of different states, though we acknowledge the same national denomination, we lose in the
ties of acquaintance, habits, and fortunes, and thus by degrees we lessen in our attachments, till, at length,
we no more than acknowledge a sameness of species. Is it, therefore, from certainty like this, reasonable to
believe, that inhabitants of Georgia, or New Hampshire, will have the same obligations towards you as your
own, and preside over your lives, liberties, and property, with the same care and attachment? Intuitive
reason answers in the negative. . . .
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CATO
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AFED18-20: WHAT DOES HISTORY TEACH? (PART I)
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"AN OLD WHIG," taken from The Massachusetts Gazette, November 27, 1787, as reprinted from the
[Philadelphia] Independent Gazetteer.
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. . . . By the proposed constitution, every law, before it passes, is to undergo repeated revisions; and the
constitution of every state in the union provide for the revision of the most trifling laws, either by their
passing through different houses of assembly and senate, or by requiring them to be published for the
consideration of the people. Why then is a constitution which affects all the inhabitants of the United
States-which is to be the foundation of all laws and the source of misery or happiness to one- quarter of the
globe-why is this to be so hastily adopted or rejected, that it cannot admit of a revision? If a law to regulate
highways requires to be leisurely considered and undergo the examination of different bodies of men, one
after another, before it be passed, why is it that the framing of a constitution for the government of a great
people-a work which has been justly considered as the greatest effort of human genius, and which from the
beginning of the world has so often baffled the skill of the wisest men in every age-shall be considered as a
thing to be thrown out, in the first shape which it may happen to assume? Where is the impracticability of a
revision? Cannot the same power which called the late convention call another? Are not the people still
their own masters? If, when the several state conventions come to consider this constitution, they should
not approve of it, in its present form, they may easily apply to congress and state their objections. Congress
may as easily direct the calling another convention, as they did the calling the last. The plan may then be
reconsidered, deliberately received and corrected, so as to meet the approbation of every friend to his
country. A few months only will be necessary for this purpose; and if we consider the magnitude of the
object, we shall deem it well worth a little time and attention. It is Much better to pause and reflect before
hand, than to repent when it is too late; when no peaceable remedy will be left us, and unanimity will be
forever banished. The struggles of the people against a bad government, when it is once fixed, afford but a
gloomy picture in the annals of mankind, They are often unfortunate; they are always destructive of private
and public happiness; but the peaceable consent of a people to establish a free and effective government is
one of the most glorious objects that is ever exhibited on the theater of human affairs. Some, I know, have
objected that another convention will not be likely to agree upon anything-I am far however from being of
that opinion. The public voice calls so loudly for a new constitution that I have no doubt we shall have one
of some sort. My only fear is that the impatience of the people will lead them to accept the first that is
offered them without examining whether it is right or wrong. And after all, if a new convention cannot
agree upon any amendments in the constitution, which is at present proposed, we can still adopt this in its
present form; and all further opposition being vain, it is to be hoped we shall be unanimous in
endeavouring to make the best of it. The experiment is at least worth trying, and I shall be much
astonished, if a new convention called together for the purpose of revising the proposed constitution, do
not greatly reform it ...
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It is beyond a doubt that the new federal constitution, if adopted, will in a great measure destroy, if it does
not totally annihilate, the separate governments of the several states. We shall, in effect, become one great
republic. Every measure of any importance will be continental. What will be the consequence of this? One
thing is evident-that no republic of so great magnitude ever did or ever can exist. But a few years elapsed,
from the time in which ancient Rome extended her dominions beyond the bounds of Italy, until the
downfall of her republic. And all political writers agree, that a republican government can exist only in a
narrow territory. But a confederacy of different republics has, in many instances, existed and flourished for
a long time together. The celebrated Helvetian league, which exists at this moment in full vigor, and with
unimpaired strength, while its origin may be traced to the confines of antiquity, is one among many
examples on this head; and at the same time furnishes an eminent proof of how much less importance it is,
that the constituent parts of a confederacy of republics may be rightly framed, than it is that the
confederacy itself should be rightly organized. For hardly any two of the Swiss cantons have the same form
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of government, and they are almost equally divided in their religious principles, which have so often rent
asunder the firmest establishments. A confederacy of republics must be the establishment in America, or
we must cease altogether to retain the republican form of government. From the moment we become one
great republic, either in form or substance, the period is very shortly removed when we shall sink first into
monarchy, and then into despotism. . . . If the men who at different times have been entrusted to form
plans of government for the world, had been really actuated by no other motives than the public good, the
condition of human nature in all ages would have been widely different from that which has been exhibited
to us in history. In this country perhaps we are possessed of more than our share of political virtue. If we
will exercise a little patience and bestow our best endeavors on the business, I do not think it impossible,
that we may yet form a federal constitution much superior to any form of government which has ever
existed in the world. But whenever this important work shall be accomplished, I venture to pronounce that
it will not be done without a careful attention to the Framing of a bill of rights. . . .
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In different nations, we find different grants or reservations of privileges appealed to in the struggles
between the rulers and the people; many of which, in the different nations of Europe, have long since been
swallowed up and lost by time, or destroyed by the arbitrary hand of power. In England, we find the people,
with the barons at their head, exacting a solemn resignation of their rights from King John, in their
celebrated magna charta, which was many times renewed in Parliament during the reigns of his successors.
The petition of rights was afterwards consented to by Charles I and contained a declaration of the liberties
of the people. The habeas corpus act, after the restoration of Charles 11, the bill of rights, which was
obtained of the Prince and Princess of Orange, on their accession to the throne, and the act of settlement,
at the accession of the Hanover family-are other instances to show the care and watchfulness of that nation
to improve every Opportunity, of the reign of a weak prince or the revolution in their government, to obtain
the most explicit declarations in favor of their liberties. In like manner the people of this country, at the
revolution, having all power in their own hands, in forming the constitutions of the several states, took care
to secure themselves, by bills of rights, so as to prevent as far as possible the encroachments of their future
rulers upon the rights of the people. Some of these rights are said to be unalienable, such as the rights of
conscience. Yet even these have been often invaded, where they have not been carefully secured, by
express and solemn bills and declarations in their favor.
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Before we establish a government, whose acts will be the supreme law of the land, and whose power will
extend to almost every case without exception, we ought carefully to guard ourselves by a bill of rights,
against the invasion of those liberties which it is essential for us to retain, which it is of no real use for
government to deprive us of; but which, in the course of human events, have been too often insulted with
all the wantonness of an idle barbarity.
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FED14: OBJECTIONS TO THE PROPOSED CONSTITUTION FROM EXTENT OF TERRITORY ANSWERED
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From the New York Packet. Friday, November 30, 1787.
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MADISON
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WE HAVE seen the necessity of the Union, as our bulwark against foreign danger, as the conservator of
peace among ourselves, as the guardian of our commerce and other common interests, as the only
substitute for those military establishments which have subverted the liberties of the Old World, and as the
proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of
which alarming symptoms have been betrayed by our own. All that remains, within this branch of our
inquiries, is to take notice of an objection that may be drawn from the great extent of country which the
Union embraces. A few observations on this subject will be the more proper, as it is perceived that the
adversaries of the new Constitution are availing themselves of the prevailing prejudice with regard to the
practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of
those solid objections which they endeavor in vain to find.
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The error which limits republican government to a narrow district has been unfolded and refuted in
preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding
of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. The
true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy,
the people meet and exercise the government in person; in a republic, they assemble and administer it by
their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic
may be extended over a large region.
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To this accidental source of the error may be added the artifice of some celebrated authors, whose writings
have had a great share in forming the modern standard of political opinions. Being subjects either of an
absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of
those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of
the latter the turbulent democracies of ancient Greece and modern Italy. Under the confusion of names, it
has been an easy task to transfer to a republic observations applicable to a democracy only; and among
others, the observation that it can never be established but among a small number of people, living within a
small compass of territory.
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Such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of
the democratic species; and even in modern Europe, to which we owe the great principle of representation,
no example is seen of a government wholly popular, and founded, at the same time, wholly on that
principle. If Europe has the merit of discovering this great mechanical power in government, by the simple
agency of which the will of the largest political body may be concentred, and its force directed to any object
which the public good requires, America can claim the merit of making the discovery the basis of unmixed
and extensive republics. It is only to be lamented that any of her citizens should wish to deprive her of the
additional merit of displaying its full efficacy in the establishment of the comprehensive system now under
her consideration.
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As the natural limit of a democracy is that distance from the central point which will just permit the most
remote citizens to assemble as often as their public functions demand, and will include no greater number
than can join in those functions; so the natural limit of a republic is that distance from the centre which will
barely allow the representatives to meet as often as may be necessary for the administration of public
affairs. Can it be said that the limits of the United States exceed this distance? It will not be said by those
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who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years,
the representatives of the States have been almost continually assembled, and that the members from the
most distant States are not chargeable with greater intermissions of attendance than those from the States
in the neighborhood of Congress.
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That we may form a juster estimate with regard to this interesting subject, let us resort to the actual
dimensions of the Union. The limits, as fixed by the treaty of peace, are: on the east the Atlantic, on the
south the latitude of thirty-one degrees, on the west the Mississippi, and on the north an irregular line
running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. The
southern shore of Lake Erie lies below that latitude. Computing the distance between the thirty-first and
forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirtyone to forty-two degrees, to seven hundred and sixty-four miles and a half. Taking the mean for the
distance, the amount will be eight hundred and sixty-eight miles and three-fourths. The mean distance from
the Atlantic to the Mississippi does not probably exceed seven hundred and fifty miles. On a comparison of
this extent with that of several countries in Europe, the practicability of rendering our system
commensurate to it appears to be demonstrable. It is not a great deal larger than Germany, where a diet
representing the whole empire is continually assembled; or than Poland before the late dismemberment,
where another national diet was the depositary of the supreme power. Passing by France and Spain, we
find that in Great Britain, inferior as it may be in size, the representatives of the northern extremity of the
island have as far to travel to the national council as will be required of those of the most remote parts of
the Union.
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Favorable as this view of the subject may be, some observations remain which will place it in a light still
more satisfactory.
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In the first place it is to be remembered that the general government is not to be charged with the whole
power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which
concern all the members of the republic, but which are not to be attained by the separate provisions of any.
The subordinate governments, which can extend their care to all those other subjects which can be
separately provided for, will retain their due authority and activity. Were it proposed by the plan of the
convention to abolish the governments of the particular States, its adversaries would have some ground for
their objection; though it would not be difficult to show that if they were abolished the general government
would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction.
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A second observation to be made is that the immediate object of the federal Constitution is to secure the
union of the thirteen primitive States, which we know to be practicable; and to add to them such other
States as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally
practicable. The arrangements that may be necessary for those angles and fractions of our territory which
lie on our northwestern frontier, must be left to those whom further discoveries and experience will render
more equal to the task.
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Let it be remarked, in the third place, that the intercourse throughout the Union will be facilitated by new
improvements. Roads will everywhere be shortened, and kept in better order; accommodations for
travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened
throughout, or nearly throughout, the whole extent of the thirteen States. The communication between the
Western and Atlantic districts, and between different parts of each, will be rendered more and more easy
by those numerous canals with which the beneficence of nature has intersected our country, and which art
finds it so little difficult to connect and complete.
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A fourth and still more important consideration is, that as almost every State will, on one side or other, be a
frontier, and will thus find, in regard to its safety, an inducement to make some sacrifices for the sake of the
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general protection; so the States which lie at the greatest distance from the heart of the Union, and which,
of course, may partake least of the ordinary circulation of its benefits, will be at the same time immediately
contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its
strength and resources. It may be inconvenient for Georgia, or the States forming our western or
northeastern borders, to send their representatives to the seat of government; but they would find it more
so to struggle alone against an invading enemy, or even to support alone the whole expense of those
precautions which may be dictated by the neighborhood of continual danger. If they should derive less
benefit, therefore, from the Union in some respects than the less distant States, they will derive greater
benefit from it in other respects, and thus the proper equilibrium will be maintained throughout.
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I submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has
so often marked your decisions will allow them their due weight and effect; and that you will never suffer
difficulties, however formidable in appearance, or however fashionable the error on which they may be
founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would
conduct you. Hearken not to the unnatural voice which tells you that the people of America, knit together
as they are by so many cords of affection, can no longer live together as members of the same family; can
no longer continue the mutual guardians of their mutual happiness; can no longer be fellow citizens of one
great, respectable, and flourishing empire. Hearken not to the voice which petulantly tells you that the form
of government recommended for your adoption is a novelty in the political world; that it has never yet had
a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish.
No, my countrymen, shut your ears against this unhallowed language. Shut your hearts against the poison
which it conveys; the kindred blood which flows in the veins of American citizens, the mingled blood which
they have shed in defense of their sacred rights, consecrate their Union, and excite horror at the idea of
their becoming aliens, rivals, enemies. And if novelties are to be shunned, believe me, the most alarming of
all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces, in
order to preserve our liberties and promote our happiness. But why is the experiment of an extended
republic to be rejected, merely because it may comprise what is new? Is it not the glory of the people of
America, that, whilst they have paid a decent regard to the opinions of former times and other nations,
they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the
suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own
experience? To this manly spirit, posterity will be indebted for the possession, and the world for the
example, of the numerous innovations displayed on the American theatre, in favor of private rights and
public happiness. Had no important step been taken by the leaders of the Revolution for which a precedent
could not be discovered, no government established of which an exact model did not present itself, the
people of the United States might, at this moment have been numbered among the melancholy victims of
misguided councils, must at best have been laboring under the weight of some of those forms which have
crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human
race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in
the annals of human society. They reared the fabrics of governments which have no model on the face of
the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to
improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they
erred most in the structure of the Union, this was the work most difficult to be executed; this is the work
which has been new modelled by the act of your convention, and it is that act on which you are now to
deliberate and to decide.
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Page 89
FED15: THE INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THE UNION
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For the Independent Journal. Saturday, December 1, 1787
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HAMILTON
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To the People of the State of New York.
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IN THE course of the preceding papers, I have endeavored, my fellow citizens, to place before you, in a clear
and convincing light, the importance of Union to your political safety and happiness. I have unfolded to you
a complication of dangers to which you would be exposed, should you permit that sacred knot which binds
the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by
misrepresentation. In the sequel of the inquiry through which I propose to accompany you, the truths
intended to be inculcated will receive further confirmation from facts and arguments hitherto unnoticed. If
the road over which you will still have to pass should in some places appear to you tedious or irksome, you
will recollect that you are in quest of information on a subject the most momentous which can engage the
attention of a free people, that the field through which you have to travel is in itself spacious, and that the
difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset
the way. It will be my aim to remove the obstacles from your progress in as compendious a manner as it can
be done, without sacrificing utility to despatch.
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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.
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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,
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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
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declension. Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The
imbecility of our government even forbids them to treat with us. Our ambassadors abroad are the mere
pageants of mimic sovereignty. Is a violent and unnatural decrease in the value of land a symptom of
national distress? The price of improved land in most parts of the country is much lower than can be
accounted for by the quantity of waste land at market, and can only be fully explained by that want of
private and public confidence, which are so alarmingly prevalent among all ranks, and which have a direct
tendency to depreciate property of every kind. Is private credit the friend and patron of industry? That most
useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still
more from an opinion of insecurity than from the scarcity of money. To shorten an enumeration of
particulars which can afford neither pleasure nor instruction, it may in general be demanded, what
indication is there of national disorder, poverty, and insignificance that could befall a community so
peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of
our public misfortunes?
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This is the melancholy situation to which we have been brought by those very maxims and councils which
would now deter us from adopting the proposed Constitution; and which, not content with having
conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below.
Here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make
a firm stand for our safety, our tranquillity, our dignity, our reputation. Let us at last break the fatal charm
which has too long seduced us from the paths of felicity and prosperity.
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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.
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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.
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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.
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There is nothing absurd or impracticable in the idea of a league or alliance between independent nations
for certain defined purposes precisely stated in a treaty regulating all the details of time, place,
circumstance, and quantity; leaving nothing to future discretion; and depending for its execution on the
good faith of the parties. Compacts of this kind exist among all civilized nations, subject to the usual
vicissitudes of peace and war, of observance and non-observance, as the interests or passions of the
contracting powers dictate. In the early part of the present century there was an epidemical rage in Europe
for this species of compacts, from which the politicians of the times fondly hoped for benefits which were
never realized. With a view to establishing the equilibrium of power and the peace of that part of the world,
all the resources of negotiation were exhausted, and triple and quadruple alliances were formed; but they
were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how
little dependence is to be placed on treaties which have no other sanction than the obligations of good
faith, and which oppose general considerations of peace and justice to the impulse of any immediate
interest or passion.
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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.
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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.
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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.
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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
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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.
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In addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes
those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain
or direct its operations. From this spirit it happens, that in every political association which is formed upon
the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of
eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual
effort in each to fly off from the common centre. This tendency is not difficult to be accounted for. It has its
origin in the love of power. Power controlled or abridged is almost always the rival and enemy of that
power by which it is controlled or abridged. This simple proposition will teach us how little reason there is
to expect, that the persons intrusted with the administration of the affairs of the particular members of a
confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal,
to execute the resolutions or decrees of the general authority. The reverse of this results from the
constitution of human nature.
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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 ill-informed and prejudiced opinion
of every part. Those who have been conversant in the proceedings of popular assemblies; who have seen
how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious
resolutions on important points, will readily conceive how impossible it must be to induce a number of such
assemblies, deliberating at a distance from each other, at different times, and under different impressions,
long to co-operate in the same views and pursuits.
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In our case, the concurrence of thirteen distinct sovereign wills is requisite, under the Confederation, to the
complete execution of every important measure that proceeds from the Union. It has happened as was to
have been foreseen. The measures of the Union have not been executed; the delinquencies of the States
have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the
national government, and brought them to an awful stand. Congress at this time scarcely possess the
means of keeping up the forms of administration, till the States can have time to agree upon a more
substantial substitute for the present shadow of a federal government. Things did not come to this
desperate extremity at once. The causes which have been specified produced at first only unequal and
disproportionate degrees of compliance with the requisitions of the Union. The greater deficiencies of some
States furnished the pretext of example and the temptation of interest to the complying, or to the least
delinquent States. Why should we do more in proportion than those who are embarked with us in the same
political voyage? Why should we consent to bear more than our proper share of the common burden?
These were suggestions which human selfishness could not withstand, and which even speculative men,
who looked forward to remote consequences, could not, without hesitation, combat. Each State, yielding to
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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.
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FED16: THE SAME SUBJECT CONTINUED (THE INSUFFICIENCY
PRESERVE THE UNION)
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From the New York Packet. Tuesday, December 4, 1787.
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HAMILTON
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OF THE
PRESENT CONFEDERATION
TO
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THE tendency of the principle of legislation for States, or communities, in their political capacities, as it has
been exemplified by the experiment we have made of it, is equally attested by the events which have
befallen all other governments of the confederate kind, of which we have any account, in exact proportion
to its prevalence in those systems. The confirmations of this fact will be worthy of a distinct and particular
examination. I shall content myself with barely observing here, that of all the confederacies of antiquity,
which history has handed down to us, the Lycian and Achaean leagues, as far as there remain vestiges of
them, appear to have been most free from the fetters of that mistaken principle, and were accordingly
those which have best deserved, and have most liberally received, the applauding suffrages of political
writers.
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This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen
that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever
they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war.
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It remains to inquire how far so odious an engine of government, in its application to us, would even be
capable of answering its end. If there should not be a large army constantly at the disposal of the national
government it would either not be able to employ force at all, or, when this could be done, it would amount
to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest
combination would be most likely to prevail, whether it consisted of those who supported or of those who
resisted the general authority. It would rarely happen that the delinquency to be redressed would be
confined to a single member, and if there were more than one who had neglected their duty, similarity of
situation would induce them to unite for common defense. Independent of this motive of sympathy, if a
large and influential State should happen to be the aggressing member, it would commonly have weight
enough with its neighbors to win over some of them as associates to its cause. Specious arguments of
danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party
could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the
good-will, even of those States which were not chargeable with any violation or omission of duty. This
would be the more likely to take place, as the delinquencies of the larger members might be expected
sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all
external control upon their designs of personal aggrandizement; the better to effect which it is presumable
they would tamper beforehand with leading individuals in the adjacent States. If associates could not be
found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to
encouraging the dissensions of a Confederacy, from the firm union of which they had so much to fear.
When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions of
wounded pride, the instigations of irritated resentment, would be apt to carry the States against which the
arms of the Union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace
of submission. The first war of this kind would probably terminate in a dissolution of the Union.
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This may be considered as the violent death of the Confederacy. Its more natural death is what we now
seem to be on the point of experiencing, if the federal system be not speedily renovated in a more
substantial form. It is not probable, considering the genius of this country, that the complying States would
often be inclined to support the authority of the Union by engaging in a war against the non-complying
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States. They would always be more ready to pursue the milder course of putting themselves upon an equal
footing with the delinquent members by an imitation of their example. And the guilt of all would thus
become the security of all. Our past experience has exhibited the operation of this spirit in its full light.
There would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be
employed. In the article of pecuniary contribution, which would be the most usual source of delinquency, it
would often be impossible to decide whether it had proceeded from disinclination or inability. The pretense
of the latter would always be at hand. And the case must be very flagrant in which its fallacy could be
detected with sufficient certainty to justify the harsh expedient of compulsion. It is easy to see that this
problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of
partiality, and of oppression, in the majority that happened to prevail in the national council.
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It seems to require no pains to prove that the States ought not to prefer a national Constitution which could
only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary
requisitions or decrees of the government. And yet this is the plain alternative involved by those who wish
to deny it the power of extending its operations to individuals. Such a scheme, if practicable at all, would
instantly degenerate into a military despotism; but it will be found in every light impracticable. The
resources of the Union would not be equal to the maintenance of an army considerable enough to confine
the larger States within the limits of their duty; nor would the means ever be furnished of forming such an
army in the first instance. Whoever considers the populousness and strength of several of these States
singly at the present juncture, and looks forward to what they will become, even at the distance of half a
century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by
laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to
them in the same capacities. A project of this kind is little less romantic than the monster-taming spirit
which is attributed to the fabulous heroes and demi-gods of antiquity.
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Even in those confederacies which have been composed of members smaller than many of our counties,
the principle of legislation for sovereign States, supported by military coercion, has never been found
effectual. It has rarely been attempted to be employed, but against the weaker members; and in most
instances attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which
one half of the confederacy has displayed its banners against the other half.
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The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate
to construct a federal government capable of regulating the common concerns and preserving the general
tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle
contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the
citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the
arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must
be manifested through the medium of the courts of justice. The government of the Union, like that of each
State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its
support those passions which have the strongest influence upon the human heart. It must, in short, possess
all the means, and have aright to resort to all the methods, of executing the powers with which it is
intrusted, that are possessed and exercised by the government of the particular States.
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To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the
Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of
force, with the necessity of which the opposite scheme is reproached.
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The plausibility of this objection will vanish the moment we advert to the essential difference between a
mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures
be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or TO ACT EVASIVELY,
and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial
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provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the
Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of
some temporary convenience, exemption, or advantage.
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But if the execution of the laws of the national government should not require the intervention of the State
legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular
governments could not interrupt their progress without an open and violent exertion of an unconstitutional
power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a
manner as would leave no doubt that they had encroached on the national rights. An experiment of this
nature would always be hazardous in the face of a constitution in any degree competent to its own defense,
and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of
authority. The success of it would require not merely a factious majority in the legislature, but the
concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a
conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to
the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of
their State representatives, they, as the natural guardians of the Constitution, would throw their weight
into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not
often be made with levity or rashness, because they could seldom be made without danger to the authors,
unless in cases of a tyrannical exercise of the federal authority.
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If opposition to the national government should arise from the disorderly conduct of refractory or seditious
individuals, it could be overcome by the same means which are daily employed against the same evil under
the State governments. The magistracy, being equally the ministers of the law of the land, from whatever
source it might emanate, would doubtless be as ready to guard the national as the local regulations from
the inroads of private licentiousness. As to those partial commotions and insurrections, which sometimes
disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional illhumors
that do not infect the great body of the community the general government could command more
extensive resources for the suppression of disturbances of that kind than would be in the power of any
single member. And as to those mortal feuds which, in certain conjunctures, spread a conflagration through
a whole nation, or through a very large proportion of it, proceeding either from weighty causes of
discontent given by the government or from the contagion of some violent popular paroxysm, they do not
fall within any ordinary rules of calculation. When they happen, they commonly amount to revolutions and
dismemberments of empire. No form of government can always either avoid or control them. It is in vain to
hope to guard against events too mighty for human foresight or precaution, and it would be idle to object
to a government because it could not perform impossibilities.
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Page 97
PRESERVE THE UNION)
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For the Independent Journal. Wednesday, December 5, 1787
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HAMILTON
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OF THE
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AN OBJECTION, of a nature different from that which has been stated and answered, in my last address,
may perhaps be likewise urged against the principle of legislation for the individual citizens of America. It
may be said that it would tend to render the government of the Union too powerful, and to enable it to
absorb those residuary authorities, which it might be judged proper to leave with the States for local
purposes. Allowing the utmost latitude to the love of power which any reasonable man can require, I
confess I am at a loss to discover what temptation the persons intrusted with the administration of the
general government could ever feel to divest the States of the authorities of that description. The
regulation of the mere domestic police of a State appears to me to hold out slender allurements to
ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms
for minds governed by that passion; and all the powers necessary to those objects ought, in the first
instance, to be lodged in the national depository. The administration of private justice between the citizens
of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things,
in short, which are proper to be provided for by local legislation, can never be desirable cares of a general
jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp
the powers with which they are connected; because the attempt to exercise those powers would be as
troublesome as it would be nugatory; and the possession of them, for that reason, would contribute
nothing to the dignity, to the importance, or to the splendor of the national government.
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But let it be admitted, for argument's sake, that mere wantonness and lust of domination would be
sufficient to beget that disposition; still it may be safely affirmed, that the sense of the constituent body of
the national representatives, or, in other words, the people of the several States, would control the
indulgence of so extravagant an appetite. It will always be far more easy for the State governments to
encroach upon the national authorities than for the national government to encroach upon the State
authorities. The proof of this proposition turns upon the greater degree of influence which the State
governments if they administer their affairs with uprightness and prudence, will generally possess over the
people; a circumstance which at the same time teaches us that there is an inherent and intrinsic weakness
in all federal constitutions; and that too much pains cannot be taken in their organization, to give them all
the force which is compatible with the principles of liberty.
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The superiority of influence in favor of the particular governments would result partly from the diffusive
construction of the national government, but chiefly from the nature of the objects to which the attention
of the State administrations would be directed.
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It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or
diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his
neighborhood, to his neighborhood than to the community at large, the people of each State would be apt
to feel a stronger bias towards their local governments than towards the government of the Union; unless
the force of that principle should be destroyed by a much better administration of the latter.
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This strong propensity of the human heart would find powerful auxiliaries in the objects of State regulation.
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The variety of more minute interests, which will necessarily fall under the superintendence of the local
administrations, and which will form so many rivulets of influence, running through every part of the
society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate
for the instruction it might afford.
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There is one transcendant advantage belonging to the province of the State governments, which alone
suffices to place the matter in a clear and satisfactory light,—I mean the ordinary administration of criminal
and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of
popular obedience and attachment. It is that which, being the immediate and visible guardian of life and
property, having its benefits and its terrors in constant activity before the public eye, regulating all those
personal interests and familiar concerns to which the sensibility of individuals is more immediately awake,
contributes, more than any other circumstance, to impressing upon the minds of the people, affection,
esteem, and reverence towards the government. This great cement of society, which will diffuse itself
almost wholly through the channels of the particular governments, independent of all other causes of
influence, would insure them so decided an empire over their respective citizens as to render them at all
times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union.
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The operations of the national government, on the other hand, falling less immediately under the
observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended
to by speculative men. Relating to more general interests, they will be less apt to come home to the feelings
of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active
sentiment of attachment.
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The reasoning on this head has been abundantly exemplified by the experience of all federal constitutions
with which we are acquainted, and of all others which have borne the least analogy to them.
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Though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the
nature of that species of association. There was a common head, chieftain, or sovereign, whose authority
extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large
portions of land allotted to them, and numerous trains of INFERIOR vassals or retainers, who occupied and
cultivated that land upon the tenure of fealty or obedience, to the persons of whom they held it. Each
principal vassal was a kind of sovereign, within his particular demesnes. The consequences of this situation
were a continual opposition to authority of the sovereign, and frequent wars between the great barons or
chief feudatories themselves. The power of the head of the nation was commonly too weak, either to
preserve the public peace, or to protect the people against the oppressions of their immediate lords. This
period of European affairs is emphatically styled by historians, the times of feudal anarchy.
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When the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he
would acquire a personal weight and influence, which answered, for the time, the purpose of a more
regular authority. But in general, the power of the barons triumphed over that of the prince; and in many
instances his dominion was entirely thrown off, and the great fiefs were erected into independent
principalities or States. In those instances in which the monarch finally prevailed over his vassals, his success
was chiefly owing to the tyranny of those vassals over their dependents. The barons, or nobles, equally the
enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both;
till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy.
Had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers
and followers, the contests between them and the prince must almost always have ended in their favor,
and in the abridgment or subversion of the royal authority.
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This is not an assertion founded merely in speculation or conjecture. Among other illustrations of its truth
which might be cited, Scotland will furnish a cogent example. The spirit of clanship which was, at an early
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day, introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of
kindred, rendered the aristocracy a constant overmatch for the power of the monarch, till the incorporation
with England subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination
which a more rational and more energetic system of civil polity had previously established in the latter
kingdom.
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The separate governments in a confederacy may aptly be compared with the feudal baronies; with this
advantage in their favor, that from the reasons already explained, they will generally possess the
confidence and good-will of the people, and with so important a support, will be able effectually to oppose
all encroachments of the national government. It will be well if they are not able to counteract its legitimate
and necessary authority. The points of similitude consist in the rivalship of power, applicable to both, and in
the CONCENTRATION of large portions of the strength of the community into particular DEPOSITORIES, in
one case at the disposal of individuals, in the other case at the disposal of political bodies.
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A concise review of the events that have attended confederate governments will further illustrate this
important doctrine; an inattention to which has been the great source of our political mistakes, and has
given our jealousy a direction to the wrong side. This review shall form the subject of some ensuing papers.
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AFED15: RHODE ISLAND IS RIGHT!
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This essay appeared in The Massachusetts Gazette, December 7, 1787, as reprinted From The Freeman's
Journal; (Or, The North-American Intelligencer?)
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The abuse which has been thrown upon the state of Rhode Island seems to be greatly unmerited. Popular
favor is variable, and those who are now despised and insulted may soon change situations with the
present idols of the people. Rhode Island has out done even Pennsylvania in the glorious work of freeing
the Negroes in this country, without which the patriotism of some states appears ridiculous. The General
Assembly of the state of Rhode Island has prevented the further importation of Negroes, and have made a
law by which all blacks born in that state after March, 1784, are absolutely and at once free.
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They have fully complied with the recommendations of Congress in regard to the late treaty of peace with
Great Britain, and have passed an act declaring it to be the law of the land. They have never refused their
quota of taxes demanded by Congress, excepting the five per cent impost, which they considered as a
dangerous tax, and for which at present there is perhaps no great necessity, as the western territory, of
which a part has very lately been sold at a considerable price, may soon produce an immense revenue; and,
in the interim, Congress may raise in the old manner the taxes which shall be found necessary for the
support of the government.
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The state of Rhode Island refused to send delegates to the Federal Convention, and the event has
manifested that their refusal was a happy one as the new constitution, which the Convention has proposed
to us, is an elective monarchy, which is proverbially the worst government. This new government would
have been supported at a vast expense, by which our taxes-the right of which is solely vested in Congress,
(a circumstance which manifests that the various states of the union will be merely corporations) -- would
be doubled or trebled. The liberty of the press is not stipulated for, and therefore may be invaded at
pleasure. The supreme continental court is to have, almost in every case, "appellate jurisdiction, both as to
law and fact," which signifies, if there is any meaning in words, the setting aside the trial by jury. Congress
will have the power of guaranteeing to every state a right to import Negroes for twenty one years, by which
some of the states, who have now declined that iniquitous traffic, may re-enter into it-for the private laws
of every state are to submit to the superior jurisdiction of Congress. A standing army is to be kept on foot,
by which the vicious, the sycophantick, and the time- serving will be exalted, and the brave, the patriotic,
and the virtuous will be depressed.
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The writer, therefore, thinks it the part of wisdom to abide, like the state of Rhode Island, by the old articles
of confederation, which, if re-examined with attention, we shall find worthy of great regard; that we should
give high praise to the manly and public spirited sixteen members, who lately seceded from our house of
Assembly [in Pennsylvania]; and that we should all impress with great care, this truth on our minds-That it is
very easy to change a free government into an arbitrary one, but that it is very difficult to convert tyranny
into freedom.
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OF THE
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For the New York Packet. Friday, December 7, 1787
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MADISON, with HAMILTON
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AMONG the confederacies of antiquity, the most considerable was that of the Grecian republics, associated
under the Amphictyonic council. From the best accounts transmitted of this celebrated institution, it bore a
very instructive analogy to the present Confederation of the American States.
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The members retained the character of independent and sovereign states, and had equal votes in the
federal council. This council had a general authority to propose and resolve whatever it judged necessary
for the common welfare of Greece; to declare and carry on war; to decide, in the last resort, all
controversies between the members; to fine the aggressing party; to employ the whole force of the
confederacy against the disobedient; to admit new members. The Amphictyons were the guardians of
religion, and of the immense riches belonging to the temple of Delphos, where they had the right of
jurisdiction in controversies between the inhabitants and those who came to consult the oracle. As a
further provision for the efficacy of the federal powers, they took an oath mutually to defend and protect
the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of
the temple.
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In theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes. In
several material instances, they exceed the powers enumerated in the articles of confederation. The
Amphictyons had in their hands the superstition of the times, one of the principal engines by which
government was then maintained; they had a declared authority to use coercion against refractory cities,
and were bound by oath to exert this authority on the necessary occasions.
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Very different, nevertheless, was the experiment from the theory. The powers, like those of the present
Congress, were administered by deputies appointed wholly by the cities in their political capacities; and
exercised over them in the same capacities. Hence the weakness, the disorders, and finally the destruction
of the confederacy. The more powerful members, instead of being kept in awe and subordination,
tyrannized successively over all the rest. Athens, as we learn from Demosthenes, was the arbiter of Greece
seventy-three years. The Lacedaemonians next governed it twenty-nine years; at a subsequent period, after
the battle of Leuctra, the Thebans had their turn of domination.
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It happened but too often, according to Plutarch, that the deputies of the strongest cities awed and
corrupted those of the weaker; and that judgment went in favor of the most powerful party.
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Even in the midst of defensive and dangerous wars with Persia and Macedon, the members never acted in
concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. The
intervals of foreign war were filled up by domestic vicissitudes convulsions, and carnage.
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After the conclusion of the war with Xerxes, it appears that the Lacedaemonians required that a number of
the cities should be turned out of the confederacy for the unfaithful part they had acted. The Athenians,
finding that the Lacedaemonians would lose fewer partisans by such a measure than themselves, and would
become masters of the public deliberations, vigorously opposed and defeated the attempt. This piece of
history proves at once the inefficiency of the union, the ambition and jealousy of its most powerful
members, and the dependent and degraded condition of the rest. The smaller members, though entitled by
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the theory of their system to revolve in equal pride and majesty around the common center, had become,
in fact, satellites of the orbs of primary magnitude.
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Had the Greeks, says the Abbe Milot, been as wise as they were courageous, they would have been
admonished by experience of the necessity of a closer union, and would have availed themselves of the
peace which followed their success against the Persian arms, to establish such a reformation. Instead of this
obvious policy, Athens and Sparta, inflated with the victories and the glory they had acquired, became first
rivals and then enemies; and did each other infinitely more mischief than they had suffered from Xerxes.
Their mutual jealousies, fears, hatreds, and injuries ended in the celebrated Peloponnesian war; which itself
ended in the ruin and slavery of the Athenians who had begun it.
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As a weak government, when not at war, is ever agitated by internal dissentions, so these never fail to bring
on fresh calamities from abroad. The Phocians having ploughed up some consecrated ground belonging to
the temple of Apollo, the Amphictyonic council, according to the superstition of the age, imposed a fine on
the sacrilegious offenders. The Phocians, being abetted by Athens and Sparta, refused to submit to the
decree. The Thebans, with others of the cities, undertook to maintain the authority of the Amphictyons,
and to avenge the violated god. The latter, being the weaker party, invited the assistance of Philip of
Macedon, who had secretly fostered the contest. Philip gladly seized the opportunity of executing the
designs he had long planned against the liberties of Greece. By his intrigues and bribes he won over to his
interests the popular leaders of several cities; by their influence and votes, gained admission into the
Amphictyonic council; and by his arts and his arms, made himself master of the confederacy.
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Such were the consequences of the fallacious principle on which this interesting establishment was
founded. Had Greece, says a judicious observer on her fate, been united by a stricter confederation, and
persevered in her union, she would never have worn the chains of Macedon; and might have proved a
barrier to the vast projects of Rome.
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The Achaean league, as it is called, was another society of Grecian republics, which supplies us with
valuable instruction.
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The Union here was far more intimate, and its organization much wiser, than in the preceding instance. It
will accordingly appear, that though not exempt from a similar catastrophe, it by no means equally
deserved it.
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The cities composing this league retained their municipal jurisdiction, appointed their own officers, and
enjoyed a perfect equality. The senate, in which they were represented, had the sole and exclusive right of
peace and war; of sending and receiving ambassadors; of entering into treaties and alliances; of appointing
a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and
consent of ten of the senators, not only administered the government in the recess of the senate, but had a
great share in its deliberations, when assembled. According to the primitive constitution, there were two
praetors associated in the administration; but on trial a single one was preferred.
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It appears that the cities had all the same laws and customs, the same weights and measures, and the same
money. But how far this effect proceeded from the authority of the federal council is left in uncertainty. It is
said only that the cities were in a manner compelled to receive the same laws and usages. When
Lacedaemon was brought into the league by Philopoemen, it was attended with an abolition of the
institutions and laws of Lycurgus, and an adoption of those of the Achaeans. The Amphictyonic
confederacy, of which she had been a member, left her in the full exercise of her government and her
legislation. This circumstance alone proves a very material difference in the genius of the two systems.
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It is much to be regretted that such imperfect monuments remain of this curious political fabric. Could its
interior structure and regular operation be ascertained, it is probable that more light would be thrown by it
on the science of federal government, than by any of the like experiments with which we are acquainted.
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One important fact seems to be witnessed by all the historians who take notice of Achaean affairs. It is, that
as well after the renovation of the league by Aratus, as before its dissolution by the arts of Macedon, there
was infinitely more of moderation and justice in the administration of its government, and less of violence
and sedition in the people, than were to be found in any of the cities exercising SINGLY all the prerogatives
of sovereignty. The Abbe Mably, in his observations on Greece, says that the popular government, which
was so tempestuous elsewhere, caused no disorders in the members of the Achaean republic, BECAUSE IT
WAS THERE TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY.
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We are not to conclude too hastily, however, that faction did not, in a certain degree, agitate the particular
cities; much less that a due subordination and harmony reigned in the general system. The contrary is
sufficiently displayed in the vicissitudes and fate of the republic.
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Whilst the Amphictyonic confederacy remained, that of the Achaeans, which comprehended the less
important cities only, made little figure on the theatre of Greece. When the former became a victim to
Macedon, the latter was spared by the policy of Philip and Alexander. Under the successors of these
princes, however, a different policy prevailed. The arts of division were practiced among the Achaeans.
Each city was seduced into a separate interest; the union was dissolved. Some of the cities fell under the
tyranny of Macedonian garrisons; others under that of usurpers springing out of their own confusions.
Shame and oppression erelong awaken their love of liberty. A few cities reunited. Their example was
followed by others, as opportunities were found of cutting off their tyrants. The league soon embraced
almost the whole Peloponnesus. Macedon saw its progress; but was hindered by internal dissensions from
stopping it. All Greece caught the enthusiasm and seemed ready to unite in one confederacy, when the
jealousy and envy in Sparta and Athens, of the rising glory of the Achaeans, threw a fatal damp on the
enterprise. The dread of the Macedonian power induced the league to court the alliance of the Kings of
Egypt and Syria, who, as successors of Alexander, were rivals of the king of Macedon. This policy was
defeated by Cleomenes, king of Sparta, who was led by his ambition to make an unprovoked attack on his
neighbors, the Achaeans, and who, as an enemy to Macedon, had interest enough with the Egyptian and
Syrian princes to effect a breach of their engagements with the league.
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The Achaeans were now reduced to the dilemma of submitting to Cleomenes, or of supplicating the aid of
Macedon, its former oppressor. The latter expedient was adopted. The contests of the Greeks always
afforded a pleasing opportunity to that powerful neighbor of intermeddling in their affairs. A Macedonian
army quickly appeared. Cleomenes was vanquished. The Achaeans soon experienced, as often happens,
that a victorious and powerful ally is but another name for a master. All that their most abject compliances
could obtain from him was a toleration of the exercise of their laws. Philip, who was now on the throne of
Macedon, soon provoked by his tyrannies, fresh combinations among the Greeks. The Achaeans, though
weakened by internal dissensions and by the revolt of Messene, one of its members, being joined by the
AEtolians and Athenians, erected the standard of opposition. Finding themselves, though thus supported,
unequal to the undertaking, they once more had recourse to the dangerous expedient of introducing the
succor of foreign arms. The Romans, to whom the invitation was made, eagerly embraced it. Philip was
conquered; Macedon subdued. A new crisis ensued to the league. Dissensions broke out among it
members. These the Romans fostered. Callicrates and other popular leaders became mercenary
instruments for inveigling their countrymen. The more effectually to nourish discord and disorder the
Romans had, to the astonishment of those who confided in their sincerity, already proclaimed universal
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liberty throughout Greece. With the same insidious views, they now seduced the members from the
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This was but another name more specious for the independence of the members on the federal head.
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league, by representing to their pride the violation it committed on their sovereignty. By these arts this
union, the last hope of Greece, the last hope of ancient liberty, was torn into pieces; and such imbecility
and distraction introduced, that the arms of Rome found little difficulty in completing the ruin which their
arts had commenced. The Achaeans were cut to pieces, and Achaia loaded with chains, under which it is
groaning at this hour.
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I have thought it not superfluous to give the outlines of this important portion of history; both because it
teaches more than one lesson, and because, as a supplement to the outlines of the Achaean constitution, it
emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to
tyranny in the head.
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THE examples of ancient confederacies, cited in my last paper, have not exhausted the source of
experimental instruction on this subject. There are existing institutions, founded on a similar principle,
which merit particular consideration. The first which presents itself is the Germanic body.
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In the early ages of Christianity, Germany was occupied by seven distinct nations, who had no common
chief. The Franks, one of the number, having conquered the Gauls, established the kingdom which has
taken its name from them. In the ninth century Charlemagne, its warlike monarch, carried his victorious
arms in every direction; and Germany became a part of his vast dominions. On the dismemberment, which
took place under his sons, this part was erected into a separate and independent empire. Charlemagne and
his immediate descendants possessed the reality, as well as the ensigns and dignity of imperial power. But
the principal vassals, whose fiefs had become hereditary, and who composed the national diets which
Charlemagne had not abolished, gradually threw off the yoke and advanced to sovereign jurisdiction and
independence. The force of imperial sovereignty was insufficient to restrain such powerful dependants; or
to preserve the unity and tranquillity of the empire. The most furious private wars, accompanied with every
species of calamity, were carried on between the different princes and states. The imperial authority,
unable to maintain the public order, declined by degrees till it was almost extinct in the anarchy, which
agitated the long interval between the death of the last emperor of the Suabian, and the accession of the
first emperor of the Austrian lines. In the eleventh century the emperors enjoyed full sovereignty: In the
fifteenth they had little more than the symbols and decorations of power.
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Out of this feudal system, which has itself many of the important features of a confederacy, has grown the
federal system which constitutes the Germanic empire. Its powers are vested in a diet representing the
component members of the confederacy; in the emperor, who is the executive magistrate, with a negative
on the decrees of the diet; and in the imperial chamber and the aulic council, two judiciary tribunals having
supreme jurisdiction in controversies which concern the empire, or which happen among its members.
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The diet possesses the general power of legislating for the empire; of making war and peace; contracting
alliances; assessing quotas of troops and money; constructing fortresses; regulating coin; admitting new
members; and subjecting disobedient members to the ban of the empire, by which the party is degraded
from his sovereign rights and his possessions forfeited. The members of the confederacy are expressly
restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their
mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from
doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. And
the ban is denounced against such as shall violate any of these restrictions. The members of the diet, as
such, are subject in all cases to be judged by the emperor and diet, and in their private capacities by the
aulic council and imperial chamber.
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The prerogatives of the emperor are numerous. The most important of them are: his exclusive right to
make propositions to the diet; to negative its resolutions; to name ambassadors; to confer dignities and
titles; to fill vacant electorates; to found universities; to grant privileges not injurious to the states of the
empire; to receive and apply the public revenues; and generally to watch over the public safety. In certain
cases, the electors form a council to him. In quality of emperor, he possesses no territory within the empire,
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nor receives any revenue for his support. But his revenue and dominions, in other qualities, constitute him
one of the most powerful princes in Europe.
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From such a parade of constitutional powers, in the representatives and head of this confederacy, the
natural supposition would be, that it must form an exception to the general character which belongs to its
kindred systems. Nothing would be further from the reality. The fundamental principle on which it rests,
that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that the
laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own
members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels.
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The history of Germany is a history of wars between the emperor and the princes and states; of wars
among the princes and states themselves; of the licentiousness of the strong, and the oppression of the
weak; of foreign intrusions, and foreign intrigues; of requisitions of men and money disregarded, or partially
complied with; of attempts to enforce them, altogether abortive, or attended with slaughter and
desolation, involving the innocent with the guilty; of general imbecility, confusion, and misery.
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In the sixteenth century, the emperor, with one part of the empire on his side, was seen engaged against
the other princes and states. In one of the conflicts, the emperor himself was put to flight, and very near
being made prisoner by the elector of Saxony. The late king of Prussia was more than once pitted against
his imperial sovereign; and commonly proved an overmatch for him. Controversies and wars among the
members themselves have been so common, that the German annals are crowded with the bloody pages
which describe them. Previous to the peace of Westphalia, Germany was desolated by a war of thirty years,
in which the emperor, with one half of the empire, was on one side, and Sweden, with the other half, on
the opposite side. Peace was at length negotiated, and dictated by foreign powers; and the articles of it, to
which foreign powers are parties, made a fundamental part of the Germanic constitution.
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If the nation happens, on any emergency, to be more united by the necessity of self-defense, its situation is
still deplorable. Military preparations must be preceded by so many tedious discussions, arising from the
jealousies, pride, separate views, and clashing pretensions of sovereign bodies, that before the diet can
settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are
retiring into winter quarters.
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The small body of national troops, which has been judged necessary in time of peace, is defectively kept up,
badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to
the treasury.
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The impossibility of maintaining order and dispensing justice among these sovereign subjects, produced the
experiment of dividing the empire into nine or ten circles or districts; of giving them an interior
organization, and of charging them with the military execution of the laws against delinquent and
contumacious members. This experiment has only served to demonstrate more fully the radical vice of the
constitution. Each circle is the miniature picture of the deformities of this political monster. They either fail
to execute their commissions, or they do it with all the devastation and carnage of civil war. Sometimes
whole circles are defaulters; and then they increase the mischief which they were instituted to remedy.
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We may form some judgment of this scheme of military coercion from a sample given by Thuanus. In
Donawerth, a free and imperial city of the circle of Suabia, the Abbe de St. Croix enjoyed certain immunities
which had been reserved to him. In the exercise of these, on some public occasions, outrages were
committed on him by the people of the city. The consequence was that the city was put under the ban of
the empire, and the Duke of Bavaria, though director of another circle, obtained an appointment to enforce
it. He soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion, as he
had secretly intended from the beginning, to revive an antiquated claim, on the pretext that his ancestors
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had suffered the place to be dismembered from his territory, he took possession of it in his own name,
disarmed, and punished the inhabitants, and reannexed the city to his domains.
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It may be asked, perhaps, what has so long kept this disjointed machine from falling entirely to pieces? The
answer is obvious: The weakness of most of the members, who are unwilling to expose themselves to the
mercy of foreign powers; the weakness of most of the principal members, compared with the formidable
powers all around them; the vast weight and influence which the emperor derives from his separate and
hereditary dominions; and the interest he feels in preserving a system with which his family pride is
connected, and which constitutes him the first prince in Europe;—these causes support a feeble and
precarious Union; whilst the repellant quality, incident to the nature of sovereignty, and which time
continually strengthens, prevents any reform whatever, founded on a proper consolidation. Nor is it to be
imagined, if this obstacle could be surmounted, that the neighboring powers would suffer a revolution to
take place which would give to the empire the force and preeminence to which it is entitled. Foreign
nations have long considered themselves as interested in the changes made by events in this constitution;
and have, on various occasions, betrayed their policy of perpetuating its anarchy and weakness.
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If more direct examples were wanting, Poland, as a government over local sovereigns, might not improperly
be taken notice of. Nor could any proof more striking be given of the calamities flowing from such
institutions. Equally unfit for self-government and self-defense, it has long been at the mercy of its powerful
neighbors; who have lately had the mercy to disburden it of one third of its people and territories.
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The connection among the Swiss cantons scarcely amounts to a confederacy; though it is sometimes cited
as an instance of the stability of such institutions.
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They have no common treasury; no common troops even in war; no common coin; no common judicatory;
nor any other common mark of sovereignty.
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They are kept together by the peculiarity of their topographical position; by their individual weakness and
insignificancy; by the fear of powerful neighbors, to one of which they were formerly subject; by the few
sources of contention among a people of such simple and homogeneous manners; by their joint interest in
their dependent possessions; by the mutual aid they stand in need of, for suppressing insurrections and
rebellions, an aid expressly stipulated and often required and afforded; and by the necessity of some
regular and permanent provision for accommodating disputes among the cantons. The provision is, that the
parties at variance shall each choose four judges out of the neutral cantons, who, in case of disagreement,
choose an umpire. This tribunal, under an oath of impartiality, pronounces definitive sentence, which all the
cantons are bound to enforce. The competency of this regulation may be estimated by a clause in their
treaty of 1683, with Victor Amadeus of Savoy; in which he obliges himself to interpose as mediator in
disputes between the cantons, and to employ force, if necessary, against the contumacious party.
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So far as the peculiarity of their case will admit of comparison with that of the United States, it serves to
confirm the principle intended to be established. Whatever efficacy the union may have had in ordinary
cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed.
The controversies on the subject of religion, which in three instances have kindled violent and bloody
contests, may be said, in fact, to have severed the league. The Protestant and Catholic cantons have since
had their separate diets, where all the most important concerns are adjusted, and which have left the
general diet little other business than to take care of the common bailages.
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Pfeffel, "Nouvel Abrég. Chronol. de l'Hist., etc., d'Allemagne," says the pretext was to indemnify himself
for the expense of the expedition.
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That separation had another consequence, which merits attention. It produced opposite alliances with
foreign powers: of Berne, at the head of the Protestant association, with the United Provinces; and of
Luzerne, at the head of the Catholic association, with France.
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THE United Netherlands are a confederacy of republics, or rather of aristocracies of a very remarkable
texture, yet confirming all the lessons derived from those which we have already reviewed.
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The union is composed of seven coequal and sovereign states, and each state or province is a composition
of equal and independent cities. In all important cases, not only the provinces but the cities must be
unanimous.
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The sovereignty of the Union is represented by the States-General, consisting usually of about fifty deputies
appointed by the provinces. They hold their seats, some for life, some for six, three, and one years; from
two provinces they continue in appointment during pleasure.
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The States-General have authority to enter into treaties and alliances; to make war and peace; to raise
armies and equip fleets; to ascertain quotas and demand contributions. In all these cases, however,
unanimity and the sanction of their constituents are requisite. They have authority to appoint and receive
ambassadors; to execute treaties and alliances already formed; to provide for the collection of duties on
imports and exports; to regulate the mint, with a saving to the provincial rights; to govern as sovereigns the
dependent territories. The provinces are restrained, unless with the general consent, from entering into
foreign treaties; from establishing imposts injurious to others, or charging their neighbors with higher
duties than their own subjects. A council of state, a chamber of accounts, with five colleges of admiralty, aid
and fortify the federal administration.
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The executive magistrate of the union is the stadtholder, who is now an hereditary prince. His principal
weight and influence in the republic are derived from this independent title; from his great patrimonial
estates; from his family connections with some of the chief potentates of Europe; and, more than all,
perhaps, from his being stadtholder in the several provinces, as well as for the union; in which provincial
quality he has the appointment of town magistrates under certain regulations, executes provincial decrees,
presides when he pleases in the provincial tribunals, and has throughout the power of pardon.
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As stadtholder of the union, he has, however, considerable prerogatives.
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In his political capacity he has authority to settle disputes between the provinces, when other methods fail;
to assist at the deliberations of the States-General, and at their particular conferences; to give audiences to
foreign ambassadors, and to keep agents for his particular affairs at foreign courts.
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In his military capacity he commands the federal troops, provides for garrisons, and in general regulates
military affairs; disposes of all appointments, from colonels to ensigns, and of the governments and posts of
fortified towns.
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In his marine capacity he is admiral-general, and superintends and directs every thing relative to naval
forces and other naval affairs; presides in the admiralties in person or by proxy; appoints lieutenantadmirals and other officers; and establishes councils of war, whose sentences are not executed till he
approves them.
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His revenue, exclusive of his private income, amounts to three hundred thousand florins. The standing army
which he commands consists of about forty thousand men.
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Such is the nature of the celebrated Belgic confederacy, as delineated on parchment. What are the
characters which practice has stamped upon it? Imbecility in the government; discord among the provinces;
foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war.
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It was long ago remarked by Grotius, that nothing but the hatred of his countrymen to the house of Austria
kept them from being ruined by the vices of their constitution.
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The union of Utrecht, says another respectable writer, reposes an authority in the States-General,
seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very
different from the theory.
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The same instrument, says another, obliges each province to levy certain contributions; but this article
never could, and probably never will, be executed; because the inland provinces, who have little commerce,
cannot pay an equal quota.
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In matters of contribution, it is the practice to waive the articles of the constitution. The danger of delay
obliges the consenting provinces to furnish their quotas, without waiting for the others; and then to obtain
reimbursement from the others, by deputations, which are frequent, or otherwise, as they can. The great
wealth and influence of the province of Holland enable her to effect both these purposes.
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It has more than once happened, that the deficiencies had to be ultimately collected at the point of the
bayonet; a thing practicable, though dreadful, in a confederacy where one of the members exceeds in force
all the rest, and where several of them are too small to meditate resistance; but utterly impracticable in one
composed of members, several of which are equal to each other in strength and resources, and equal singly
to a vigorous and persevering defense.
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Foreign ministers, says Sir William Temple, who was himself a foreign minister, elude matters taken ad
referendum, by tampering with the provinces and cities. In 1726, the treaty of Hanover was delayed by
these means a whole year. Instances of a like nature are numerous and notorious.
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In critical emergencies, the States-General are often compelled to overleap their constitutional bounds. In
1688, they concluded a treaty of themselves at the risk of their heads. The treaty of Westphalia, in 1648, by
which their independence was formerly and finally recognized, was concluded without the consent of
Zealand. Even as recently as the last treaty of peace with Great Britain, the constitutional principle of
unanimity was departed from. A weak constitution must necessarily terminate in dissolution, for want of
proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when
once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the
contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called
for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest
constitutional authorities.
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Notwithstanding the calamities produced by the stadtholdership, it has been supposed that without his
influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago
have dissolved it. "Under such a government," says the Abbe Mably, "the Union could never have subsisted,
if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling
them to the same way of thinking. This spring is the stadtholder." It is remarked by Sir William Temple,
"that in the intermissions of the stadtholdership, Holland, by her riches and her authority, which drew the
others into a sort of dependence, supplied the place."
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These are not the only circumstances which have controlled the tendency to anarchy and dissolution. The
surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they
nourish by their intrigues the constitutional vices which keep the republic in some degree always at their
mercy.
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The true patriots have long bewailed the fatal tendency of these vices, and have made no less than four
regular experiments by EXTRAORDINARY ASSEMBLIES, convened for the special purpose, to apply a remedy.
As many times has their laudable zeal found it impossible to UNITE THE PUBLIC COUNCILS in reforming the
known, the acknowledged, the fatal evils of the existing constitution. Let us pause, my fellow-citizens, for
one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the
calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an
ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political
happiness.
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A design was also conceived of establishing a general tax to be administered by the federal authority. This
also had its adversaries and failed.
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This unhappy people seem to be now suffering from popular convulsions, from dissensions among the
states, and from the actual invasion of foreign arms, the crisis of their destiny. All nations have their eyes
fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such
a revolution of their government as will establish their union, and render it the parent of tranquillity,
freedom and happiness: The next, that the asylum under which, we trust, the enjoyment of these blessings
will speedily be secured in this country, may receive and console them for the catastrophe of their own.
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I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is
the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The
important truth, which it unequivocally pronounces in the present case, is that a sovereignty over
sovereigns, a government over governments, a legislation for communities, as contradistinguished from
individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by
substituting VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of the mild and
salutary COERCION of the MAGISTRACY.
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AFED16: EUROPEANS ADMIRE AND FEDERALISTS DECRY THE PRESENT SYSTEM
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"ALFRED" defended the Articles of Confederation, taken from The New-York Journal, December 25, 1787 as
reprinted from the [Philadelphia] Independent Gazetteer.
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To the real PATRIOTS of America: . . . America is now free. She now enjoys a greater portion of political
liberty than any other country under heaven. How long she may continue so depends entirely upon her
own caution and wisdom. If she would look to herself more, and to Europe less, I am persuaded it would
tend to promote her felicity. She possesses all the advantages which characterize a rich country-rich within
herself, she ought less to regard the politics, the manufactures, and the interests of distant nations.
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When I look to our situation-climate, extent, soil, and its productions, rivers, ports; when I find I can at this
time purchase grain, bread, meat, and other necessaries of life at as reasonable a rate as in any country;
when I see we are sending great quantities of tobacco, wheat and flour to England and other parts of the
globe beyond the Atlantic; when I get on the other side of the western mountains, and see an extensive
country, which for its multitude of rivers and fertility of soil is equal, if not superior, to any other whatever
when I see these things, I cannot be brought to believe that America is in that deplorable ruined condition
which some designing politicians represent; or that we are in a state of anarchy beyond redemption, unless
we adopt, without any addition or amendment, the new constitution proposed by the late convention; a
constitution which, in my humble opinion, contains the seeds and scions of slavery and despotism. When
the volume of American constitutions [by John Adams] first made its appearance in Europe, we find some of
the most eminent political writers of the present age, and the reviewers of literature, full of admiration and
declaring they had never before seen so much good sense, freedom, and real wisdom in one publication.
Our good friend Dr. [Richard] Price was charmed, and almost prophesied the near approach of the happy
days of the millennium. We have lived under these constitutions; and, after the experience of a few years,
some among us are ready to trample them under their feet, though they have been esteemed, even by our
enemies, as "pearls of great price."
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Let us not, ye lovers of freedom, be rash and hasty. Perhaps the real evils we labor under do not arise from
these systems. There may be other causes to which our misfortunes may be properly attributed. Read the
American constitutions, and you will find our essential rights and privileges well guarded and secured. May
not our manners be the source of our national evils? May not our attachment to foreign trade increase
them? Have we not acted imprudently in exporting almost all our gold and silver for foreign luxuries? It is
now acknowledged that we have not a sufficient quantity of the precious metals to answer the various
purposes of government and commerce; and without a breach of charity, it may be said, that this deficiency
arises from the want of public virtue, in preferring private interest to every other consideration.
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If the states had in any tolerable degree been able to answer the requisitions of Congress-if the continental
treasury had been so far assisted, as to have enabled us to pay the interest of our foreign debt-possibly we
should have heard little, very little about a new system of government. It is a just observation that in
modern times money does everything. If a government can command this unum necessarium from a
certain revenue, it may be considered as wealthy and respectable; if not, it will lose its dignity, become
inefficient and contemptible. But cannot we regulate our finances and lay the foundations for a permanent
and certain revenue, without undoing all that we have done, without making an entire new government?
The most wise and philosophic characters have bestowed on our old systems the highest encomiums. Are
we sure this new political phenomenon will not fail? If it should fail, is there not a great probability, that our
last state will be worse than the first? Orators may declaim on the badness of the times as long as they
please, but I must tell them that the want of public virtue, and the want of money, are two of the principal
sources of our grievances; and if we are -under the pressure of these wants, it ought to teach us frugality-to
adopt a frugal administration of public affairs....
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AFED18-20: WHAT DOES HISTORY TEACH? (PART II)
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"A NEWPORT MAN," wrote this wit which appeared in The Newport Mercury, March 17, 1788.
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. . . - I perceive in your last [issue a] piece signed "A Rhode-Island Man," it seems wrote with an air of
confidence and triumph; he speaks of reason and reasoning-I wish he had known or practised some of that
reasoning he so much pretends to; his essay had been much shorter. We are told in this piece, as well as
others on the same side, that an ability given to British subjects to recover their debts in this country will be
one of the blessings of a new government, by inducing the British to abandon the frontiers, or be left
without excuse. But the British have no other reason for holding the posts, after the time named in the
treaty for their evacuation, than the last reason of Kings, that is, their guns. And giving them the treasure of
the United States is a very unlikely means of removing that. If the British subject met with legal
impediments to the recovery of his debts in this country, for [the] British government to have put the same
stop on our citizens would have been a proper, an ample retaliation. But there is nothing within the
compass of possibility of which I am not perfectly sure, that I am more fully persuaded of than I am, that the
British will never relinquish the posts in question until compelled by force; because no nation pays less
regard to the faith of treaties than the British. Witness their conduct to the French in 1755, when they took
a very great number of men of war and merchant ships before war was declared, because the French had
built some forts on the south side of an imaginary line in the wilds of America; and again, the violation of
the articles by which the people of Boston resigned their arms; and the violation of the capitulation of
Charles Town. Again we are told that Congress has no credit with foreigners, because they have no power
to fulfill their engagements. And this we are told, with a boldness exceeded by nothing but its falsehood,
perhaps in the same paper that announces to the world the loan of a million of Holland gilders-if I mistake
not the sum; a sum equal to 250,000 Spanish Dollars-and all this done by the procurement of that very
Congress whose insignificancy and want of power had been constantly proclaimed for two or three years
before. The Dutch are the most cautious people on earth, and it is reasonable to suppose they were
abundantly persuaded of the permanency and efficacy of our government by their risking so much money
on it.
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We are told that so long as we withhold this power from Congress we shall be a weak, despised people. We
were long contending for Independence, and now we are in a passion to be rid of it. But let us attempt to
reason on this subject, and see to which side that will lead us. Reason is truly defined, in all cases short of
mathematical demonstration, to be a supposing that the like causes will produce the like effects. Let us
proceed by this rule. The Swiss Cantons for a hundred years have remained separate Independent States,
consequently without any controlling power. Even the little Republic of St. Marino, containing perhaps but
little more ground than the town of Newport, and about five thousand inhabitants, surrounded by powerful
and ambitious neighbors, has kept its freedom and independence these thirteen hundred years, and is
mentioned by travellers as a very enlightened and happy people. If these small republics, in the
neighborhood of the warlike and intriguing Courts of Paris, Vienna, and Berlin, have kept their freedom and
original form of government, is it not reasonable to suppose that the same good sense and love of freedom,
on this side the Atlantic, will secure us from all attempt within and without. And the only internal discord
that has happened in Switzerland was on a religious account, and a supreme controlling power is no
security against this, as appears by what happened in Ireland in the time of Charles the First, and in France
in the time of Henry the Fourth. It seems rational in a case of this importance to consult the opinion of the
ablest men, and to whom can we better appeal than to J. J. Rousseau, a republican by birth and educationone of the most exalted geniuses and one of the greatest writers of his age, or perhaps any age; a man the
most disinterested and benevolent towards mankind; a man the most industrious in the acquisition of
knowledge and information, by travel, conversation, reading, and thinking; and one who has wrote a
Volume on Government entitled the Social Contract, wherein he inculcates, that the people should examine
and determine every public act themselves. His words are, that "every law that the people have not ratified
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in person, is void; it is no law. The people of England think they are free. They are much mistaken. They are
never so but during the election of members of Parliament. As soon as they are elected, they are slaves,
they are nothing. And by the use they make of their liberty during the short moments they possess it, they
well deserve to lose it." This is far from advising that thirty thousand souls should resign their judgments
and wishes entirely to one man for two years-to a man, who, perhaps, may go from home sincere and
patriotic but by the time he has dined in pomp for a week with the wealthy citizens of New York or
Philadelphia, will have lost all his rigid ideas of economy and equality. He becomes fascinated with the
elegancies and luxuries of wealth. . . . Objects and intimations like these soon change the champion for the
people to an advocate for power; and the people, finding themselves thus basely betrayed, cry that virtue is
but a name. We are not sure that men have more virtue at this time and place than they had in England in
the time of George the Second. Let anyone look into the history of those times, and see with what boldness
men changed sides and deserted the people in pursuit of profit and power. If to take up the cross and
renounce the pomps and vanities of this sinful world is a hard lesson for divines, 'tis much harder for
politicians. A Cincinnatus, a Cato, a Fabricius, and a Washington, are rarely to be found. We are told that the
Trustees of our powers and freedom, being mostly married men, and all of them inhabitants and
proprietors of the country, is an ample security against an abuse of power. Whether human nature be less
corrupt than formerly I will not determine-but this I know: that Julius Caesar, Oliver Cromwell, and the
nobles of Venice, were natives and inhabitants of the countries whose power they usurped and drenched in
blood.
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Again, our country is compared to a ship of which we are all passengers, and, from thence 'tis gravely
concluded that no officer can ever betray or abuse his trust. But that men will sacrifice the public to their
private interest, is a saying too well known to need repeating. And the instances of designed shipwrecks,
and ships run away with by a combination of masters, supercargoes, and part owners, is so great that
nothing can equal them but those instances in which pretended patriots and politicians have raised
themselves and families to power and greatness, by destroying that freedom and those laws they were
chosen to defend.
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If it were necessary to cite more precedents to prove that the people ought not to trust or remove their
power any further from them, the little Republic of Lucca may be mentioned-which, surrounded by the
Dukedom of Tuscany, has existed under its present constitution about five hundred years, and as Mr.
Addison says, is for the extent of its dominion the richest and best peopled of all the States of Italy. And he
says further that "the whole administration of the government passes into different hands every two
months." This is very far from confirming the doctrine of choosing those officers for two years who were
before chosen for one. The want of a decisive, efficient power is much talked of by the discontented, and
that we are in danger of being conquered by the intrigues of European powers. But it has already been
shown that we have delegated a more decisive power to our Congress than is granted by the Republic Swiss
Cantons to their General Diet. These Republics have enjoyed peace some hundreds of years; while those
governments which possess this decisive, efficient power, so much aimed at, are as often as twenty or
thirty years, drawing their men from the plough and loom to be shot at and cut each other's throats for the
honor of their respective nations. And by how much further we are from Europe than the Swiss Cantons
with their allies, and Lucca and St. Marino are from France, Prussia, and Austria, by so much less are we in
danger of being conquered than those republics which have existed, some earlier than others, but the
youngest of them one hundred and thirty years, without being conquered. As for the United Provinces of
Holland, they are but nominal Republics; their Stadtholder, very much like our intended President, making
them in reality a monarchy, and subject to all its calamities. But supposing that the present constitution,
penned by the ablest men, four or five years in completion, and its adoption considered as the happiest
event-supposing, I say, the present Constitution destroyed, can a new one be ratified with more solemnity,
agreed to in stronger or more binding terms? What security can be given that in seven years hence, another
Convention shall not be called to frame a third Constitution? And as ancient Greece counted by olympiads,
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and monarchies by their Kings' reigns, we shall date in the first, second, or third year, of the seventh,
eighth, or ninth Constitution.
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In treating this subject I have not presumed to advise, and have intruded but few comments. I have
mentioned the state of those countries which most resemble our own and leave to the natural sense of the
reader to make his own conclusions. The malcontents, the lovers of novelty, delight much in allegory.
Should I be indulged a few words in that way, I should not compare the new Constitution to a house. I
should fetch my simile from the country and compare it to Siberian Wheat (otherwise called Siberian cheat)
which is known to have been the most praised, the most dear, the most worthless, and most short-lived
thing that was ever adopted. But if the free men of this continent are weary of that power and freedom
they have so dearly bought and so shortly enjoyed- the power of judging and determining what laws are
most wholesome; what taxes are requisite and sufficient-I say, if the people are tired of these privileges,
now is the time to part with them forever. Much more might be said to show the bitterness and mischief
contained in this gilded pill, but being fond of brevity, I shall rely on the good sense of the public to keep
themselves out of the trap, and sign myself in plain English.
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DEFECTS IN THE ARTICLES OF CONFEDERATION
AFED21: WHY THE ARTICLES FAILED
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This essay is composed of excerpts from "CENTINEL" letters appearing in the (Philadelphia) Independent
Gazetteer, October 5 and November 30, 1787.
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That the present confederation is inadequate to the objects of the union, seems to be universally allowed.
The only question is, what additional powers are wanting to give due energy to the federal government?
We should, however, be careful, in forming our opinion on this subject, not to impute the temporary and
extraordinary difficulties that have hitherto impeded the execution of the confederation, to defects in the
system itself. For years past, the harpies of power have been industriously inculcating the idea that all our
difficulties proceed from the impotency of Congress, and have at length succeeded to give to this sentiment
almost universal currency and belief. The devastations, losses and burdens occasioned by the late war; the
excessive importations of foreign merchandise and luxuries, which have drained the country of its specie
and involved it in debt, are all overlooked, and the inadequacy of the powers of the present confederation
is erroneously supposed to be the only cause of our difficulties. Hence persons of every description are
revelling in the anticipation of the halcyon days consequent on the establishment of the new constitution.
What gross deception and fatal delusion! Although very considerable benefit might be derived from
strengthening the hands of Congress, so as to enable them to regulate commerce, and counteract the
adverse restrictions of other nations, which would meet with the concurrence of all persons; yet this
benefit is accompanied in the new constitution with the scourge of despotic power. . . .
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Taxation is in every government a very delicate and difficult subject. Hence it has been the policy of all wise
statesmen, as far as circumstances permitted, to lead the people by small beginnings and almost
imperceptible degrees, into the habits of taxation. Where the contrary conduct has been pursued, it has
ever failed of full success, not unfrequently proving the ruin of the projectors. The imposing of a
burdensome tax at once on a people, without the usual gradations, is the severest test that any
government can be put to; despotism itself has often proved unequal to the attempt. Under this conviction,
let us take a review of our situation before and since the revolution. From the first settlement of this
country until the commencement of the late war, the taxes were so light and trivial as to be scarcely felt by
the people. When we engaged in the expensive contest with Great Britain, the Congress, sensible of the
difficulty of levying the monies necessary to its support, by direct taxation, had resource to an anticipation
of the public resources, by emitting bills of credit, and thus postponed the necessity of taxation for several
years. This means was pursued to a most ruinous length. But about the year 80 or 81, it was wholly
exhausted, the bills of credit had suffered such a depreciation from the excessive quantities in circulation,
that they ceased to be useful as a medium. The country at this period was very much impoverished and
exhausted; commerce had been suspended for near six years; the husbandman, for want of a market,
limited his crops to his own subsistence; the frequent calls of the militia and long continuance in actual
service, the devastations of the enemy, the subsistence of our own armies, the evils of the depreciation of
the paper money, which fell chiefly upon the patriotic and virtuous part of the community, had all
concurred to produce great distress throughout America. In this situation of affairs, we still had the same
powerful enemy to contend with, who had even more numerous and better appointed armies in the field
than at any former time. Our allies were applied to in this exigency, but the pecuniary assistance that we
could procure from them was soon exhausted. The only resource now remaining was to obtain by direct
taxation, the moneys necessary for our defense. The history of mankind does not furnish a similar instance
of an attempt to levy such enormous taxes at once, nor of a people so wholly unprepared and uninured to
them-the lamp of sacred liberty must indeed have burned with unsullied lustre, every sordid principle of the
mind must have been then extinct, when the people not only submitted to the grievous impositions, but
cheerfully exerted themselves to comply with the calls of their country. Their abilities, however, were not
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equal to furnish the necessary sums-indeed, the requisition of the year 1782, amounted to the whole
income of their farms and other property, including the means of their subsistence. Perhaps the strained
exertions of two years would not have sufficed to the discharge of this requisition. How then can we impute
the difficulties of the people to a due compliance with the requisitions of Congress, to a defect in the
confederation? Any government, however energetic, in similar circumstances, would have experienced the
same fate. If we review the proceedings of the States, we shall find that they gave every sanction and
authority to the requisitions of Congress that their laws could confer, that they attempted to collect the
sums called for in the same manner as is proposed to be done in future by the general government, instead
of the State legislatures....
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The wheels of the general government having been thus clogged, and the arrearages of taxes still
accumulating, it may be asked what prospect is there of the government resuming its proper tone, -unless
more compulsory powers are granted? To this it may be answered, that the produce of imposts on
commerce, which all agree to vest in Congress, together with the immense tracts of land at their disposal,
will rapidly lessen and eventually discharge the present encumbrances. When this takes place, the mode by
requisition will be found perfectly adequate to the extraordinary exigencies of the union. Congress have
lately sold land to the amount of eight millions of dollars, which is a considerable portion of the whole debt.
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It is to be lamented that the interested and designing have availed themselves so successfully of the present
crisis, and under the specious pretence of having discovered a panacea for all the ills of the people, they are
about establishing a system of government, that will prove more destructive to them than the wooden
horse filled with soldiers did in ancient times to the city of Troy. This horse was introduced by their hostile
enemy the Grecians, by a prostitution of the sacred rites of their religion; in like manner, my fellow citizens,
are aspiring despots among yourselves prostituting the name of a Washington to cloak their designs upon
your liberties.
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I would ask how was the proposed Constitution to have showered down those treasures upon every class of
citizens, as has been so industriously inculcated and so fondly believed by some? Would it have been by the
addition of numerous and expensive establishments? By doubling our judiciaries, instituting federal courts
in every county of every state? By a superb presidential court? By a large standing army? In short, by
putting it in the power of the future government to levy money at pleasure, and placing this government so
independent of the people as to enable the administration to gratify every corrupt passion of the mind, to
riot on your spoils, without check or control?
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A transfer to Congress of the power of imposing imposts on commerce, the unlimited regulation of trade,
and to make treaties, I believe is all that is wanting to render America as prosperous as it is in the power of
any form of government to render her; this properly understood would meet the views of all the honest
and well meaning.
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What gave birth to the late continental Convention? Was it not the situation of our commerce, which lay at
the mercy of every foreign power, who, from motives of interest or enmity, could restrict and control it
without risking a retaliation on the part of America, as Congress was impotent on this subject? Such indeed
was the case with respect to Britain, whose hostile regulations gave such a stab to our navigation as to
threaten its annihilation, it became the interest of even the American merchant to give a preference to
foreign bottoms; hence the distress of our seamen, shipwrights, and every mechanic art dependent on
navigation.
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By these regulations too, we were limited in markets for our produce; our vessels were excluded from their
West India islands; many of our staple commodities were denied entrance in Britain. Hence the
husbandman were distressed by the demand for their crops being lessened and their prices reduced. This is
the source to which may be traced every evil we experience, that can be relieved by a more energetic
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government. Recollect the language of complaint for years past; compare the recommendations of
Congress, founded on such complaints, pointing out the remedy; examine the reasons assigned by the
different states for appointing delegates to the late Convention; view the powers vested in that body-they
all harmonize in the sentiment, that the due regulation of trade and navigation was the anxious wish of
every class of citizens, was the great object of calling the Convention.
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This object being provided for by the Constitution proposed by the general Convention, people overlooked
and were not sensible of the needless sacrifice they were making for it. Allowing for a moment that it would
be possible for trade to flourish under a despotic government, of what avail would be a prosperous state of
commerce, when the produce of it would be at the absolute disposal of an arbitrary unchecked general
government, who may levy at pleasure the most oppressive taxes; who may destroy every principle of
freedom; who may even destroy the privilege of complaining....
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After so recent a triumph over British despots, after such torrents of blood and treasure have been spent,
after involving ourselves in the distresses of an arduous war, and incurring such a debt, for the express
purpose of asserting the rights of humanity, it is truly astonishing that a set of men among ourselves should
have had the effrontery to attempt the destruction of our liberties. But in this enlightened age, to dupe the
people by the arts they are practising, is still more extraordinary. . .
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FED21: OTHER DEFECTS OF THE PRESENT CONFEDERATION
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HAMILTON
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HAVING in the three last numbers taken a summary review of the principal circumstances and events which
have depicted the genius and fate of other confederate governments, I shall now proceed in the
enumeration of the most important of those defects which have hitherto disappointed our hopes from the
system established among ourselves. To form a safe and satisfactory judgment of the proper remedy, it is
absolutely necessary that we should be well acquainted with the extent and malignity of the disease.
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The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws.
The United States, as now composed, have no powers to exact obedience, or punish disobedience to their
resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other
constitutional mode. There is no express delegation of authority to them to use force against delinquent
members; and if such a right should be ascribed to the federal head, as resulting from the nature of the
social compact between the States, it must be by inference and construction, in the face of that part of the
second article, by which it is declared, "that each State shall retain every power, jurisdiction, and right, not
EXPRESSLY delegated to the United States in Congress assembled." There is, doubtless, a striking absurdity
in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing
that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has
been of late a repeated theme of the eulogies of those who oppose the new Constitution; and the want of
which, in that plan, has been the subject of much plausible animadversion, and severe criticism. If we are
unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the United
States afford the extraordinary spectacle of a government destitute even of the shadow of constitutional
power to enforce the execution of its own laws. It will appear, from the specimens which have been cited,
that the American Confederacy, in this particular, stands discriminated from every other institution of a
similar kind, and exhibits a new and unexampled phenomenon in the political world.
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The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan.
There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from
considerations of utility, would be a still more flagrant departure from the clause which has been
mentioned, than to imply a tacit power of coercion from the like considerations. The want of a guaranty,
though it might in its consequences endanger the Union, does not so immediately attack its existence as the
want of a constitutional sanction to its laws.
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Without a guaranty the assistance to be derived from the Union in repelling those domestic dangers which
may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear
its crest in each State, and trample upon the liberties of the people, while the national government could
legally do nothing more than behold its encroachments with indignation and regret. A successful faction
may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the
Union to the friends and supporters of the government. The tempestuous situation from which
Massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. Who can
determine what might have been the issue of her late convulsions, if the malcontents had been headed by a
Caesar or by a Cromwell? Who can predict what effect a despotism, established in Massachusetts, would
have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York?
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The inordinate pride of State importance has suggested to some minds an objection to the principle of a
guaranty in the federal government, as involving an officious interference in the domestic concerns of the
members. A scruple of this kind would deprive us of one of the principal advantages to be expected from
union, and can only flow from a misapprehension of the nature of the provision itself. It could be no
impediment to reforms of the State constitution by a majority of the people in a legal and peaceable mode.
This right would remain undiminished. The guaranty could only operate against changes to be effected by
violence. Towards the preventions of calamities of this kind, too many checks cannot be provided. The
peace of society and the stability of government depend absolutely on the efficacy of the precautions
adopted on this head. Where the whole power of the government is in the hands of the people, there is the
less pretense for the use of violent remedies in partial or occasional distempers of the State. The natural
cure for an ill-administration, in a popular or representative constitution, is a change of men. A guaranty by
the national authority would be as much levelled against the usurpations of rulers as against the ferments
and outrages of faction and sedition in the community.
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The principle of regulating the contributions of the States to the common treasury by QUOTAS is another
fundamental error in the Confederation. Its repugnancy to an adequate supply of the national exigencies
has been already pointed out, and has sufficiently appeared from the trial which has been made of it. I
speak of it now solely with a view to equality among the States. Those who have been accustomed to
contemplate the circumstances which produce and constitute national wealth, must be satisfied that there
is no common standard or barometer by which the degrees of it can be ascertained. Neither the value of
lands, nor the numbers of the people, which have been successively proposed as the rule of State
contributions, has any pretension to being a just representative. If we compare the wealth of the United
Netherlands with that of Russia or Germany, or even of France, and if we at the same time compare the
total value of the lands and the aggregate population of that contracted district with the total value of the
lands and the aggregate population of the immense regions of either of the three last-mentioned countries,
we shall at once discover that there is no comparison between the proportion of either of these two objects
and that of the relative wealth of those nations. If the like parallel were to be run between several of the
American States, it would furnish a like result. Let Virginia be contrasted with North Carolina, Pennsylvania
with Connecticut, or Maryland with New Jersey, and we shall be convinced that the respective abilities of
those States, in relation to revenue, bear little or no analogy to their comparative stock in lands or to their
comparative population. The position may be equally illustrated by a similar process between the counties
of the same State. No man who is acquainted with the State of New York will doubt that the active wealth
of King's County bears a much greater proportion to that of Montgomery than it would appear to be if we
should take either the total value of the lands or the total number of the people as a criterion!
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The wealth of nations depends upon an infinite variety of causes. Situation, soil, climate, the nature of the
productions, the nature of the government, the genius of the citizens, the degree of information they
possess, the state of commerce, of arts, of industry, these circumstances and many more, too complex,
minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the
relative opulence and riches of different countries. The consequence clearly is that there can be no
common measure of national wealth, and, of course, no general or stationary rule by which the ability of a
state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members
of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme
oppression.
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This inequality would of itself be sufficient in America to work the eventual destruction of the Union, if any
mode of enforcing a compliance with its requisitions could be devised. The suffering States would not long
consent to remain associated upon a principle which distributes the public burdens with so unequal a hand,
and which was calculated to impoverish and oppress the citizens of some States, while those of others
would scarcely be conscious of the small proportion of the weight they were required to sustain. This,
however, is an evil inseparable from the principle of quotas and requisitions.
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There is no method of steering clear of this inconvenience, but by authorizing the national government to
raise its own revenues in its own way. Imposts, excises, and, in general, all duties upon articles of
consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them.
The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by
an attention to his resources. The rich may be extravagant, the poor can be frugal; and private oppression
may always be avoided by a judicious selection of objects proper for such impositions. If inequalities should
arise in some States from duties on particular objects, these will, in all probability, be counterbalanced by
proportional inequalities in other States, from the duties on other objects. In the course of time and things,
an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. Or, if
inequalities should still exist, they would neither be so great in their degree, so uniform in their operation,
nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that
can possibly be devised.
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It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security
against excess. They prescribe their own limit; which cannot be exceeded without defeating the end
proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is
witty, that, "in political arithmetic, two and two do not always make four." If duties are too high, they
lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when
they are confined within proper and moderate bounds. This forms a complete barrier against any material
oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing
them.
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Impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time
constitute the chief part of the revenue raised in this country. Those of the direct kind, which principally
relate to land and buildings, may admit of a rule of apportionment. Either the value of land, or the number
of the people, may serve as a standard. The state of agriculture and the populousness of a country have
been considered as nearly connected with each other. And, as a rule, for the purpose intended, numbers, in
the view of simplicity and certainty, are entitled to a preference. In every country it is a herculean task to
obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the
difficulties are increased almost to impracticability. The expense of an accurate valuation is, in all situations,
a formidable objection. In a branch of taxation where no limits to the discretion of the government are to
be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be
attended with fewer inconveniences than to leave that discretion altogether at large.
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FED22: THE SAME SUBJECT CONTINUED (OTHER DEFECTS OF THE PRESENT CONFEDERATION)
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From the New York Packet. Friday, December 14, 1787.
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HAMILTON
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IN ADDITION to the defects already enumerated in the existing federal system, there are others of not less
importance, which concur in rendering it altogether unfit for the administration of the affairs of the Union.
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The want of a power to regulate commerce is by all parties allowed to be of the number. The utility of such
a power has been anticipated under the first head of our inquiries; and for this reason, as well as from the
universal conviction entertained upon the subject, little need be added in this place. It is indeed evident, on
the most superficial view, that there is no object, either as it respects the interests of trade or finance, that
more strongly demands a federal superintendence. The want of it has already operated as a bar to the
formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the
States. No nation acquainted with the nature of our political association would be unwise enough to enter
into stipulations with the United States, by which they conceded privileges of any importance to them,
while they were apprised that the engagements on the part of the Union might at any moment be violated
by its members, and while they found from experience that they might enjoy every advantage they desired
in our markets, without granting us any return but such as their momentary convenience might suggest. It
is not, therefore, to be wondered at that Mr. Jenkinson, in ushering into the House of Commons a bill for
regulating the temporary intercourse between the two countries, should preface its introduction by a
declaration that similar provisions in former bills had been found to answer every purpose to the commerce
of Great Britain, and that it would be prudent to persist in the plan until it should appear whether the
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American government was likely or not to acquire greater consistency.
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Several States have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the
conduct of that kingdom in this particular, but the want of concert, arising from the want of a general
authority and from clashing and dissimilar views in the State, has hitherto frustrated every experiment of
the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to
exist.
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The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have,
in different instances, given just cause of umbrage and complaint to others, and it is to be feared that
examples of this nature, if not restrained by a national control, would be multiplied and extended till they
became not less serious sources of animosity and discord than injurious impediments to the intercourse
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between the different parts of the Confederacy. "The commerce of the German empire is in continual
trammels from the multiplicity of the duties which the several princes and states exact upon the
merchandises passing through their territories, by means of which the fine streams and navigable rivers
with which Germany is so happily watered are rendered almost useless." Though the genius of the people
of this country might never permit this description to be strictly applicable to us, yet we may reasonably
expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be
considered and treated by the others in no better light than that of foreigners and aliens.
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The power of raising armies, by the most obvious construction of the articles of the Confederation, is
merely a power of making requisitions upon the States for quotas of men. This practice in the course of the
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This, as nearly as I can recollect, was the sense of his speech on introducing the last bill.
Encyclopedia, article "Empire."
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late war, was found replete with obstructions to a vigorous and to an economical system of defense. It gave
birth to a competition between the States which created a kind of auction for men. In order to furnish the
quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size.
The hope of a still further increase afforded an inducement to those who were disposed to serve to
procrastinate their enlistment, and disinclined them from engaging for any considerable periods. Hence,
slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an
unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the
public safety frequently to the perilous crisis of a disbanded army. Hence, also, those oppressive expedients
for raising men which were upon several occasions practiced, and which nothing but the enthusiasm of
liberty would have induced the people to endure.
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This method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution
of the burden. The States near the seat of war, influenced by motives of self-preservation, made efforts to
furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for
the most part, as remiss as the others were diligent, in their exertions. The immediate pressure of this
inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final
liquidation. The States which did not pay their proportions of money might at least be charged with their
deficiencies; but no account could be formed of the deficiencies in the supplies of men. We shall not,
however, see much reason to regret the want of this hope, when we consider how little prospect there is,
that the most delinquent States will ever be able to make compensation for their pecuniary failures. The
system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of
imbecility in the Union, and of inequality and injustice among the members.
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The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea
of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode
Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to
Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its
operation contradicts the fundamental maxim of republican government, which requires that the sense of
the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes
of the States will be a majority of confederated America. But this kind of logical legerdemain will never
counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is
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a small minority of the people of America; and two thirds of the people of America could not long be
persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the
management and disposal of one third. The larger States would after a while revolt from the idea of
receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political
scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality.
It is neither rational to expect the first, nor just to require the last. The smaller States, considering how
peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not
relinquished, would prove fatal to its duration.
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It may be objected to this, that not seven but nine States, or two thirds of the whole number, must consent
to the most important resolutions; and it may be thence inferred that nine States would always
comprehend a majority of the Union. But this does not obviate the impropriety of an equal vote between
States of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for
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we can enumerate nine States which contain less than a majority of the people; and it is constitutionally
possible that these nine may give the vote. Besides, there are matters of considerable moment
determinable by a bare majority; and there are others, concerning which doubts have been entertained,
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New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a
majority of the whole number of the States, but they do not contain one third of the people.
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which, if interpreted in favor of the sufficiency of a vote of seven States, would extend its operation to
interests of the first magnitude. In addition to this, it is to be observed that there is a probability of an
increase in the number of States, and no provision for a proportional augmentation of the ratio of votes.
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But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a
negative upon the majority (which is always the case where more than a majority is requisite to a decision),
is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the
nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE
has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the
proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its
operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected
from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has
been founded upon a supposition that it would contribute to security. But its real operation is to embarrass
the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or
artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a
respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or
strength of its government, is of the greatest importance, there is commonly a necessity for action. The
public business must, in some way or other, go forward. If a pertinacious minority can control the opinion
of a majority, respecting the best mode of conducting it, the majority, in order that something may be
done, must conform to the views of the minority; and thus the sense of the smaller number will overrule
that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual
negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even
happy when such compromises can take place: for upon some occasions things will not admit of
accommodation; and then the measures of government must be injuriously suspended, or fatally defeated.
It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a
state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.
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It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as
to domestic faction, than that which permits the sense of the majority to decide; though the contrary of
this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that
may be occasioned by obstructing the progress of government at certain critical seasons. When the
concurrence of a large number is required by the Constitution to the doing of any national act, we are apt
to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how
much good may be prevented, and how much ill may be produced, by the power of hindering the doing
what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen
to stand at particular periods.
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Suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another.
Suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to
seek the prosecution of the war, with views that might justify us in making separate terms. In such a state
of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the
hands of government from making peace, where two thirds of all the votes were requisite to that object,
than where a simple majority would suffice. In the first case, he would have to corrupt a smaller number; in
the last, a greater number. Upon the same principle, it would be much easier for a foreign power with
which we were at war to perplex our councils and embarrass our exertions. And, in a commercial view, we
may be subjected to similar inconveniences. A nation, with which we might have a treaty of commerce,
could with much greater facility prevent our forming a connection with her competitor in trade, though
such a connection should be ever so beneficial to ourselves.
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Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among
their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary
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monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in
the government and in the external glory of the nation, that it is not easy for a foreign power to give him an
equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to
few examples of this species of royal prostitution, though there have been abundant specimens of every
other kind.
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In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to
stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any
but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they
have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us
with so many mortifying examples of the prevalency of foreign corruption in republican governments. How
much this contributed to the ruin of the ancient commonwealths has been already delineated. It is well
known that the deputies of the United Provinces have, in various instances, been purchased by the
emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter
to his court, intimates that his success in an important negotiation must depend on his obtaining a major's
commission for one of those deputies. And in Sweden the parties were alternately bought by France and
England in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a
principal cause that the most limited monarch in Europe, in a single day, without tumult, violence, or
opposition, became one of the most absolute and uncontrolled.
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A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a
judiciary power. Laws are a dead letter without courts to expound and define their true meaning and
operation. The treaties of the United States, to have any force at all, must be considered as part of the law
of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by
judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the
last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be instituted under the same authority
which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a
court of final jurisdiction, there may be as many different final determinations on the same point as there
are courts. There are endless diversities in the opinions of men. We often see not only different courts but
the judges of the came court differing from each other. To avoid the confusion which would unavoidably
result from the contradictory decisions of a number of independent judicatories, all nations have found it
necessary to establish one court paramount to the rest, possessing a general superintendence, and
authorized to settle and declare in the last resort a uniform rule of civil justice.
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This is the more necessary where the frame of the government is so compounded that the laws of the
whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are
invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of
opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of
local regulations. As often as such an interference was to happen, there would be reason to apprehend that
the provisions of the particular laws might be preferred to those of the general laws; for nothing is more
natural to men in office than to look with peculiar deference towards that authority to which they owe their
official existence.
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The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen
different legislatures, and as many different courts of final jurisdiction, acting under the authority of those
legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of
the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that
foreign nations can either respect or confide in such a government? Is it possible that the people of America
will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?
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In this review of the Confederation, I have confined myself to the exhibition of its most material defects;
passing over those imperfections in its details by which even a great part of the power intended to be
conferred upon it has been in a great measure rendered abortive. It must be by this time evident to all men
of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system
so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading
features and characters.
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The organization of Congress is itself utterly improper for the exercise of those powers which are necessary
to be deposited in the Union. A single assembly may be a proper receptacle of those slender, or rather
fettered, authorities, which have been heretofore delegated to the federal head; but it would be
inconsistent with all the principles of good government, to intrust it with those additional powers which,
even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in
the United States. If that plan should not be adopted, and if the necessity of the Union should be able to
withstand the ambitious aims of those men who may indulge magnificent schemes of personal
aggrandizement from its dissolution, the probability would be, that we should run into the project of
conferring supplementary powers upon Congress, as they are now constituted; and either the machine,
from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to
prop it; or, by successive augmentations of its force an energy, as necessity might prompt, we shall finally
accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our
posterity one of the most execrable forms of government that human infatuation ever contrived. Thus, we
should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect
to be, solicitous to avert.
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It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification
by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been
exposed to frequent and intricate questions concerning the validity of its powers, and has, in some
instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the
law of a State, it has been contended that the same authority might repeal the law by which it was ratified.
However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to revoke that
COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature
proves the necessity of laying the foundations of our national government deeper than in the mere
sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE
CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure,
original fountain of all legitimate authority.
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FED23: THE NECESSITY OF A GOVERNMENT AS ENERGETIC AS THE ONE PROPOSED TO THE PRESERVATION
OF THE UNION
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HAMILTON
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THE necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the
Union, is the point at the examination of which we are now arrived.
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This inquiry will naturally divide itself into three branches—the objects to be provided for by the federal
government, the quantity of power necessary to the accomplishment of those objects, the persons upon
whom that power ought to operate. Its distribution and organization will more properly claim our attention
under the succeeding head.
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The principal purposes to be answered by union are these—the common defense of the members; the
preservation of the public peace as well against internal convulsions as external attacks; the regulation of
commerce with other nations and between the States; the superintendence of our intercourse, political and
commercial, with foreign countries.
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The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to
prescribe rules for the government of both; to direct their operations; to provide for their support. These
powers ought to exist without limitation, BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT
AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS
WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances that endanger the safety of nations are
infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the
care of it is committed. This power ought to be coextensive with all the possible combinations of such
circumstances; and ought to be under the direction of the same councils which are appointed to preside
over the common defense.
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This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it;
and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple
as they are universal; the MEANS ought to be proportioned to the END; the persons, from whose agency
the attainment of any END is expected, ought to possess the MEANS by which it is to be attained.
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Whether there ought to be a federal government intrusted with the care of the common defense, is a
question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will
follow, that that government ought to be clothed with all the powers requisite to complete execution of its
trust. And unless it can be shown that the circumstances which may affect the public safety are reducible
within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it
must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to
provide for the defense and protection of the community, in any matter essential to its efficacy that is, in
any matter essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL FORCES.
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Defective as the present Confederation has been proved to be, this principle appears to have been fully
recognized by the framers of it; though they have not made proper or adequate provision for its exercise.
Congress have an unlimited discretion to make requisitions of men and money; to govern the army and
navy; to direct their operations. As their requisitions are made constitutionally binding upon the States,
who are in fact under the most solemn obligations to furnish the supplies required of them, the intention
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evidently was that the United States should command whatever resources were by them judged requisite
to the "common defense and general welfare." It was presumed that a sense of their true interests, and a
regard to the dictates of good faith, would be found sufficient pledges for the punctual performance of the
duty of the members to the federal head.
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The experiment has, however, demonstrated that this expectation was ill-founded and illusory; and the
observations, made under the last head, will, I imagine, have sufficed to convince the impartial and
discerning, that there is an absolute necessity for an entire change in the first principles of the system; that
if we are in earnest about giving the Union energy and duration, we must abandon the vain project of
legislating upon the States in their collective capacities; we must extend the laws of the federal government
to the individual citizens of America; we must discard the fallacious scheme of quotas and requisitions, as
equally impracticable and unjust. The result from all this is that the Union ought to be invested with full
power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the
formation and support of an army and navy, in the customary and ordinary modes practiced in other
governments.
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If the circumstances of our country are such as to demand a compound instead of a simple, a confederate
instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate
the OBJECTS, as far as it can be done, which shall appertain to the different provinces or departments of
power; allowing to each the most ample authority for fulfilling the objects committed to its charge. Shall
the Union be constituted the guardian of the common safety? Are fleets and armies and revenues
necessary to this purpose? The government of the Union must be empowered to pass all laws, and to make
all regulations which have relation to them. The same must be the case in respect to commerce, and to
every other matter to which its jurisdiction is permitted to extend. Is the administration of justice between
the citizens of the same State the proper department of the local governments? These must possess all the
authorities which are connected with this object, and with every other that may be allotted to their
particular cognizance and direction. Not to confer in each case a degree of power commensurate to the
end, would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the
great interests of the nation to hands which are disabled from managing them with vigor and success.
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Who is likely to make suitable provisions for the public defense, as that body to which the guardianship of
the public safety is confided; which, as the centre of information, will best understand the extent and
urgency of the dangers that threaten; as the representative of the WHOLE, will feel itself most deeply
interested in the preservation of every part; which, from the responsibility implied in the duty assigned to
it, will be most sensibly impressed with the necessity of proper exertions; and which, by the extension of its
authority throughout the States, can alone establish uniformity and concert in the plans and measures by
which the common safety is to be secured? Is there not a manifest inconsistency in devolving upon the
federal government the care of the general defense, and leaving in the State governments the EFFECTIVE
powers by which it is to be provided for? Is not a want of co-operation the infallible consequence of such a
system? And will not weakness, disorder, an undue distribution of the burdens and calamities of war, an
unnecessary and intolerable increase of expense, be its natural and inevitable concomitants? Have we not
had unequivocal experience of its effects in the course of the revolution which we have just accomplished?
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Every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is
both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects
which are intrusted to its management. It will indeed deserve the most vigilant and careful attention of the
people, to see that it be modeled in such a manner as to admit of its being safely vested with the requisite
powers. If any plan which has been, or may be, offered to our consideration, should not, upon a
dispassionate inspection, be found to answer this description, it ought to be rejected. A government, the
constitution of which renders it unfit to be trusted with all the powers which a free people ought to
delegate to any government, would be an unsafe and improper depositary of the NATIONAL INTERESTS.
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Wherever THESE can with propriety be confided, the coincident powers may safely accompany them. This is
the true result of all just reasoning upon the subject. And the adversaries of the plan promulgated by the
convention ought to have confined themselves to showing, that the internal structure of the proposed
government was such as to render it unworthy of the confidence of the people. They ought not to have
wandered into inflammatory declamations and unmeaning cavils about the extent of the powers. The
POWERS are not too extensive for the OBJECTS of federal administration, or, in other words, for the
management of our NATIONAL INTERESTS; nor can any satisfactory argument be framed to show that they
are chargeable with such an excess. If it be true, as has been insinuated by some of the writers on the other
side, that the difficulty arises from the nature of the thing, and that the extent of the country will not
permit us to form a government in which such ample powers can safely be reposed, it would prove that we
ought to contract our views, and resort to the expedient of separate confederacies, which will move within
more practicable spheres. For the absurdity must continually stare us in the face of confiding to a
government the direction of the most essential national interests, without daring to trust it to the
authorities which are indispensable to their proper and efficient management. Let us not attempt to
reconcile contradictions, but firmly embrace a rational alternative.
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I trust, however, that the impracticability of one general system cannot be shown. I am greatly mistaken, if
any thing of weight has yet been advanced of this tendency; and I flatter myself, that the observations
which have been made in the course of these papers have served to place the reverse of that position in as
clear a light as any matter still in the womb of time and experience can be susceptible of. This, at all events,
must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest
argument in favor of an energetic government; for any other can certainly never preserve the Union of so
large an empire. If we embrace the tenets of those who oppose the adoption of the proposed Constitution,
as the standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the
impracticability of a national system pervading entire limits of the present Confederacy.
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AFED22: ARTICLES OF CONFEDERATION SIMPLY REQUIRES AMENDMENTS, PARTICULARLY FOR
COMMERCIAL POWER AND JUDICIAL POWER; CONSTITUTION GOES TOO FAR
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Benjamin Austin of Massachusetts, used the pen-name "CANDIDUS." Taken from two letters by "Candidus"
which appeared in the [Boston] Independent Chronicle, December 6 and 20, 1787.
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.... Many people are sanguine for the Constitution, because they apprehend our commerce will be
benefited. I would advise those persons to distinguish between the evils that arise from extraneous causes
and our private imprudencies, and those that arise from our government. It does not appear that the
embarrassments of our trade will be removed by the adoption of this Constitution. The powers of Europe
do not lay any extraordinary duties on our oil, fish, or tobacco, because of our government; neither do they
discourage our ship building on this account. I would ask what motive would induce Britain to repeal the
duties on our oil, or France on our fish, if we should adopt the proposed Constitution? Those nations laid
these duties to promote their own fishery, etc., and let us adopt what mode of government we please, they
will pursue their own politics respecting our imports and exports, unless we can check them by some
commercial regulations.
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But it may be said, that such commercial regulations will take place after we have adopted the Constitution,
and that the northern states would then become carriers for the southern. The great question then is,
whether it is necessary in order to obtain these purposes, for every state to give up their whole power of
legislation and taxation, and become an unwieldy republic, when it is probable the important object of our
commerce could be effected by a uniform navigation act, giving Congress full power to regulate the whole
commerce of the States? This power Congress have often said was sufficient to answer all their purposes.
The circular letter from the Boston merchants and others, was urgent on this subject. Also the navigation
act of this state [Massachusetts], was adopted upon similar principles, and . . . was declared by our Minister
in England, to be the most effectual plan to promote our navigation, provided it had been adopted by the
whole confederacy.
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But it may be said, this regulation of commerce, without energy to enforce a compliance, is quite ideal.
Coercion with some persons seems the principal object, but I believe we have more to expect from the
affections of the people, than from an armed body of men. Provided a uniform commercial system was
adopted, and each State felt its agreeable operations, we should have but little occasion to exercise force.
But however, as power is thought necessary to raise an army, if required, to carry into effect any federal
measure, I am willing to place it, where it is likely to be used with the utmost caution. This power I am
willing to place among the confederated States, to be exercised when two thirds of them in their legislative
capacities shall say the common good requires it. But to trust this power in the hands of a few men
delegated for two, four and six years, is complimenting the ambition of human nature too highly, to risk the
tranquility of these States on their absolute determination. Certain characters now on the stage, we have
reason to venerate, but though this country is now blessed with a Washington, Franklin, Hancock and
Adams, yet posterity may have reason to rue the day when their political welfare depends on the decision
of men who may fill the places of these worthies....
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The advocates for the Constitution, have always assumed an advantage by saying, that their opposers have
never offered any plan as a substitute; the following outlines are therefore submitted, not as originating
from an individual, but as copied from former resolutions of Congress, and united with some parts of the
Constitution proposed by the respectable convention. This being the case, I presume it will not be
invalidated by the cant term of antifederalism.
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1st. That the Legislature of each state, empower Congress to frame a navigation act, to operate uniformly
throughout the states; receiving to Congress all necessary powers to regulate our commerce with foreign
nations, and among the several states, and with the Indian tribes. The revenue arising from the impost to
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be subject to their appropriations, "to enable them to fulfill their public engagements with foreign
creditors."
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2nd. That the Legislature of each state, instruct their delegates in Congress, to frame a treaty of AMITY for
the purposes of discharging each state's proportion of the public debt, either foreign or domestic, and to
enforce (if necessary) their immediate payment. Each state obligating themselves in the treaty of amity, to
furnish (whenever required by Congress) a proportionate number of the Militia who are ever to be well
organized and disciplined, for the purposes of repelling any invasion; suppressing any insurrection; or
reducing any delinquent state within the confederacy, to a compliance with the federal treaty of commerce
and amity. Such assistance to be furnished by the Supreme Executive of each state, on the application of
Congress. The troops in cases of invasion to be under the command of the Supreme Executive of the state
immediately in danger; but in cases of insurrection, and when employed against any delinquent state in the
confederacy, the troops to be under the command of Congress.
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3d. That such states as did not join the confederacy of commerce and amity, should be considered as aliens;
and any goods brought from such state into any of the confederated states, together with their vessels,
should be subject to heavy extra duties.
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4th. The treaty of amity, agreed to by the several states, should expressly declare that no State (without the
consent of Congress) should enter into any treaty, alliances, or confederacy; grant letters of marque and
reprisal; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder or
ex post facto law, or impair the obligations of contracts; engage in war, or declare peace.
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5th. A Supreme Judicial Court to be constituted for the following federal purposes-to extend to all treaties
made previous to, or which shall be made under the authority of the confederacy; all cases affecting
Ambassadors, and other public Ministers and Consuls; controversies between two or more states; and
between citizens of the same state claiming lands under grants of different states; to define and punish
piracies, and felonies committed on the high seas, and offenses against the law of nations.
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6th. That it be recommended to Congress, that the said navigation act, and treaty of amity, be sent to the
Legislatures (or people) of the several states, for their assenting to, and ratifying the same.
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7th. A regular statement and account of the receipts and expenditures, of all public monies, should be
published from time to time.
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The above plan it is humbly conceived-secures the internal government of the several states; promotes the
commerce of the whole union; preserves a due degree of energy; lays restraints on aliens; secures the
several states against invasions and insurrection by a MILITIA, rather than a STANDING ARMY; checks all ex
post facto laws; cements the states by certain federal restrictions; confines the judiciary powers to national
matters; and provides for the public information of receipts and expenditures. In a word, it places us in a
complete federal state.
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The resolves of Congress, 18th April, 1783, "recommends to the several States, to invest them with powers
to levy for the use of the United States, certain duties upon goods, imported from any foreign port, island
or plantation;" which measures is declared by them, "to be a system more free, from well founded
exception, and is better calculated to receive the approbation of the several States, than any other, that the
wisdom of Congress could devise; and if adopted, would enable them to fulfill their public engagements
with their foreign creditors."…
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Should we adopt this plan, no extraordinary expenses would arise, and Congress having but one object to
attend, every commercial regulation would be uniformly adopted; the duties of impost and excise, would
operate equally throughout the states; our ship building and carrying trade, would claim their immediate
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attention; and in consequence thereof, our agriculture, trade and manufactures would revive and flourish.
No acts of legislation, independent of this great business, would disaffect one State against the other; but
the whole, … in one Federal System of commerce, would serve to remove all local attachments, and
establish our navigation upon a most extensive basis. The powers of Europe, would be alarmed at our
Union, and would fear lest we should retaliate on them by laying restrictions on their trade....
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These states, by the blessing of Heaven, are now in a very tranquil state. This government, in particular, has
produced an instance of ENERGY, in suppressing a late rebellion, which no absolute monarchy can boast.
And notwithstanding the insinuations of a "small party," who are ever branding the PEOPLE with the most
opprobrious epithets-representing them as aiming to level all distinctions; emit paper money; encourage
the rebellion-yet the present General Court, the voice of that body, whom they have endeavored to
stigmatize, have steadily pursued measures foreign from the suggestions of such revilers. And the public
credit has been constantly appreciating since the present Administration.
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Let us then be cautious how we disturb this general harmony. Every exertion is now making, by the people,
to discharge their taxes. Industry and frugality prevail. Our commerce is every day increasing by the
enterprise of our merchants. And above all, the PEOPLE of the several states are convinced of the necessity
of adopting some Federal Commercial Plan....
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CANDIDUS
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AFED23: CERTAIN POWERS NECESSARY FOR THE COMMON DEFENSE, CAN AND SHOULD BE LIMITED
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In Federalist No. 23, Alexander Hamilton spoke of the necessity for an energetic government. "BRUTUS"
replied.
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Taken from the 7th and 8th essays of "Brutus" in The New-York Journal, January 3 and 10, 1788.
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In a confederated government, where the powers are divided between the general and the state
government, it is essential . . . that the revenues of the country, without which no government can exist,
should be divided between them, and so apportioned to each, as to answer their respective exigencies, as
far as human wisdom can effect such a division and apportionment....
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No such allotment is made in this constitution, but every source of revenue is under the control of
Congress; it therefore follows, that if this system is intended to be a complex and not a simple, a
confederate and not an entire consolidated government, it contains in it the sure seeds of its own
dissolution. One of two things must happen. Either the new constitution will become a mere nudum
pactum, and all the authority of the rulers under it be cried down, as has happened to the present
confederacy. Or the authority of the individual states will be totally supplanted, and they will retain the
mere form without any of the powers of government. To one or the other of these issues, I think, this new
government, if it is adopted, will advance with great celerity.
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It is said, I know, that such a separation of the sources of revenue, cannot be made without endangering
the public safety-"unless (says a writer) [Alexander Hamilton] it can be shown that the circumstances which
may affect the public safety are reducible within certain determinate limits; unless the contrary of this
position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there
can be no limitation of that authority which is to provide for the defense and protection of the community,
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etc."
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The pretended demonstration of this writer will instantly vanish, when it is considered, that the protection
and defense of the community is not intended to be entrusted solely into the hands of the general
government, and by his own confession it ought not to be. It is true this system commits to the general
government the protection and defense of the community against foreign force and invasion, against
piracies and felonies on the high seas, and against insurrection among ourselves. They are also authorized
to provide for the administration of justice in certain matters of a general concern, and in some that I think
are not so. But it ought to be left to the state governments to provide for the protection and defense of the
citizen against the hand of private violence, and the wrongs done or attempted by individuals to each other.
Protection and defense against the murderer, the robber, the thief, the cheat, and the unjust person, is to
be derived from the respective state governments. The just way of reasoning therefore on this subject is
this, the general government is to provide for the protection and defense of the community against foreign
attacks, etc. They therefore ought to have authority sufficient to effect this, so far as is consistent with the
providing for our internal protection and defense. The state governments are entrusted with the care of
administering justice among its citizens, and the management of other internal concerns; they ought
therefore to retain power adequate to that end. The preservation of internal peace and good order, and the
due administration of law and justice, ought to be the first care of every government. The happiness of a
people depends infinitely more on this than it does upon all that glory and respect which nations acquire by
the most brilliant martial achievements. And I believe history will furnish but few examples of nations who
have duly attended to these, who have been subdued by foreign invaders. If a proper respect and
submission to the laws prevailed over all orders of men in our country; and if a spirit of public and private
justice, economy, and industry influenced the people, we need not be under any apprehensions but what
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they would be ready to repel any invasion that might be made on the country. And more than this, I would
not wish from them. A defensive war is the only one I think justifiable. I do not make these observations to
prove, that a government ought not to be authorised to provide for the protection and defense of a country
against external enemies, but to show that this is not the most important, much less the only object of their
care.
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The European governments are almost all of them framed, and administered with a view to arms, and war,
as that in which their chief glory consists. They mistake the end of government. It was designed to save
men's lives, not to destroy them. We ought to furnish the world with an example of a great people, who in
their civil institutions hold chiefly in view, the attainment of virtue, and happiness among ourselves. Let the
monarchs in Europe share among them the glory of depopulating countries, and butchering thousands of
their innocent citizens, to revenge private quarrels, or to punish an insult offered to a wife, a mistress, or a
favorite. I envy them not the honor, and I pray heaven this country may never be ambitious of it. The czar
Peter the great, acquired great glory by his arms; but all this was nothing, compared with the true glory
which he obtained, by civilizing his rude and barbarous subjects, diffusing among them knowledge, and
establishing and cultivating the arts of life. By the former he desolated countries, and drenched the earth
with human blood; by the latter he softened the ferocious nature of his people, and pointed them to the
means of human happiness. The most important end of government then, is the proper direction of its
internal police, and economy; this is the province of the state governments, and it is evident, and is indeed
admitted, that these ought to be under their control. Is it not then preposterous, and in the highest degree
absurd, when the state governments are vested with powers so essential to the peace and good order of
society, to take from them the means of their own preservation?
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The idea that the powers of congress in respect to revenue ought to be unlimited, because 'the
circumstances which may affect the public safety are not reducible to certain determinate limits' is novel, as
it relates to the government of the United States. The inconveniencies which resulted from the feebleness
of the present confederation was discerned, and felt soon after its adoption. It was soon discovered, that a
power to require money, without either the authority or means to enforce a collection of it, could not be
relied upon either to provide for the common defense, discharge the national debt, or for support of
government. Congress therefore, as early as February 1781, recommended to the states to invest them
with a power to levy an impost of five per cent ad valorem, on all imported goods, as a fund to be
appropriated to discharge the debts already contracted, or which should hereafter be contracted for the
support of the war, to be continued until the debts should be fully and finally discharged. There is not the
most distant idea held out in this act, that an unlimited power to collect taxes, duties and excises was
necessary to be vested in the United States, and yet this was a time of the most pressing danger and
distress. The idea then was, that if certain definite funds were assigned to the union, which were certain in
their natures, productive, and easy of collection, it would enable them to answer their engagements, and
provide for their defense, and the impost of five per cent was fixed upon for the purpose.
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This same subject was revived in the winter and spring of 1783, and after a long consideration of the
subject, many schemes were proposed. The result was, a recommendation of the revenue system of April
1783; this system does not suggest an idea that it was necessary to grant the United States unlimited
authority in matters of revenue. A variety of amendments were proposed to this system, some of which are
upon the journals of Congress, but it does not appear that any of them proposed to invest the general
government with discretionary power to raise money. On the contrary, all of them limit them to certain
definite objects, and fix the bounds over which they could not pass. This recommendation was passed at
the conclusion of the war, and was founded on an estimate of the whole national debt. It was computed,
that one million and an half of dollars, in addition to the impost, was a sufficient sum to pay the annual
interest of the debt, and gradually to abolish the principal. Events have proved that their estimate was
sufficiently liberal, as the domestic debt appears upon its being adjusted to be less than it was computed;
and since this period a considerable portion of the principal of the domestic debt has been discharged by
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the sale of the western lands. It has been constantly urged by Congress, and by individuals, ever since, until
lately, that had this revenue been appropriated by the states, as it was recommended, it would have been
adequate to every exigency of the union. Now indeed it is insisted, that all the treasures of the country are
to be under the control of that body, whom we are to appoint to provide for our protection and defense
against foreign enemies. The debts of the several states, and the support of the governments of them are
to trust to fortune and accident. If the union should not have occasion for all the money they can raise, they
will leave a portion for the state, but this must be a matter of mere grace and favor. Doctrines like these
would not have been listened to by any state in the union, at a time when we were pressed on every side
by a powerful enemy, and were called upon to make greater exertions than we have any reason to expect
we shall ever be again. . . .
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I may be asked to point out the sources, from which the general government could derive a sufficient
revenue, to answer the demands of the union. ... There is one source of revenue, which it is agreed, the
general government ought to have the sole control of. This is an impost upon all goods imported from
foreign countries. This would, of itself, be very productive, and would be collected with ease and certainty.
It will be a fund too, constantly increasing, for our commerce will grow with the productions of the country.
And these, together with our consumption of foreign goods, wilt increase with our population. It is said,
that the impost will not produce a sufficient sum to satisfy the demands of the general government;
perhaps it would not.... My own opinion is, that the objects from which the general government should
have authority to raise a revenue, should be of such a nature, that the tax should be raised by simple laws,
with few officers, with certainty and expedition, and with the least interference with the internal police of
the states. Of this nature is the impost on imported goods. And it appears to me that a duty on exports,
would also be of this nature. Therefore, for ought I can discover, this would be the best source of revenue
to grant the general government. I know neither the Congress nor the state legislatures will have authority
under the new constitution to raise a revenue in this way. But I cannot perceive the reason of the
restriction. It appears to me evident, that a tax on articles exported, would be as nearly equal as any that
we can expect to lay, and it certainly would be collected with more ease and less expense than any direct
tax. I do not however, contend for this mode; it may be liable to well founded objections that have not
occurred to me. But this I do contend for, that some mode is practicable, and that limits must be marked
between the general government, and the states on this head, or if they be not, either the Congress in the
exercise of this power, will deprive the state legislatures of the means of their existence, or the states by
resisting the constitutional authority of the general government, will render it nugatory....
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The next powers vested by this Constitution in the general government, which we shall consider, are those
which authorize them to "borrow money on the credit of the United States, and to raise and support
armies." I take these two together and connect them with the power to lay and collect taxes, duties,
imposts and excises, because their extent, and the danger that will arise from the exercise of these powers,
cannot be fully understood, unless they are viewed in relation to each other.
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The power to borrow money is general and unlimited, and the clause so often before referred to,
authorizes the passing [of] any laws proper and necessary to carry this into execution. Under this authority,
Congress may mortgage any or all the revenues of the union, as a fund to loan money upon; and it is
probable, in this way, they may borrow of foreign nations, a principal sum, the interest of which will be
equal to the annual revenues of the country. By this means, they may create a national debt, so large, as to
exceed the ability of the country ever to sink. I can scarcely contemplate a greater calamity that could befall
this country, than to be loaded with a debt exceeding their ability ever to discharge. If this be a just remark,
it is unwise and improvident to vest in the general government a power to borrow at discretion, without
any limitation or restriction.
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It may possibly happen that the safety and welfare of the country may require, that money be borrowed,
and it is proper when such a necessity arises that the power should be exercised by the general
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government. But it certainly ought never to be exercised, but on the most urgent occasions, and then we
should not borrow of foreigners if we could possibly avoid it.
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The constitution should therefore have so restricted the exercise of this power as to have rendered it very
difficult for the government to practice it. The present confederation requires the assent of nine states to
exercise this, and a number of other important powers of the confederacy. It would certainly have been a
wise provision in this constitution, to have made it necessary that two thirds of the members should assent
to borrowing money. When the necessity was indispensable, this assent would always be given, and in no
other cause ought it to be.
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The power to raise armies is indefinite and unlimited, and authorises the raising [of] forces, as well in peace
as in war. Whether the clause which empowers the Congress to pass all laws which are proper and
necessary, to carry this into execution, will not authorise them to impress men for the army, is a question
well worthy [of] consideration. If the general legislature deem it for the general welfare to raise a body of
troops, and they cannot be procured by voluntary enlistments, it seems evident, that it will be proper and
necessary to effect it, that men be impressed from the militia to make up the deficiency.
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These powers taken in connection, amount to this: that the general government have unlimited authority
and control over all the wealth and all the force of the union. The advocates for this scheme, would favor
the world with a new discovery, if they would show, what kind of freedom or independency is left to the
state governments, when they cannot command any part of the property or of the force of the country, but
at the will of the Congress. It seems to me as absurd, as it would be to say, that I was free and independent,
when I had conveyed all my property to another, and was tenant to him, and had beside, given an
indenture of myself to serve him during life. . . .
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COMMON DEFENSE, MILITA, AND STANDING ARMIES
AFED27: THE USE OF COERCION BY THE NEW GOVERNMENT (PART II)
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"JOHN HUMBLE's," following piece was published in the Independent Gazetteer, October 29, 1787.
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The humble address of the low-born of the United States of America, to their fellow slaves scattered
throughout the world-greeting:
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Whereas it hath been represented unto us that a most dreadful disease hath for these five years last past
infected, preyed upon and almost ruined the government and people of this our country; and of this malady
we ourselves have had perfect demonstration, not mentally, but bodily, through every one of the five
senses. For although our sensations in regard to the mind be not just so nice as those of the well born, yet
our feeling, through the medium of the plow, the hoe and the grubbing ax, is as acute as any nobleman's in
the world. And, whereas, a number of skillful physicians having met together at Philadelphia last summer,
for the purpose of exploring, and, if possible, removing the cause of this direful disease, have, through the
assistance of John Adams, Esq., in the profundity of their great political knowledge, found out and
discovered that nothing but a new government, consisting of three different branches, namely, king, lords,
and commons or, in the American language, President, Senate and Representatives-can save this, our
country, from inevitable destruction. And, whereas, it has been reported that several of our low-born
brethren have had the horrid audacity to think for themselves in regard to this new system of government,
and, dreadful thought! have wickedly begun to doubt concerning the perfection of this evangelical
constitution, which our political doctors have declared to be a panacea, which (by inspiration) they know
will infallibly heal every distemper in the confederation, and finally terminate in the salvation of America.
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Now we the low born, that is, all the people of the United States, except 600 thereabouts, well born, do by
this our humble address, declare and most solemnly engage, that we will allow and admit the said 600 well
born, immediately to establish and confirm this most noble, most excellent and truly divine constitution.
And we further declare that without any equivocation or mental reservation whatever we will support and
maintain the same according to the best of our power, and after the manner and custom of all other slaves
in foreign countries, namely by the sweat and toil of our body. Nor will we at any future period of time ever
attempt to complain of this our royal government, let the consequences be what they may.
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And although it appears to us that a standing army, composed of the purgings of the jails of Great Britain,
Ireland and Germany, shall be employed in collecting the revenues of this our king and government, yet, we
again in the most solemn manner declare, that we will abide by our present determination of nonresistance and passive obedience-so that we shall not dare to molest or disturb those military gentlemen in
the service of our royal government. And (which is not improbable) should any one of those soldiers when
employed on duty in collecting the taxes, strike off the arm (with his sword) of one of our fellow slaves, we
will conceive our case remarkably fortunate if he leaves the other arm on. And moreover, because we are
aware that many of our fellow slaves shall be unable to pay their taxes, and this incapacity of theirs is a just
cause of impeachment of treason; wherefore in such cases we will use our utmost endeavors, in
conjunction with the standing army, to bring such atrocious offenders before our federal judges, who shall
have power, without jury or trial, to order the said miscreants for immediate execution; nor will we think
their sentence severe unless after being hanged they are also to be both beheaded and quartered. And
finally we shall henceforth and forever leave all power, authority and dominion over our persons and
properties in the hands of the well born, who were designed by Providence to govern. And in regard to the
liberty of the press, we renounce all claim to it forever more, Amen; and we shall in future be perfectly
contented if our tongues be left us to lick the feet of our well born masters.
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Done on behalf of three millions of low-born American slaves.
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JOHN HUMBLE, Secretary
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AFED29: OBJECTIONS TO NATIONAL CONTROL OF THE MILITIA
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"A DEMOCRATIC FEDERALIST," appeared in "the Pennsylvania Packet," October 23, 1787; following #29, #30
is excerpted from THE ADDRESS AND REASONS OF DISSENT OF THE MINORITY OF THE CONVENTION OF THE
STATE OF PENNSYLVANIA TO THEIR CONSTITUENTS, December 12, 1787.
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Hume, an aristocratical writer, has candidly confessed that an army is a moral distemper in a government,
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of which it must at last inevitably perish ; and the Earl of Oxford (Oxford the friend of France and the
Pretender, the attainted Oxford), said in the British parliament, in a speech on the mutiny bill, that, "While
he had breath he would speak for the liberties of his country, and against courts martial and a standing
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army in peace, as dangerous to the Constitution." Such were the speeches even of the enemies of liberty
when Britain had yet a right to be called free. But, says Mr. [James] Wilson, "It is necessary to maintain the
appearance of strength even in times of the most profound tranquillity." And what is this more than a
threadbare hackneyed argument, which has been answered over and over in different ages, and does not
deserve even the smallest consideration? Had we a standing army when the British invaded our peaceful
shores? Was it a standing army that gained the battles of Lexington and Bunker Hill, and took the ill-fated
Burgoyne? Is not a well- regulated militia sufficient for every purpose of internal defense? And which of
you, my fellow citizens, is afraid of any invasion from foreign powers that our brave militia would not be
able immediately to repel?
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26
Mr. Wilson says, that he does not know of any nation in the world which has not found it necessary to
maintain the appearance of strength in a season of the most profound tranquillity. If by this equivocal
assertion he has meant to say that there is no nation in the world without a standing army in time of peace,
he has been mistaken. I need only adduce the example of Switzerland, which, like us, is a republic, whose
thirteen cantons, like our thirteen States, are under a federal government, and which besides is surrounded
by the most powerful nations in Europe, all jealous of its liberty and prosperity. And yet that nation has
preserved its freedom for many ages, with the sole help of a militia, and has never been known to have a
standing army, except when in actual war. Why should we not follow so glorious an example; and are we
less able to defend our liberty without an army, than that brave but small nation which, with its militia
alone has hitherto defied all Europe?
27
A DEMOCRATIC FEDERALIST
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29
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31
The framers of this constitution appear to have been . . . sensible that no dependence could be placed on
the people for their support; but on the contrary, that the government must be executed by force. They
have therefore made a provision for this purpose in a permanent standing army and a militia that may be
objected to as strict discipline and government.
32
33
34
35
A standing army in the hands of a government placed so independent of the people, may be made a fatal
instrument to overturn the public liberties; it may be employed to enforce the collection of the most
oppressive taxes; and to carry into execution the most arbitrary measures. An ambitious man who may
have the army at his devotion, may step up into the throne, and seize upon absolute power.
36
37
The absolute unqualified command that Congress have over the militia may be made instrumental to the
destruction of all liberty both public and private; whether of a personal, civil or religious nature.
38
39
First, the personal liberty of every man, probably from sixteen to sixty years of age, may be destroyed by
the power Congress have in organizing and governing of the militia. As militia they may be subjected to
27
28
2d Burgh, 349
Ibid., page 455
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fines to any amount, levied in a military manner; they may be subjected to corporal punishments of the
most disgraceful and humiliating kind; and to death itself, by the sentence of a court martial. To this our
young men will be more immediately subjected, as a select militia, composed of them, will best answer the
purposes of government.
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50
Secondly, the rights of conscience may be violated, as there is no exemption of those persons who are
conscientiously scrupulous of hearing arms. These compose a respectable proportion of the community in
the State [Pennsylvania]. This is the more remarkable, because even when the distresses of the late war and
the evident disaffection of many citizens of that description inflamed our passions, and when every person
who was obliged to risk his own life must have been exasperated against such as on any account kept back
from the common danger, yet even then, when outrage and violence might have been expected, the rights
of conscience were held sacred.
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At this momentous crisis, the framers of our State Constitution made the most express and decided
declaration and stipulations in favor of the rights of conscience; but now, when no necessity exists, those
dearest rights of men are left insecure.
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Thirdly, the absolute command of Congress over the militia may be destructive of public liberty; for under
the guidance of an arbitrary government, they may be made the unwilling instruments of tyranny. The
militia of Pennsylvania may be marched to New England or Virginia to quell an insurrection occasioned by
the most galling oppression, and aided by the standing army, they will no doubt be successful in subduing
their liberty and independency. But in so doing, although the magnanimity of their minds will be
extinguished, yet the meaner passions of resentment and revenge will be increased, and these in turn will
be the ready and obedient instruments of despotism to enslave the others; and that with an irritated
vengeance. Thus may the militia be made the instruments of crushing the last efforts of expiring liberty, of
riveting the chains of despotism on their fellow-citizens, and on one another. This power can be exercised
not only without violating the Constitution, but in strict conformity with it; it is calculated for this express
purpose, and will doubtless be executed accordingly.
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As this government will not enjoy the confidence of the people, but be executed by force, it will be a very
expensive and burdensome government. The standing army must be numerous, and as a further support, it
wilt be the policy of this government to multiply officers in every department; judges, collectors, taxgatherers, excisemen and the whole host of revenue officers, will swarm over the land, devouring the hard
earnings of the industrious like the locusts of old, impoverishing and desolating all before them. . . .
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7
TO THE powers proposed to be conferred upon the federal government, in respect to the creation and
direction of the national forces, I have met with but one specific objection, which, if I understand it right, is
this, that proper provision has not been made against the existence of standing armies in time of peace; an
objection which, I shall now endeavor to show, rests on weak and unsubstantial foundations.
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It has indeed been brought forward in the most vague and general form, supported only by bold assertions,
without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to
the practice of other free nations, and to the general sense of America, as expressed in most of the existing
constitutions. The proprietary of this remark will appear, the moment it is recollected that the objection
under consideration turns upon a supposed necessity of restraining the LEGISLATIVE authority of the
nation, in the article of military establishments; a principle unheard of, except in one or two of our State
constitutions, and rejected in all the rest.
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19
A stranger to our politics, who was to read our newspapers at the present juncture, without having
previously inspected the plan reported by the convention, would be naturally led to one of two conclusions:
either that it contained a positive injunction, that standing armies should be kept up in time of peace; or
that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any
shape, to the control of the legislature.
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26
27
If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor
the other was the case; that the whole power of raising armies was lodged in the LEGISLATURE, not in the
EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people
periodically elected; and that instead of the provision he had supposed in favor of standing armies, there
was to be found, in respect to this object, an important qualification even of the legislative discretion, in
that clause which forbids the appropriation of money for the support of an army for any longer period than
two years a precaution which, upon a nearer view of it, will appear to be a great and real security against
the keeping up of troops without evident necessity.
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30
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33
Disappointed in his first surmise, the person I have supposed would be apt to pursue his conjectures a little
further. He would naturally say to himself, it is impossible that all this vehement and pathetic declamation
can be without some colorable pretext. It must needs be that this people, so jealous of their liberties, have,
in all the preceding models of the constitutions which they have established, inserted the most precise and
rigid precautions on this point, the omission of which, in the new plan, has given birth to all this
apprehension and clamor.
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35
If, under this impression, he proceeded to pass in review the several State constitutions, how great would
29
be his disappointment to find that TWO ONLY of them contained an interdiction of standing armies in
29
This statement of the matter is taken from the printed collection of State constitutions. Pennsylvania and
North Carolina are the two which contain the interdiction in these words: "As standing armies in time of
peace are dangerous to liberty, THEY OUGHT NOT to be kept up." This is, in truth, rather a CAUTION than a
PROHIBITION. New Hampshire, Massachusetts, Delaware, and Maryland have, in each of their bils of rights,
a clause to this effect: "Standing armies are dangerous to liberty, and ought not to be raised or kept up
WITHOUT THE CONSENT OF THE LEGISLATURE"; which is a formal admission of the authority of the
Legislature. New York has no bills of rights, and her constitution says not a word about the matter. No bills
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time of peace; that the other eleven had either observed a profound silence on the subject, or had in
express terms admitted the right of the Legislature to authorize their existence.
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Still, however he would be persuaded that there must be some plausible foundation for the cry raised on
this head. He would never be able to imagine, while any source of information remained unexplored, that it
was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to
deceive, or by the overflowings of a zeal too intemperate to be ingenuous. It would probably occur to him,
that he would be likely to find the precautions he was in search of in the primitive compact between the
States. Here, at length, he would expect to meet with a solution of the enigma. No doubt, he would observe
to himself, the existing Confederation must contain the most explicit provisions against military
establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the
discontent which appears to influence these political champions.
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If he should now apply himself to a careful and critical survey of the articles of Confederation, his
astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected
discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with
jealous circumspection, restricted the authority of the State legislatures in this particular, had not imposed
a single restraint on that of the United States. If he happened to be a man of quick sensibility, or ardent
temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister
and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all
sincere lovers of their country! How else, he would say, could the authors of them have been tempted to
vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the
general sense of America as declared in its different forms of government, and in which it has even
superadded a new and powerful guard unknown to any of them? If, on the contrary, he happened to be a
man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would
lament, that in a matter so interesting to the happiness of millions, the true merits of the question should
be perplexed and entangled by expedients so unfriendly to an impartial and right determination. Even such
a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an
intention to mislead the people by alarming their passions, rather than to convince them by arguments
addressed to their understandings.
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But however little this objection may be countenanced, even by precedents among ourselves, it may be
satisfactory to take a nearer view of its intrinsic merits. From a close examination it will appear that
restraints upon the discretion of the legislature in respect to military establishments in time of peace,
would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be
observed.
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Though a wide ocean separates the United States from Europe, yet there are various considerations that
warn us against an excess of confidence or security. On one side of us, and stretching far into our rear, are
growing settlements subject to the dominion of Britain. On the other side, and extending to meet the
British settlements, are colonies and establishments subject to the dominion of Spain. This situation and the
vicinity of the West India Islands, belonging to these two powers create between them, in respect to their
American possessions and in relation to us, a common interest. The savage tribes on our Western frontier
ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us,
and most to hope from them. The improvements in the art of navigation have, as to the facility of
communication, rendered distant nations, in a great measure, neighbors. Britain and Spain are among the
of rights appear annexed to the constitutions of the other States, except the foregoing, and their
constitutions are equally silent. I am told, … …however that one or two States have bills of rights which do
not appear in this collection; but that those also recognize the right of the legislative authority in this
respect.
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principal maritime powers of Europe. A future concert of views between these nations ought not to be
regarded as improbable. The increasing remoteness of consanguinity is every day diminishing the force of
the family compact between France and Spain. And politicians have ever with great reason considered the
ties of blood as feeble and precarious links of political connection. These circumstances combined,
admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger.
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Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small
garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it
should only be against the ravages and depredations of the Indians. These garrisons must either be
furnished by occasional detachments from the militia, or by permanent corps in the pay of the government.
The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit
to be dragged from their occupations and families to perform that most disagreeable duty in times of
profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a
frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of
individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to
the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the
government amounts to a standing army in time of peace; a small one, indeed, but not the less real for
being small. Here is a simple view of the subject, that shows us at once the impropriety of a constitutional
interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence
of the legislature.
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In proportion to our increase in strength, it is probable, nay, it may be said certain, that Britain and Spain
would augment their military establishments in our neighborhood. If we should not be willing to be
exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it
expedient to increase our frontier garrisons in some ratio to the force by which our Western settlements
might be annoyed. There are, and will be, particular posts, the possession of which will include the
command of large districts of territory, and facilitate future invasions of the remainder. It may be added
that some of those posts will be keys to the trade with the Indian nations. Can any man think it would be
wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring
and formidable powers? To act this part would be to desert all the usual maxims of prudence and policy.
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If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as
soon as possible, to have a navy. To this purpose there must be dock-yards and arsenals; and for the
defense of these, fortifications, and probably garrisons. When a nation has become so powerful by sea that
it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but
where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an
indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes
of the fleet itself.
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FED25: THE SAME SUBJECT CONTINUED (THE POWERS NECESSARY TO THE COMMON DEFENSE FURTHER
CONSIDERED)
1
2
HAMILTON
3
4
5
6
7
8
IT MAY perhaps be urged that the objects enumerated in the preceding number ought to be provided for by
the State governments, under the direction of the Union. But this would be, in reality, an inversion of the
primary principle of our political association, as it would in practice transfer the care of the common
defense from the federal head to the individual members: a project oppressive to some States, dangerous
to all, and baneful to the Confederacy.
9
10
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15
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25
The territories of Britain, Spain, and of the Indian nations in our neighborhood do not border on particular
States, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore
common. And the means of guarding against it ought, in like manner, to be the objects of common councils
and of a common treasury. It happens that some States, from local situation, are more directly exposed.
New York is of this class. Upon the plan of separate provisions, New York would have to sustain the whole
weight of the establishments requisite to her immediate safety, and to the mediate or ultimate protection
of her neighbors. This would neither be equitable as it respected New York nor safe as it respected the
other States. Various inconveniences would attend such a system. The States, to whose lot it might fall to
support the necessary establishments, would be as little able as willing, for a considerable time to come, to
bear the burden of competent provisions. The security of all would thus be subjected to the parsimony,
improvidence, or inability of a part. If the resources of such part becoming more abundant and extensive,
its provisions should be proportionally enlarged, the other States would quickly take the alarm at seeing the
whole military force of the Union in the hands of two or three of its members, and those probably amongst
the most powerful. They would each choose to have some counterpoise, and pretenses could easily be
contrived. In this situation, military establishments, nourished by mutual jealousy, would be apt to swell
beyond their natural or proper size; and being at the separate disposal of the members, they would be
engines for the abridgment or demolition of the national authority.
26
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34
35
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37
Reasons have been already given to induce a supposition that the State governments will too naturally be
prone to a rivalship with that of the Union, the foundation of which will be the love of power; and that in
any contest between the federal head and one of its members the people will be most apt to unite with
their local government. If, in addition to this immense advantage, the ambition of the members should be
stimulated by the separate and independent possession of military forces, it would afford too strong a
temptation and too great a facility to them to make enterprises upon, and finally to subvert, the
constitutional authority of the Union. On the other hand, the liberty of the people would be less safe in this
state of things than in that which left the national forces in the hands of the national government. As far as
an army may be considered as a dangerous weapon of power, it had better be in those hands of which the
people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth,
which the experience of ages has attested, that the people are always most in danger when the means of
injuring their rights are in the possession of those of whom they entertain the least suspicion.
38
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40
41
42
The framers of the existing Confederation, fully aware of the danger to the Union from the separate
possession of military forces by the States, have, in express terms, prohibited them from having either ships
or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and
military establishments under State authority are not less at variance with each other than a due supply of
the federal treasury and the system of quotas and requisitions.
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There are other lights besides those already taken notice of, in which the impropriety of restraints on the
discretion of the national legislature will be equally manifest. The design of the objection, which has been
mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it
is designed the prohibition should extend; whether to raising armies as well as to KEEPING THEM UP in a
season of tranquillity or not. If it be confined to the latter it will have no precise signification, and it will be
ineffectual for the purpose intended. When armies are once raised what shall be denominated "keeping
them up," contrary to the sense of the Constitution? What time shall be requisite to ascertain the violation?
Shall it be a week, a month, a year? Or shall we say they may be continued as long as the danger which
occasioned their being raised continues? This would be to admit that they might be kept up IN TIME OF
PEACE, against threatening or impending danger, which would be at once to deviate from the literal
meaning of the prohibition, and to introduce an extensive latitude of construction. Who shall judge of the
continuance of the danger? This must undoubtedly be submitted to the national government, and the
matter would then be brought to this issue, that the national government, to provide against apprehended
danger, might in the first instance raise troops, and might afterwards keep them on foot as long as they
supposed the peace or safety of the community was in any degree of jeopardy. It is easy to perceive that a
discretion so latitudinary as this would afford ample room for eluding the force of the provision.
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66
The supposed utility of a provision of this kind can only be founded on the supposed probability, or at least
possibility, of a combination between the executive and the legislative, in some scheme of usurpation.
Should this at any time happen, how easy would it be to fabricate pretenses of approaching danger! Indian
hostilities, instigated by Spain or Britain, would always be at hand. Provocations to produce the desired
appearances might even be given to some foreign power, and appeased again by timely concessions. If we
can reasonably presume such a combination to have been formed, and that the enterprise is warranted by
a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext,
may be applied to the execution of the project.
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If, to obviate this consequence, it should be resolved to extend the prohibition to the RAISING of armies in
time of peace, the United States would then exhibit the most extraordinary spectacle which the world has
yet seen, that of a nation incapacitated by its Constitution to prepare for defense, before it was actually
invaded. As the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an
enemy within our territories must be waited for, as the legal warrant to the government to begin its levies
of men for the protection of the State. We must receive the blow, before we could even prepare to return
it. All that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be
abstained from, as contrary to the genuine maxims of a free government. We must expose our property
and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and
defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might
endanger that liberty, by an abuse of the means necessary to its preservation.
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Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times
equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost
millions to the United States that might have been saved. The facts which, from our own experience, forbid
a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady
operations of war against a regular and disciplined army can only be successfully conducted by a force of
the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The
American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal
monuments to their fame; but the bravest of them feel and know that the liberty of their country could not
have been established by their efforts alone, however great and valuable they were. War, like most other
things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.
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All violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself.
Pennsylvania, at this instant, affords an example of the truth of this remark. The Bill of Rights of that State
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declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace.
Pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or
two of her counties, has resolved to raise a body of troops; and in all probability will keep them up as long
as there is any appearance of danger to the public peace. The conduct of Massachusetts affords a lesson on
the same subject, though on different ground. That State (without waiting for the sanction of Congress, as
the articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection,
and still keeps a corps in pay to prevent a revival of the spirit of revolt. The particular constitution of
Massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases
are likely to occur under our government, as well as under those of other nations, which will sometimes
render a military force in time of peace essential to the security of the society, and that it is therefore
improper in this respect to control the legislative discretion. It also teaches us, in its application to the
United States, how little the rights of a feeble government are likely to be respected, even by its own
constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle
with public necessity.
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116
It was a fundamental maxim of the Lacedaemonian commonwealth, that the post of admiral should not be
conferred twice on the same person. The Peloponnesian confederates, having suffered a severe defeat at
sea from the Athenians, demanded Lysander, who had before served with success in that capacity, to
command the combined fleets. The Lacedaemonians, to gratify their allies, and yet preserve the semblance
of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing Lysander
with the real power of admiral, under the nominal title of vice-admiral. This instance is selected from
among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic
examples; which is, that nations pay little regard to rules and maxims calculated in their very nature to run
counter to the necessities of society. Wise politicians will be cautious about fettering the government with
restrictions that cannot be observed, because they know that every breach of the fundamental laws,
though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of
rulers towards the constitution of a country, and forms a precedent for other breaches where the same
plea of necessity does not exist at all, or is less urgent and palpable.
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FED26: THE IDEA OF RESTRAINING THE LEGISLATIVE AUTHORITY IN REGARD TO THE COMMON DEFENSE
CONSIDERED.
1
2
HAMILTON
3
4
5
6
7
8
9
10
IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that
happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy
of government with the security of private rights. A failure in this delicate and important point is the great
source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in
our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to
another; we may try change after change; but we shall never be likely to make any material change for the
better.
11
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29
The idea of restraining the legislative authority, in the means of providing for the national defense, is one of
those refinements which owe their origin to a zeal for liberty more ardent than enlightened. We have seen,
however, that it has not had thus far an extensive prevalency; that even in this country, where it made its
first appearance, Pennsylvania and North Carolina are the only two States by which it has been in any
degree patronized; and that all the others have refused to give it the least countenance; wisely judging that
confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating
power; and that it is better to hazard the abuse of that confidence than to embarrass the government and
endanger the public safety by impolitic restrictions on the legislative authority. The opponents of the
proposed Constitution combat, in this respect, the general decision of America; and instead of being taught
by experience the propriety of correcting any extremes into which we may have heretofore run, they
appear disposed to conduct us into others still more dangerous, and more extravagant. As if the tone of
government had been found too high, or too rigid, the doctrines they teach are calculated to induce us to
depress or to relax it, by expedients which, upon other occasions, have been condemned or forborne. It
may be affirmed without the imputation of invective, that if the principles they inculcate, on various points,
could so far obtain as to become the popular creed, they would utterly unfit the people of this country for
any species of government whatever. But a danger of this kind is not to be apprehended. The citizens of
America have too much discernment to be argued into anarchy. And I am much mistaken, if experience has
not wrought a deep and solemn conviction in the public mind, that greater energy of government is
essential to the welfare and prosperity of the community.
30
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34
It may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the
exclusion of military establishments in time of peace. Though in speculative minds it may arise from a
contemplation of the nature and tendency of such institutions, fortified by the events that have happened
in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which
we derive from the nation from whom the inhabitants of these States have in general sprung.
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In England, for a long time after the Norman Conquest, the authority of the monarch was almost unlimited.
Inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by
the people, till the greatest part of its most formidable pretensions became extinct. But it was not till the
revolution in 1688, which elevated the Prince of Orange to the throne of Great Britain, that English liberty
was completely triumphant. As incident to the undefined power of making war, an acknowledged
prerogative of the crown, Charles II. had, by his own authority, kept on foot in time of peace a body of
5,000 regular troops. And this number James II. increased to 30,000; who were paid out of his civil list. At
the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights
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then framed, that "the raising or keeping a standing army within the kingdom in time of peace, UNLESS
WITH THE CONSENT OF PARLIAMENT, was against law."
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In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of
standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere
authority of the executive magistrate. The patriots, who effected that memorable revolution, were too
temperate, too wellinformed, to think of any restraint on the legislative discretion. They were aware that a
certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set
to the national exigencies; that a power equal to every possible contingency must exist somewhere in the
government: and that when they referred the exercise of that power to the judgment of the legislature,
they had arrived at the ultimate point of precaution which was reconcilable with the safety of the
community.
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From the same source, the people of America may be said to have derived an hereditary impression of
danger to liberty, from standing armies in time of peace. The circumstances of a revolution quickened the
public sensibility on every point connected with the security of popular rights, and in some instances raise
the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic.
The attempts of two of the States to restrict the authority of the legislature in the article of military
establishments, are of the number of these instances. The principles which had taught us to be jealous of
the power of an hereditary monarch were by an injudicious excess extended to the representatives of the
people in their popular assemblies. Even in some of the States, where this error was not adopted, we find
unnecessary declarations that standing armies ought not to be kept up, in time of peace, WITHOUT THE
CONSENT OF THE LEGISLATURE. I call them unnecessary, because the reason which had introduced a similar
provision into the English Bill of Rights is not applicable to any of the State constitutions. The power of
raising armies at all, under those constitutions, can by no construction be deemed to reside anywhere else,
than in the legislatures themselves; and it was superfluous, if not absurd, to declare that a matter should
not be done without the consent of a body, which alone had the power of doing it. Accordingly, in some of
these constitutions, and among others, in that of this State of New York, which has been justly celebrated,
both in Europe and America, as one of the best of the forms of government established in this country,
there is a total silence upon the subject.
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It is remarkable, that even in the two States which seem to have meditated an interdiction of military
establishments in time of peace, the mode of expression made use of is rather cautionary than prohibitory.
It is not said, that standing armies SHALL NOT BE kept up, but that they OUGHT NOT to be kept up, in time
of peace. This ambiguity of terms appears to have been the result of a conflict between jealousy and
conviction; between the desire of excluding such establishments at all events, and the persuasion that an
absolute exclusion would be unwise and unsafe.
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Can it be doubted that such a provision, whenever the situation of public affairs was understood to require
a departure from it, would be interpreted by the legislature into a mere admonition, and would be made to
yield to the necessities or supposed necessities of the State? Let the fact already mentioned, with respect to
Pennsylvania, decide. What then (it may be asked) is the use of such a provision, if it cease to operate the
moment there is an inclination to disregard it?
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Let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and
that which is contained in the new Constitution, for restraining the appropriations of money for military
purposes to the period of two years. The former, by aiming at too much, is calculated to effect nothing; the
latter, by steering clear of an imprudent extreme, and by being perfectly compatible with a proper provision
for the exigencies of the nation, will have a salutary and powerful operation.
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The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to
deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point;
and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT
LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even
incautious enough to be willing to repose in it so improper a confidence. As the spirit of party, in different
degrees, must be expected to infect all political bodies, there will be, no doubt, persons in the national
legislature willing enough to arraign the measures and criminate the views of the majority. The provision
for the support of a military force will always be a favorable topic for declamation. As often as the question
comes forward, the public attention will be roused and attracted to the subject, by the party in opposition;
and if the majority should be really disposed to exceed the proper limits, the community will be warned of
the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in
the national legislature itself, as often as the period of discussion arrived, the State legislatures, who will
always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against
encroachments from the federal government, will constantly have their attention awake to the conduct of
the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the
people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.
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Schemes to subvert the liberties of a great community REQUIRE TIME to mature them for execution. An
army, so large as seriously to menace those liberties, could only be formed by progressive augmentations;
which would suppose, not merely a temporary combination between the legislature and executive, but a
continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it
probable that it would be persevered in, and transmitted along through all the successive variations in a
representative body, which biennial elections would naturally produce in both houses? Is it presumable,
that every man, the instant he took his seat in the national Senate or House of Representatives, would
commence a traitor to his constituents and to his country? Can it be supposed that there would not be
found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise
his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end
of all delegated authority. The people should resolve to recall all the powers they have heretofore parted
with out of their own hands, and to divide themselves into as many States as there are counties, in order
that they may be able to manage their own concerns in person.
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If such suppositions could even be reasonably made, still the concealment of the design, for any duration,
would be impracticable. It would be announced, by the very circumstance of augmenting the army to so
great an extent in time of profound peace. What colorable reason could be assigned, in a country so
situated, for such vast augmentations of the military force? It is impossible that the people could be long
deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery.
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It has been said that the provision which limits the appropriation of money for the support of an army to
the period of two years would be unavailing, because the Executive, when once possessed of a force large
enough to awe the people into submission, would find resources in that very force sufficient to enable him
to dispense with supplies from the acts of the legislature. But the question again recurs, upon what
pretense could he be put in possession of a force of that magnitude in time of peace? If we suppose it to
have been created in consequence of some domestic insurrection or foreign war, then it becomes a case
not within the principles of the objection; for this is levelled against the power of keeping up troops in time
of peace. Few persons will be so visionary as seriously to contend that military forces ought not to be raised
to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances
should make it necessary to have an army so numerous as to hazard its liberty, this is one of those
calamities for which there is neither preventative nor cure. It cannot be provided against by any possible
form of government; it might even result from a simple league offensive and defensive, if it should ever be
necessary for the confederates or allies to form an army for common defense.
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But it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely
asserted that it is an evil altogether unlikely to attend us in the latter situation. It is not easy to conceive a
possibility that dangers so formidable can assail the whole Union, as to demand a force considerable
enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived
from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. But in a state
of disunion (as has been fully shown in another place), the contrary of this supposition would become not
only probable, but almost unavoidable.
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IT HAS been urged, in different shapes, that a Constitution of the kind proposed by the convention cannot
operate without the aid of a military force to execute its laws. This, however, like most other things that
have been alleged on that side, rests on mere general assertion, unsupported by any precise or intelligible
designation of the reasons upon which it is founded. As far as I have been able to divine the latent meaning
of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise
of federal authority in any matter of an internal nature. Waiving any exception that might be taken to the
inaccuracy or inexplicitness of the distinction between internal and external, let us inquire what ground
there is to presuppose that disinclination in the people. Unless we presume at the same time that the
powers of the general government will be worse administered than those of the State government, there
seems to be no room for the presumption of ill-will, disaffection, or opposition in the people. I believe it
may be laid down as a general rule that their confidence in and obedience to a government will commonly
be proportioned to the goodness or badness of its administration. It must be admitted that there are
exceptions to this rule; but these exceptions depend so entirely on accidental causes, that they cannot be
considered as having any relation to the intrinsic merits or demerits of a constitution. These can only be
judged of by general principles and maxims.
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Various reasons have been suggested, in the course of these papers, to induce a probability that the general
government will be better administered than the particular governments; the principal of which reasons are
that the extension of the spheres of election will present a greater option, or latitude of choice, to the
people; that through the medium of the State legislatures which are select bodies of men, and which are to
appoint the members of the national Senate there is reason to expect that this branch will generally be
composed with peculiar care and judgment; that these circumstances promise greater knowledge and more
extensive information in the national councils, and that they will be less apt to be tainted by the spirit of
faction, and more out of the reach of those occasional ill-humors, or temporary prejudices and propensities,
which, in smaller societies, frequently contaminate the public councils, beget injustice and oppression of a
part of the community, and engender schemes which, though they gratify a momentary inclination or
desire, terminate in general distress, dissatisfaction, and disgust. Several additional reasons of considerable
force, to fortify that probability, will occur when we come to survey, with a more critical eye, the interior
structure of the edifice which we are invited to erect. It will be sufficient here to remark, that until
satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be
administered in such a manner as to render it odious or contemptible to the people, there can be no
reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction
from them, or will stand in need of any other methods to enforce their execution, than the laws of the
particular members.
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The hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong
discouragement to it. Will not the government of the Union, which, if possessed of a due degree of power,
can call to its aid the collective resources of the whole Confederacy, be more likely to repress the FORMER
sentiment and to inspire the LATTER, than that of a single State, which can only command the resources
within itself? A turbulent faction in a State may easily suppose itself able to contend with the friends to the
government in that State; but it can hardly be so infatuated as to imagine itself a match for the combined
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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.
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I will, in this place, hazard an observation, which will not be the less just because to some it may appear
new; which is, that the more the operations of the national authority are intermingled in the ordinary
exercise of government, the more the citizens are accustomed to meet with it in the common occurrences
of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into
those objects which touch the most sensible chords and put in motion the most active springs of the human
heart, the greater will be the probability that it will conciliate the respect and attachment of the
community. Man is very much a creature of habit. A thing that rarely strikes his senses will generally have
but little influence upon his mind. A government continually at a distance and out of sight can hardly be
expected to interest the sensations of the people. The inference is, that the authority of the Union, and the
affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what
are called matters of internal concern; and will have less occasion to recur to force, in proportion to the
familiarity and comprehensiveness of its agency. The more it circulates through those channels and
currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and
perilous expedients of compulsion.
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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.
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The plan reported by the convention, by extending the authority of the federal head to the individual
citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the
execution of its laws. It is easy to perceive that this will tend to destroy, in the common apprehension, all
distinction between the sources from which they might proceed; and will give the federal government the
same advantage for securing a due obedience to its authority which is enjoyed by the government of each
State, in addition to the influence on public opinion which will result from the important consideration of its
having power to call to its assistance and support the resources of the whole Union. It merits particular
attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of
its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers,
legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the
legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of
the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be
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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?
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The sophistry which has been employed to show that this will tend to the destruction of the State
governments, will, in its will, in its proper place, be fully detected.
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THAT there may happen cases in which the national government may be necessitated to resort to force,
cannot be denied. Our own experience has corroborated the lessons taught by the examples of other
nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that
seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and
eruptions from the natural body; that the idea of governing at all times by the simple force of law (which
we have been told is the only admissible principle of republican government), has no place but in the
reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction.
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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.
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If, on the contrary, the insurrection should pervade a whole State, or a principal part of it, the employment
of a different kind of force might become unavoidable. It appears that Massachusetts found it necessary to
raise troops for repressing the disorders within that State; that Pennsylvania, from the mere apprehension
of commotions among a part of her citizens, has thought proper to have recourse to the same measure.
Suppose the State of New York had been inclined to re-establish her lost jurisdiction over the inhabitants of
Vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone?
Would she not have been compelled to raise and to maintain a more regular force for the execution of her
design? If it must then be admitted that the necessity of recurring to a force different from the militia, in
cases of this extraordinary nature, is applicable to the State governments themselves, why should the
possibility, that the national government might be under a like necessity, in similar extremities, be made an
objection to its existence? Is it not surprising that men who declare an attachment to the Union in the
abstract, should urge as an objection to the proposed Constitution what applies with tenfold weight to the
plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence
of civil society upon an enlarged scale? Who would not prefer that possibility to the unceasing agitations
and frequent revolutions which are the continual scourges of petty republics?
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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
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governments for different parcels of them, or even if there should be an entire separation of the States,
there might sometimes be a necessity to make use of a force constituted differently from the militia, to
preserve the peace of the community and to maintain the just authority of the laws against those violent
invasions of them which amount to insurrections and rebellions.
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Independent of all other reasonings upon the subject, it is a full answer to those who require a more
peremptory provision against military establishments in time of peace, to say that the whole power of the
proposed government is to be in the hands of the representatives of the people. This is the essential, and,
after all, only efficacious security for the rights and privileges of the people, which is attainable in civil
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society.
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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.
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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!
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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
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distant States would have it in their power to make head with fresh forces. The advantages obtained in one
place must be abandoned to subdue the opposition in others; and the moment the part which had been
reduced to submission was left to itself, its efforts would be renewed, and its resistance revive.
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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.
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THE power of regulating the militia, and of commanding its services in times of insurrection and invasion
are natural incidents to the duties of superintending the common defense, and of watching over the
internal peace of the Confederacy.
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It requires no skill in the science of war to discern that uniformity in the organization and discipline of the
militia would be attended with the most beneficial effects, whenever they were called into service for the
public defense. It would enable them to discharge the duties of the camp and of the field with mutual
intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit
them much sooner to acquire the degree of proficiency in military functions which would be essential to
their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the
militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the
plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining
the militia, and for governing such part of them as may be employed in the service of the United States,
RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF
TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS."
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Of the different grounds which have been taken in opposition to the plan of the convention, there is none
that was so little to have been expected, or is so untenable in itself, as the one from which this particular
provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it
ought certainly to be under the regulation and at the disposal of that body which is constituted the
guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the
militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take
away the inducement and the pretext to such unfriendly institutions. If the federal government can
command the aid of the militia in those emergencies which call for the military arm in support of the civil
magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail
itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more
certain method of preventing its existence than a thousand prohibitions upon paper.
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In order to cast an odium upon the power of calling forth the militia to execute the laws of the Union, it has
been remarked that there is nowhere any provision in the proposed Constitution for calling out the POSSE
COMITATUS, to assist the magistrate in the execution of his duty, whence it has been inferred, that military
force was intended to be his only auxiliary. There is a striking incoherence in the objections which have
appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable
opinion of the sincerity or fair dealing of their authors. The same persons who tell us in one breath, that the
powers of the federal government will be despotic and unlimited, inform us in the next, that it has not
authority sufficient even to call out the POSSE COMITATUS. The latter, fortunately, is as much short of the
truth as the former exceeds it. It would be as absurd to doubt, that a right to pass all laws NECESSARY AND
PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the
officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to
enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the
rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating
to it. It being therefore evident that the supposition of a want of power to require the aid of the POSSE
COMITATUS is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in
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its application to the authority of the federal government over the militia, is as uncandid as it is illogical.
What reason could there be to infer, that force was intended to be the sole instrument of authority, merely
because there is a power to make use of it when necessary? What shall we think of the motives which could
induce men of sense to reason in this manner? How shall we prevent a conflict between charity and
conviction?
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By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger
from the militia itself, in the hands of the federal government. It is observed that select corps may be
formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary
power. What plan for the regulation of the militia may be pursued by the national government, is
impossible to be foreseen. But so far from viewing the matter in the same light with those who object to
select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member
of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in
substance, the following discourse:
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"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were
capable of being carried into execution. A tolerable expertness in military movements is a business that
requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige
the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose
of going through military exercises and evolutions, as often as might be necessary to acquire the degree of
perfection which would entitle them to the character of a well-regulated militia, would be a real grievance
to the people, and a serious public inconvenience and loss. It would form an annual deduction from the
productive labor of the country, to an amount which, calculating upon the present numbers of the people,
would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing
which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the
experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably
be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in
order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of
a year.
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"But though the scheme of disciplining the whole nation must be abandoned as mischievous or
impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as
possible, be adopted for the proper establishment of the militia. The attention of the government ought
particularly to be directed to the formation of a select corps of moderate extent, upon such principles as
will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an
excellent body of well-trained militia, ready to take the field whenever the defense of the State shall
require it. This will not only lessen the call for military establishments, but if circumstances should at any
time oblige the government to form an army of any magnitude that army can never be formidable to the
liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and
the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears
to me the only substitute that can be devised for a standing army, and the best possible security against it,
if it should exist."
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Thus differently from the adversaries of the proposed Constitution should I reason on the same subject,
deducing arguments of safety from the very sources which they represent as fraught with danger and
perdition. But how the national legislature may reason on the point, is a thing which neither they nor I can
foresee.
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There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that
one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill,
like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the
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serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we
may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there
be from men who are daily mingling with the rest of their countrymen and who participate with them in the
same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred
from a power in the Union to prescribe regulations for the militia, and to command its services when
necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE
OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable
establishment under the federal government, the circumstance of the officers being in the appointment of
the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to
them a preponderating influence over the militia.
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In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing
some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind
nothing but frightful and distorted shapes—
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"Gorgons, hydras, and chimeras dire";
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discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster.
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A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place
respecting the power of calling for the services of the militia. That of New Hampshire is to be marched to
Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. Nay,
the debts due to the French and Dutch are to be paid in militiamen instead of louis d'ors and ducats. At one
moment there is to be a large army to lay prostrate the liberties of the people; at another moment the
militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican
contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue
the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that
their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible
truths?
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If there should be an army to be made use of as the engine of despotism, what need of the militia? If there
should be no army, whither would the militia, irritated by being called upon to undertake a distant and
hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen,
direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a
project, to crush them in their imagined intrenchments of power, and to make them an example of the just
vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a
numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of
their intended usurpations? Do they usually commence their career by wanton and disgustful acts of
power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are
suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they
the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the
national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would
employ such preposterous means to accomplish their designs.
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In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State
should be marched into another, to resist a common enemy, or to guard the republic against the violence of
faction or sedition. This was frequently the case, in respect to the first object, in the course of the late war;
and this mutual succor is, indeed, a principal end of our political association. If the power of affording it be
placed under the direction of the Union, there will be no danger of a supine and listless inattention to the
dangers of a neighbor, till its near approach had superadded the incitements of self-preservation to the too
feeble impulses of duty and sympathy.
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PUBLIUS
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AFED28: THE USE OF COERCION BY THE NEW GOVERNMENT (PART III)
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This essay was published in either the (Philadelphia) Freeman's Journal; or, The North-American
Intelligencer, January 16, 1788.
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The Congress under the new Constitution have the power "of organizing, arming and disciplining the militia,
and of governing them when in the service of the United States, giving to the separate States the
appointment of the officers and the authority of training the militia according to the discipline prescribed by
Congress." Let us inquire why they have assumed this great power. Was it to strengthen the power which is
now lodged in your hands, and relying upon you and you solely for aid and support to the civil power in the
execution of all the laws of the new Congress? Is this probable? Does the complexion of this new plan
countenance such a supposition? When they unprecedently claim the power of raising and supporting
armies, do they tell you for what purposes they are to be raised? How they are to be employed? How many
they are to consist of, and where to be stationed? Is this power fettered with any one of those restrictions,
which will show they depend upon the militia, and not upon this infernal engine of oppression to execute
their civil laws? The nature of the demand in itself contradicts such a supposition, and forces you to believe
that it is for none of these causes-but rather for the purpose of consolidating and finally destroying your
strength, as your respective governments are to be destroyed. They well know the impolicy of putting or
keeping arms in the hands of a nervous people, at a distance from the seat of a government, upon whom
they mean to exercise the powers granted in that government. They have no idea of calling upon or trusting
to the party aggrieved to support and enforce their own grievances, (notwithstanding they may select and
subject them to as strict subordination as regular troops) unless they have a standing army to back and
compel the execution of their orders. It is asserted by the most respectable writers upon government, that
a well regulated militia, composed of the yeomanry of the country, have ever been considered as the
bulwark of a free people. Tyrants have never placed any confidence on a militia composed of freemen.
Experience has taught them that a standing body of regular forces, whenever they can be completely
introduced, are always efficacious in enforcing their edicts, however arbitrary; and slaves by profession
themselves, are "nothing loth" to break down the barriers of freedom with a gout. No, my fellow citizens,
this plainly shows they do not mean to depend upon the citizens of the States alone to enforce their
powers. They mean to lean upon something more substantial and summary. They have left the
appointment of officers in the breasts of the several States; but this appears to me an insult rather than a
privilege, for what avails this right if they at their pleasure may arm or disarm all or any part of the freemen
of the United States, so that when their army is sufficiently numerous, they may put it out of the power of
the freemen militia of America to assert and defend their liberties, however they might be encroached
upon by Congress. Does any, after reading this provision for a regular standing army, suppose that they
intended to apply to the militia in all cases, and to pay particular attention to making them the bulwark of
this continent? And would they not be equal to such an undertaking? Are they not abundantly able to give
security and stability to your government as long as it is free? Are they not the only proper persons to do it?
Are they not the most respectable body of yeomanry in that character upon earth? Have they not been
engaged in some of the most brilliant actions in America, and more than once decided the fate of princes?
In short, do they not preclude the necessity of any standing army whatsoever, unless in case of invasion?
And in that case it would be time enough to raise them, for no free government under heaven, with a well
disciplined militia, was ever yet subdued by mercenary troops.
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The advocates at the present day, for a standing army in the new Congress, pretend it is necessary for the
respectability of government. I defy them to produce an instance in any country, in the Old or New World,
where they have not finally done away the liberties of the people. Every writer upon government-- Locke,
Sidney, Hampden, and a list of others have uniformly asserted, that standing armies are a solecism in any
government; that no nation ever supported them, that did not resort to, rely upon, and finally become a
prey to them. No western historians have yet been hardy enough to advance principles that look a different
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way. What historians have asserted, all the Grecian republics have verified. They are brought up to
obedience and unconditional submission; with arms in their bands, they are taught to feel the weight of
rigid discipline; they are excluded from the enjoyments which liberty gives to its votaries; they, in
consequence, hate and envy the rest of the community in which they are placed, and indulge a malignant
pleasure in destroying those privileges to which they never can be admitted. "Without a standing army,"
(says the Marquis of Beccaria), "in every society there is an effort constantly tending to confer on one part
the height and to reduce the other to the extreme of weakness, and this is of itself sufficient to employ the
people's attention." There is no instance of any government being reduced to a confirmed tyranny without
military oppression. And the first policy of tyrants has been to annihilate all other means of national activity
and defense, when they feared opposition, and to rely solely upon standing troops. Repeated were the
trials, before the sovereigns of Europe dared to introduce them upon any pretext whatever; and the whole
record of the transactions of mankind cannot furnish an instance, (unless the proposed constitution may be
called part of that record) where the motives which caused that establishment were not completely
disguised. Peisistratus in Greece, and Dionysius in Syracuse, Charles in France, and Henry in England, all
cloaked their villainous intentions under an idea of raising a small body as a guard for their persons; and
Spain could not succeed in the same nefarious plan, until thro' the influence of an ambitious priest (who
have in all countries and in all ages, even at this day, encouraged and preached up arbitrary power) they
obtained it. "Caesar, who first attacked the commonwealth with mines, very soon opened his batteries."
Notwithstanding all these objections to this engine of oppression, which are made by the most experienced
men, and confirmed by every country where the rays of freedom ever extended-yet in America, which has
hitherto been her favorite abode; in this civilized territory, where property is so valuable, and men are
found with feelings that win not patiently submit to arbitrary control; in this western region, where, my
fellow countrymen, it is confessedly proper that you should associate and dwell in society from choice and
reflection, and not be kept together by force and fear-you are modestly requested to engraft into the
component parts of your constitution a Standing Army, without any qualifying restraints whatever, certainly
to exist somewhere in the bowels of your country in time of peace. It is very true that Lawyer [James]
Wilson-member of the Federal Convention, and who we may suppose breathes in some measure the spirit
of that body-tells you it is for the purpose of forming cantonments upon your frontiers, and for the dignity
and safety of your country, as it respects foreign nations. No man that loves his country could object to
their being raised for the first of these causes, but for the last it cannot be necessary. God has so separated
us by an extensive ocean from the rest of mankind; he hath so liberally endowed us with privileges, and so
abundantly taught us to esteem them precious, it would be impossible while we retain our integrity, and
advert to first principles, for any nation whatever to subdue us. We have succeeded in our opposition to the
most powerful people upon the globe; and the wound that America received in the struggle, where is it? As
speedily healed as the track in the ocean is buried by the succeeding wave. It has scarcely stopped her
progress, and our private dissensions only, at this moment, tarnish the lustre of the most illustrious infant
nation under heaven.
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You cannot help suspecting this gentleman [James Wilson], when he goes on to tell you "that standing
armies in time of peace have always been a topic of popular declamation, but Europe hath found them
necessary to maintain the appearance of strength in a season of the most profound tranquility." This shows
you his opinion-and that he, as one of the Convention, was for unequivocally establishing them in time of
peace; and to object to them, is a mere popular declamation. But I will not, my countrymen-I cannot believe
you to be of the same sentiment. Where is the standing army in the world that, like the musket they make
use of, hath been in time of peace brightened and burnished for the sake only of maintaining an
appearance of strength, without being put to a different use-without having had a pernicious influence
upon the morals, the habits, and the sentiments of society, and finally, taking a chief part in executing its
laws? . . .
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If tyranny is at all feared, the tyranny of the many is to be guarded against MORE than that of a single
person. The Athenians found by sad experience, that 30 tyrants were thirty times worse than one. A bad
aristocracy is thirty times worse than a bad monarchy, allowing each to have a standing army as
unrestricted as in the proposed constitution.
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If the people are not in general disposed to execute the powers of government, it is time to suspect there is
something wrong in that government; and rather than employ a standing army, they had better have
another. For, in my humble opinion, it is yet much too early to set it down for a fact, that mankind cannot
be governed but by force.
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AFED24: OBJECTIONS TO A STANDING ARMY (PART I)
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BRUTUS
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The first essay is taken from the ninth letter of "BRUTUS" which appeared in The New-York Journal, January
17, 1788.
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. . . . Standing armies are dangerous to the liberties of a people. . . . [If] necessary, the truth of the position
might be confirmed by the history of almost every nation in the world. A cloud of the most illustrious
patriots of every age and country, where freedom has been enjoyed, might be adduced as witnesses in
support of the sentiment. But I presume it would be useless, to enter into a labored argument, to prove to
the people of America, a position which has so long and so generally been received by them as a kind of
axiom.
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Some of the advocates for this new system controvert this sentiment, as they do almost every other that
has been maintained by the best writers on free government. Others, though they will not expressly deny,
that standing armies in times of peace are dangerous, yet join with these in maintaining, that it is proper
the general government should be vested with the power to do it. I shall now proceed to examine the
arguments they adduce in support of their opinions.
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A writer, in favor of this system, treats this objection as a ridiculous one. He supposes it would be as proper
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to provide against the introduction of Turkish Janizaries, or against making the Alcoran a rule of faith.
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From the positive, and dogmatic manner, in which this author delivers his opinions, and answers objections
made to his sentiments-one would conclude, that he was some pedantic pedagogue who had been
accustomed to deliver his dogmas to pupils, who always placed implicit faith in what he delivered.
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But, why is this provision so ridiculous? Because, says this author, it is unnecessary. But, why is it
unnecessary? Because, "the principles and habits, as well as the power of the Americans are directly
opposed to standing armies; and there is as little necessity to guard against them by positive constitutions,
as to prohibit the establishment of the Mahometan religion." It is admitted then, that a standing army in
time of peace is an evil. I ask then, why should this government be authorised to do evil? If the principles
and habits of the people of this country are opposed to standing armies in time of peace, if they do not
contribute to the public good, but would endanger the public liberty and happiness, why should the
government be vested with the power? No reason can be given, why rulers should be authorised to do,
what, if done, would oppose the principles and habits of the people, and endanger the public safety; but
there is every reason in the world, that they should be prohibited from the exercise of such a power. But
this author supposes, that no danger is to be apprehended from the exercise of this power, because if
armies are kept up, it will be by the people themselves, and therefore, to provide against it would be as
absurd as for a man to "pass a law in his family, that no troops should be quartered in his family by his
consent." This reasoning supposes, that the general government is to be exercised by the people of America
themselves. But such an idea is groundless and absurd. There is surely a distinction between the people and
their rulers, even when the latter are representatives of the former. They certainly are not identically the
same, and it cannot be disputed, but it may and often does happen, that they do not possess the same
sentiments or pursue the same interests. I think I have shown [in a previous paper] that as this government
is constructed, there is little reason to expect, that the interest of the people and their rulers will be the
same.
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1 A citizen of America [Noah Webster], An Examination Into the Leading Principles of the Federal
Constitution proposed by the late Convention held at Philadelphia. With Answers to the Principal
Objections Raised Against the System (Philadelphia, 1787), reprinted in Ford (ed.), Pamphlets pp. 29-65.
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Besides, if the habits and sentiments of the people of America are to be relied upon, as the sole security
against the encroachment of their rulers, all restrictions in constitutions are unnecessary; nothing more is
requisite, than to declare who shall be authorized to exercise the powers of government, and about this we
need not be very careful-for the habits and principles of the people will oppose every abuse of power. This I
suppose to be the sentiments of this author, as it seems to be of many of the advocates of this new system.
An opinion like this, is as directly opposed to the principles and habits of the people of America, as it is to
the sentiments of every writer of reputation on the science of government, and repugnant to the principles
of reason and common sense.
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The idea that there is no danger of the establishment of a standing army, under the new constitution, is
without foundation.
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It is a well known fact, that a number of those who had an agency in producing this system, and many of
those who it is probable will have a principal share in the administration of the government under it, if it is
adopted, are avowedly in favor of standing armies. It is a language common among them, "That no people
can be kept in order, unless the government have an army to awe them into obedience; it is necessary to
support the dignity of government, to have a military establishment. And there will not be wanting a variety
of plausible reasons to justify the raising one, drawn from the danger we are in from the Indians on our
frontiers, or from the European provinces in our neighborhood. If to this we add, that an army will afford a
decent support, and agreeable employment to the young men of many families, who are too indolent to
follow occupations that will require care and industry, and too poor to live without doing any business, we
can have little reason to doubt but that we shall have a large standing army as soon as this government can
find money to pay them, and perhaps sooner.
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A writer, who is the boast of the advocates of this new constitution, has taken great pains to show, that this
power was proper and necessary to be vested in the general government.
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He sets out with calling in question the candor and integrity of those who advance the objection; and with
insinuating, that it is their intention to mislead the people, by alarming their passions, rather than to
convince them by arguments addressed to their understandings.
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The man who reproves another for a fault, should be careful that he himself be not guilty of it. How far this
writer has manifested a spirit of candor, and has pursued fair reasoning on this subject, the impartial public
will judge, when his arguments pass before them in review.
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He first attempts to show, that this objection is futile and disingenuous, because the power to keep up
standing armies, in time of peace, is vested, under the present government, in the legislature of every state
in the union, except two. Now this is so far from being true, that it is expressly declared by the present
articles of confederation, that no body of forces "Shall 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 defence of such state." Now, was it candid and ingenuous to
endeavour to persuade the public, that the general government had no other power than your own
legislature have on this head; when the truth is, your legislature have no authority to raise and keep up any
forces?
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He next tells us, that the power given by this constitution, on this head, is similar to that which Congress
possess under the present confederation. As little ingenuity is manifested in this representation as in that of
the former.
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I shall not undertake to inquire whether or not Congress are vested with a power to keep up a standing
army in time of peace; it has been a subject warmly debated in Congress, more than once, since the peace;
and one of the most respectable states in the union, were so fully convinced that they had no such power,
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that they expressly instructed their delegates to enter a solemn protest against it on the journals of
Congress, should they attempt to exercise it.
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But should it be admitted that they have the power, there is such a striking dissimilarity between the
restrictions under which the present Congress can exercise it, and that of the proposed government, that
the comparison will serve rather to show the impropriety of vesting the proposed government with the
power, than of justifying it.
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It is acknowledged by this writer, that the powers of Congress, under the present confederation, amount to
little more than that of recommending. If they determine to raise troops, they are obliged to effect it
through the authority of the state legislatures. This will, in the first instance, be a most powerful restraint
upon them, against ordering troops to be raised. But if they should vote an army, contrary to the opinion
and wishes of the people, the legislatures of the respective states would not raise them. Besides, the
present Congress hold their places at the wilt and pleasure of the legislatures of the states who send them,
and no troops can be raised, but by the assent of nine states out of the thirteen. Compare the power
proposed to be lodged in the legislature on this head, under this constitution, with that vested in the
present Congress, and every person of the least discernment, whose understanding is not totally blinded by
prejudice, will perceive, that they bear no analogy to each other. Under the present confederation, the
representatives of nine states, out of thirteen, must assent to the raising of troops, or they cannot be
levied. Under the proposed constitution, a less number than the representatives of two states, in the house
of representatives, and the representatives of three states and an half in the senate, with the assent of the
president, may raise any number of troops they please. The present Congress are restrained from an undue
exercise of this power; from this consideration, they know the state legislatures, through whose authority it
must be carried into effect, would not comply with the requisition for the purpose, [if] it was evidently
opposed to the public good. The proposed constitution authorizes the legislature to carry their
determinations into execution, without intervention of any other body between them and the people. The
Congress under the present form are amenable to, and removable by, the legislatures of the respective
states, and are chosen for one year only. The proposed constitution does not make the members of the
legislature accountable to, or removable by the state legislatures at all; and they are chosen, the one house
for six, and the other for two years; and cannot be removed until their time of service is expired, let them
conduct ever so badly. The public will judge, from the above comparison, how just a claim this writer has to
that candor he asserts to possess. In the mean time, to convince him, and the advocates for this system,
that I possess some share of candor, I pledge myself to give up all opposition to it, on the head of standing
armies, if the power to raise them be restricted as it is in the present confederation; and I believe I may
safely answer, not only for myself, but for all who make the objection, that they will [not] be satisfied with
less.
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AFED25: OBJECTIONS TO A STANDING ARMY (PART II)
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From the tenth letter of "BRUTUS" appearing in The New-York Journal, January 24, 1788.
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The liberties of a people are in danger from a large standing army, not only because the rulers may employ
them for the purposes of supporting themselves in any usurpations of power, which they may see proper to
exercise; but there is great hazard, that an army will subvert the forms of the government, under whose
authority they are raised, and establish one [rule] according to the pleasure of their leaders.
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We are informed, in the faithful pages of history, of such events frequently happening. Two instances have
been mentioned in a former paper. They are so remarkable, that they are worthy of the most careful
attention of every lover of freedom. They are taken from the history of the two most powerful nations that
have ever existed in the world; and who are the most renowned, for the freedom they enjoyed, and the
excellency of their constitutions-I mean Rome and Britain.
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In the first, the liberties of the commonwealth were destroyed, and the constitution over-turned, by an
army, led by Julius Caesar, who was appointed to the command by the constitutional authority of that
commonwealth. He changed it from a free republic, whose fame ... is still celebrated by all the world, into
that of the most absolute despotism. A standing army effected this change, and a standing army supported
it through a succession of ages, which are marked in the annals of history with the most horrid cruelties,
bloodshed, and carnage-the most devilish, beastly, and unnatural vices, that ever punished or disgraced
human nature.
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The same army, that in Britain, vindicated the liberties of that people from the encroachments and
despotism of a tyrant king, assisted Cromwell, their General, in wresting from the people that liberty they
had so dearly earned.
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You may be told, these instances will not apply to our case. But those who would persuade you to believe
this, either mean to deceive you, or have not themselves considered the subject.
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I firmly believe, no country in the world had ever a more patriotic army, than the one which so ably served
this country in the late war. But had the General who commanded them been possessed of the spirit of a
Julius Caesar or a Cromwell, the liberties of this country . - . [might have] in all probability terminated with
the war. Or bad they been maintained, [they] might have cost more blood and treasure than was expended
in the conflict with Great Britain. When an anonymous writer addressed the officers of the army at the
close of the war, advising them not to part with their arms, until justice was done them-the effect it had is
well known. It affected them like an electric shock. He wrote like Caesar; and had the commander in chief,
and a few more officers of rank, countenanced the measure, the desperate resolution. . . [might have] been
taken, to refuse to disband. What the consequences of such a determination would have been, heaven only
knows. The army were in the full vigor of health and spirits, in the habit of discipline, and possessed of all
our military stores and apparatus. They would have acquired great accessions of strength from the country.
Those who were disgusted at our republican forms of government (for such there then were, of high rank
among us) would have lent them all their aid. We should in all probability have seen a constitution and laws
dictated to us, at the head of an army, and at the point of a bayonet, and the liberties for which we had so
severely struggled, snatched from us in a moment. It remains a secret, yet to be revealed, whether this
measure was not suggested, or at least countenanced, by some, who have bad great influence in producing
the present system. Fortunately indeed for this country, it had at the head of the army, a patriot as well as a
general; and many of our principal officers had not abandoned the characters of citizens, by assuming that
of soldiers; and therefore, the scheme proved abortive. But are we to expect, that this will always be the
case? Are we so much better than the people of other ages and of other countries, that the same
allurements of power and greatness, which led them aside from their duty, will have no influence upon men
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in our country? Such an idea is wild and extravagant. Had we indulged such a delusion, enough has
appeared in a little time past, to convince the most credulous, that the passion for pomp, power, and
greatness, works as powerfully in the hearts of many of our better sort, as it ever did in any country under
heaven. Were the same opportunity again to offer, we should very probably be grossly disappointed, if we
made dependence, that all who then rejected the overture, would do it again.
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From these remarks, it appears, that the evils to be feared from a large standing army in time of peace, do
not arise solely from the apprehension, that the rulers may employ them for the purpose of promoting their
own ambitious views; but that equal, and perhaps greater danger, is to be apprehended from their
overturning the constitutional powers of the government, and assuming the power to dictate any form they
please.
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The advocates for power, in support of this right in the proposed government, urge that a restraint upon
the discretion of the legislatures, in respect to military establishments in time of peace, would be improper
to be imposed, because they say, it will be necessary to maintain small garrisons on the frontiers, to guard
against the depredations of the Indians, and to be prepared to repel any encroachments or invasions that
may be made by Spain or Britain.
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The amount of this argument stripped of the abundant verbiages with which the author has dressed it, is
this:
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It will probably be necessary to keep up a small body of troops to garrison a few posts, which it will be
necessary to maintain, in order to guard against the sudden encroachments of the Indians, or of the
Spaniards and British; and therefore, the general government ought to be invested with power to raise and
keep up a standing army in time of peace, without restraint, at their discretion.
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I confess, I cannot perceive that the conclusion follows from the premises. Logicians say, it is not good
reasoning to infer a general conclusion from particular premises. Though I am not much of a logician, it
seems to me, this argument is very like that species of reasoning.
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When the patriots in the parliament in Great Britain, contended with such force of argument, and all the
powers of eloquence, against keeping up standing armies in time of peace, it is obvious they never
entertained an idea, that small garrisons on their frontiers, or in the neighborhood of powers from whom
they were in danger of encroachments, or guards to take care of public arsenals, would thereby be
prohibited.
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The advocates for this power further urge that it is necessary, because it may, and probably will happen,
that circumstances will render it requisite to raise an army to be prepared to repel attacks of an enemy,
before a formal declaration of war, which in modern times has fallen into disuse. If the constitution
prohibited the raising an army, until a war actually commenced, it would deprive the government of the
power of providing for the defense of the country, until the enemy were within our territory. If the
restriction is not to extend to the raising armies in cases of emergency, but only to the keeping them up,
this would leave the matter to the discretion of the legislature, and they might, under the pretence that
there was danger of an invasion, keep up the army as long as they judged proper-and hence it is inferred,
that the legislature should have authority to raise and keep up an army without any restriction. But from
these premises nothing more will follow than this: that the legislature should not be so restrained, as to put
it out of their power to raise an army, when such exigencies as are instanced shall arise. But it does not
thence follow, that the government should be empowered to raise and maintain standing armies at their
discretion as well in peace as in war. If indeed, it is impossible to vest the general government with the
power of raising troops to garrison the frontier posts, to guard arsenals, or to be prepared to repel an
attack, when we saw a power preparing to make one, without giving them a general and indefinite
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authority to raise and keep up armies, without any restriction or qualification, then this reasoning might
have weight; but this has not been proved nor can it be.
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It is admitted that to prohibit the general government from keeping up standing armies, while yet they
were authorised to raise them in case of exigency, would be an insufficient guard against the danger. A
discretion of such latitude would give room to elude the force of the provision.
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It is also admitted that an absolute prohibition against raising troops, except in cases of actual war, would
be improper; because it will be requisite to raise and support a small number of troops to garrison the
important frontier posts, and to guard arsenals; and it may happen, that the danger of an attack from a
foreign power may be so imminent, as to render it highly proper we should raise an army, in order to be
prepared to resist them. But to raise and keep up forces for such purposes and on such occasions, is not
included in the idea of keeping up standing armies in times of peace.
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It is a thing very practicable to give the government sufficient authority to provide for these cases, and at
the same time to provide a reasonable and competent security against the evil of a standing army-a clause
to the following purpose would answer the end:
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As standing armies in time of peace arc dangerous to liberty, and have often been the means of overturning
the best constitutions of government, no standing army, or troops of any description whatsoever, shall be
raised or kept up by the legislature, except so many as shall be necessary for guards to the arsenals of the
United States, or for garrisons to such posts on the frontiers, as it shall be deemed absolutely necessary to
hold, to secure the inhabitants, and facilitate the trade with the Indians: unless when the United States are
threatened with an attack or invasion from some foreign power, in which case the legislature shall be
authorised to raise an army to be prepared to repel the attack; provided that no troops whatsoever shall be
raised in time of peace, without the assent of two thirds of the members, composing both houses of the
legislature.
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A clause similar to this would afford sufficient latitude to the legislature to raise troops in all cases that
were really necessary, and at the same time competent security against the establishment of that
dangerous engine of despotism, a standing army.
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The same writer who advances the arguments I have noticed, makes a number of other observations with a
view to prove that the power to raise and keep up armies ought to be discretionary in the general
legislature. Some of them are curious. He instances the raising of troops in Massachusetts and
Pennsylvania, to show the necessity of keeping a standing army in time of peace; the least reflection must
convince every candid mind that both these cases are totally foreign to his purpose. Massachusetts raised a
body of troops for six months, at the expiration of which they were to disband ... ; this looks very little like a
standing army. But beside, was that commonwealth in a state of peace at that time? So far from it, that
they were in the most violent commotions and contests, and their legislature had formally declared that an
unnatural rebellion existed within the state. The situation of Pennsylvania was similar; a number of armed
men had levied war against the authority of the state and openly avowed their intention of withdrawing
their allegiance from it. To what purpose examples are brought, of states raising troops for short periods in
times of war or insurrections, on a question concerning the propriety of keeping up standing armies in
times of peace, the public must judge.
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It is further said, that no danger can arise from this power being lodged in the hands of the general
government, because the legislatures will be a check upon them, to prevent their abusing it.
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This is offered, as what force there is in it will hereafter receive a more particular examination. At present, I
shall only remark, that it is difficult to conceive how the state legislatures can, in any case, hold a check over
the general legislature, in a constitutional way. The latter has, in every instance to which their powers
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extend, complete control over the former. The state legislatures can, in no case-by law, resolution, or
otherwise of right, prevent or impede the general government, from enacting any law, or executing it,
which this constitution authorizes them to enact or execute. If then the state legislatures check the general
legislature, it must be by exciting the people to resist constitutional laws. In this way every individual, or
every body of men, may check any government, in proportion to the influence they may have over the body
of the people. But such kinds of checks as these, though they sometimes correct the abuses of government,
[more) often destroy all government.
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It is further said, that no danger is to be apprehended from the exercise of this power, because it is lodged
in the hands of representatives of the people. If they abuse it, it is in the power of the people to remove
them, and choose others who will pursue their interests.... That it is unwise in any people, to authorize their
rulers to do, what, if done, would prove injurious-I have, in some former numbers, shown. . . . The
representation in the proposed government will be a mere shadow without the substance. I am so
confident that I am well founded in this opinion, that I am persuaded if it was to be adopted or rejected,
upon a fair discussion of its merits without taking into contemplation circumstances extraneous to it, as
reasons for its adoption, nineteen-twentieths of the sensible men in the union would reject it on this
account alone; unless its powers were confined to much fewer objects than it embraces.
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BRUTUS
Page 171
AFED26: THE USE OF COERCION BY THE NEW GOVERNMENT (PART I)
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"A FARMER AND PLANTER" had his work printed in The Maryland Journal, and Baltimore Advertiser, April 1,
1788.
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The time is nearly at hand, when you are called upon to render up that glorious liberty you obtained, by
resisting the tyranny and oppression of George the Third, King of England, and his ministers. The first
Monday in April is the day appointed by our assembly, for you to meet and choose delegates in each
county, to take into consideration the new Federal Government, and either adopt or refuse it. Let me
entreat you, my fellows, to consider well what you are about. Read the said constitution, and consider it
well before you act. I have done so, and can find that we are to receive but little good, and a great deal of
evil. Aristocracy, or government in the hands of a very few nobles, or RICH MEN, is therein concealed in the
most artful wrote plan that ever was formed to entrap a free people. The contrivers of it have so
completely entrapped you, and laid their plans so sure and secretly, that they have only left you to do one
of two things-that is either to receive or refuse it. And in order to bring you into their snare, you may daily
read new pieces published in the newspapers, in favor of this new government; and should a writer dare to
publish any piece against it, he is immediately abused and vilified.
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Look round you and observe well the RICH MEN, who are to be your only rulers, lords and masters in
future! Are they not all for it? Yes! Ought not this to put you on your guard? Does not riches beget power,
and power, oppression and tyranny?
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I am told that four of the richest men in Ann-Arundel County [Maryland], have offered themselves
candidates to serve in the convention, who are all in favor of the new Federal Government. Let me beg of
you to reflect a moment on the danger you run. If you choose these men, or others like them, they certainly
will do everything in their power to adopt the new government. Should they succeed, your liberty is gone
forever; and you will then be nothing better than a strong ass crouching down between two burdens. The
new form of government gives Congress liberty at any time, by their laws, to alter the state laws, and the
time, places and manner of holding elections for representatives. By this clause they may command, by
their laws, the people of Maryland to go to Georgia, and the people of Georgia to go to Boston, to choose
their representatives. Congress, or our future lords and masters, are to have power to lay and collect taxes,
duties, imposts, and excises. Excise is a new thing in America, and few country farmers and planters know
the meaning of it. But it is not so in Old England, where I have seen the effects of it, and felt the smart. It is
there a duty, or tax, laid upon almost every necessary of life and convenience, and a great number of other
articles. The excise on salt in the year 1762, to the best of my recollection, in England, was 4s. sterling per
bushel, for all that was made use of in families; and the price of salt per bushel about 6s. sterling, and the
excise 4s.6d. on every gallon of rum made use of. If a private family make their own soap, candles, beer,
cider, etc., they pay an excise duty on them. And if they neglect calling in an excise officer at the time of
making these things, they are liable to grievous fines and forfeitures, besides a long train of evils and
inconveniences attending this detestable excise-to enumerate particularly would fill a volume. The excise
officers have power to enter your houses at all times, by night or day, and if you refuse them entrance, they
can, under pretense of searching for exciseable goods, that the duty has not been paid on, break open your
doors, chests, trunks, desks, boxes, and rummage your houses from bottom to top. Nay, they often search
the clothes, petticoats and pockets of ladies or gentlemen (particularly when they are coming from on
board an East-India ship), and if they find any the least article that you cannot prove the duty to be paid on,
seize it and carry it away with them; who are the very scum and refuse of mankind, who value not their
oaths, and will break them for a shilling. This is their true character in England, and I speak from experience,
for I have had the opportunity of putting their virtue to the test, and saw two of them break their oath for
one guinea, and a third for one shilling's worth of punch. What do you think of a law to let loose such a set
of vile officers among you! Do you expect the Congress excise-officers will be any better-if God, in his anger,
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should think it proper to punish us for our ignorance, and sins of ingratitude to him, after carrying us
through the late war, and giving us liberty, and now so tamely to give it up by adopting this aristocratical
government?
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Representatives and direct taxes shall be apportioned among the several states which may be included
within this union according to their respective numbers. This seems to imply, that we shall be taxed by the
poll again, which is contrary to our Bill of Rights. But it is possible that the rich men, who are the great land
holders, will tax us in this manner, which will exempt them from paying assessments on their great bodies
of land in the old and new parts of the United States; many of them having but few taxable by the poll. Our
great Lords and Masters are to lay taxes, raise and support armies, provide a navy, and may appropriate
money for two years, call forth the militia to execute their laws, suppress insurrections, and the President is
to have the command of the militia. Now, my countrymen, I would ask you, why are all these things
directed and put into their power? Why, I conceive, they are to keep you in a good humor; and if you
should, at any time, think you are imposed upon by Congress and your great Lords and Masters, and refuse
or delay to pay your taxes, or do anything that they shall think proper to order you to do, they can, and I
have not a doubt but they will, send the militia of Pennsylvania, Boston, or any other state or place, to cut
your throats, ravage and destroy your plantations, drive away your cattle and horses, abuse your wives, kill
your infants, and ravish your daughters, and live in free quarters, until you get into a good humor, and pay
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all that they may think proper to ask of you, and you become good and faithful servants and slaves. Such
things have been done, and I have no doubt will be done again, if you consent to the adoption of this new
Federal Government. You labored under many hardships while the British tyrannized over you! You fought,
conquered and gained your liberty-then keep it, I pray you, as a precious jewel. Trust it not out of your own
hands; be assured, if you do, you will never more regain it. The train is laid, the match is on fire, and they
only wait for yourselves to put it to the train, to blow up all your liberty and commonwealth governments,
and introduce aristocracy and monarchy, and despotism will follow of course in a few years. Four-years
President will be in time a King for life; and after him, his son, or he that has the greatest power among
them, will be King also. View your danger, and find out good men to represent you in convention-men of
your own profession and station in life; men who will not adopt this destructive and diabolical form of a
federal government. There are many among you that will not be led by the nose by rich men, and would
scorn a bribe. Rich men can live easy under any government, be it ever so tyrannical. They come in for a
great share of the tyranny, because they are the ministers of tyrants, and always engross the places of
honor and profit, while the greater part of the common people are led by the nose, and played about by
these very men, for the destruction of themselves and their class. Be wise, be virtuous, and catch the
precious moment as it passes, to refuse this newfangled federal government, and extricate yourselves and
posterity from tyranny, oppression, aristocratical or monarchical government. . . .
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A FARMER AND PLANTER
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See the history of the confederate Grecian states-also the history of England, for the massacre of the
people in the valley of Glenco, in the time of William the Third. [Note by "A Farmer and Planter".]
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AFED36: REPRESENTATION AND INTERNAL TAXATION
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Richard Henry Lee was arguably the best known Antifederalist writer. His pamphlets were widely
distributed and reprinted in newspapers. Antifederalist Papers # 36/37 are excerpts from his first pamphlet.
Antifederalist Nos. 41, 42, 43, 55, 56, 57, 58, 61, 63, 69, 76-77 are taken from his second pamphlet. Taken
from Letter III October 10, 1787
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A power to lay and collect taxes at discretion, is, in itself, of very great importance. By means of taxes, the
government may command the whole or any part of the subject's property. Taxes may be of various kinds;
but there is a strong distinction between external and internal taxes. External taxes are import duties,
which are laid on imported goods; they may usually be collected in a few seaport towns, and of a few
individuals, though ultimately paid by the consumer; a few officers can collect them, and they can be
carried no higher than trade will bear, or smuggling permit-that in the very nature of commerce, bounds are
set to them. But internal taxes, as poll and land taxes, excises, duties on all written instruments, etc., may
fix themselves on every person and species of property in the community; they may be carried to any
lengths, and in proportion as they are extended, numerous officers must be employed to assess them, and
to enforce the collection of them. In the United Netherlands the general government has complete powers,
as to external taxation; but as to internal taxes, it makes requisitions on the provinces. Internal taxation in
this country is more important, as the country is so very extensive As many assessors and collectors of
federal taxes will be above three hundred miles from the seat of the federal government, as will be less.
Besides, to lay and collect taxes, in this extensive country, must require a great number of congressional
ordinances, immediately operating upon the body of the people; these must continually interfere with the
state laws, and thereby produce disorder and general dissatisfaction, till the one system of laws or the
other, operating on the same subjects, shall be abolished. These ordinances alone, to say nothing of those
respecting the militia, coin, commerce, federal judiciary, etc., will probably soon defeat the operations of
the state laws and governments.
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Should the general government think it politic, as some administration (if not all) probably will, to look for a
support in a system of influence, the government will take every occasion to multiply laws, and officers to
execute them, considering these as so many necessary props for its own support. Should this system of
policy be adopted, taxes more productive than the impost duties will, probably, be wanted to support the
government, and to discharge foreign demands, without leaving anything for the domestic creditors. The
internal sources of taxation then must be called into operation, and internal tax laws and federal assessors
and collectors spread over this immense country. All these circumstances considered, is it wise, prudent, or
safe, to vest the powers of laying and collecting internal taxes in the general government, while imperfectly
organized and inadequate? And to trust to amending it hereafter, and making it adequate to this purpose?
It is not only unsafe but absurd to lodge power in a government before it is fitted to receive it. It is
confessed that this power and representation ought to go together. Why give the power first? Why give the
power to the few, who, when possessed of it, may have address enough to prevent the increase of
representation? Why not keep the power, and, when necessary, amend the constitution, and add to its
other parts this power, and a proper increase of representation at the same time? Then men who may want
the power will be under strong inducements to let in the people, by their representatives, into the
government, to hold their due proportion of this power. If a proper representation be impracticable, then
we shall see this power resting in the states, where it at present ought to be, and not inconsiderately given
up.
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When I recollect how lately congress, conventions, legislatures, and people contended in the cause of
liberty, and carefully weighed the importance of taxation, I can scarcely believe we are serious in proposing
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to vest the powers of laying and collecting internal taxes in a government so imperfectly organized for such
purposes. Should the United States be taxed by a house of representatives of two hundred members, which
would be about fifteen members for Connecticut, twenty-five for Massachusetts, etc., still the middle and
lower classes of people could have no great share, in fact, in taxation. I am aware it is said, that the
representation proposed by the new constitution is sufficiently numerous; it may be for many purposes;
but to suppose that this branch is sufficiently numerous to guard the rights of the people in the
administration of the government, in which the purse and sword is placed, seems to argue that we have
forgot what the true meaning of representation is. . . .
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In considering the practicability of having a full and equal representation of the people from all parts of the
union, not only distances and different opinions, customs and views, common in extensive tracts of
country, are to be taken into view, but many differences peculiar to Eastern, Middle, and Southern States.
These differences are not so perceivable among the members of congress, and men of general information
in the states, as among the men who would properly form the democratic branch. The Eastern states are
very democratic, and composed chiefly of moderate freeholders; they have but few rich men and no slaves;
the Southern states are composed chiefly of rich planters and slaves; they have but few moderate
freeholders, and the prevailing influence in them is generally a dissipated aristocracy. The Middle states
partake partly of the Eastern and partly of the Southern character. . . . I have no idea that the interests,
feelings, and opinions of three or four millions of people, especially touching internal taxation, can be
collected in such a house. In the nature of things, nine times in ten, men of the elevated classes in the
community only can be chosen....
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I am sensible also, that it is said that congress will not attempt to lay and collect internal taxes; that it is
necessary for them to have the power, though it cannot probably be exercised. I admit that it is not
probable that any prudent congress will attempt to lay and collect internal taxes, especially direct taxes: but
this only proves, that the power would be improperly lodged in congress, and that it might be abused by
imprudent and designing men.
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I have heard several gentlemen, to get rid of objections to this part of the constitution, attempt to construe
the powers relative to direct taxes, as those who object to it would have them; as to these, it is said, that
congress will only have power to make requisitions, leaving it to the states to lay and collect them. I see but
very little color for this construction, and the attempt only proves that this part of the plan cannot be
defended. By this plan there can be no doubt, but that the powers of congress will be complete as to all
kinds of taxes whatever. Further, as to internal taxes, the state governments will have concurrent powers
with the general government, and both may tax the same objects in the same year; and the objection that
the general government may suspend a state tax, as a necessary measure for the promoting the collection
of a federal tax, is not without foundation.
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THE FEDERAL FARMER
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AFED30-31: A VIRGINIA ANTIFEDERALIST ON THE ISSUE OF TAXATION
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From The Freeman's Journal; or, The North-American Intelligencer, October 31, 1787.
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. . . . It has been the language, since the peace, of the most virtuous and discerning men in America, that the
powers vested in Congress were inadequate to the procuring of the benefits that should result from the
union. It was found that our national character was sinking in the opinion of foreign nations, and that the
selfish views of some of the states were likely to become the source of dangerous jealousy. The requisitions
of Congress were set at naught; the government, that represented the union, had not a shilling in its
treasury to enable it to pay off the federal debts, nor had it any method within its power to alter its
situation. It could make treaties of commerce, but could not enforce the observance of them; and it was felt
that we were suffering from the restrictions of foreign nations, who seeing the want of energy in our
federal constitution, and the unlikelihood of cooperation in thirteen separate legislatures, had shackled our
commerce, without any dread of recrimination on our part. To obviate these grievances, it was I believe the
general opinion, that new powers should be vested in Congress to enable it, in the amplest manner, to
regulate the commerce, to lay and collect duties on the imports of the United States. Delegates were
appointed by most of them, for those purposes, to a convention to be held at Annapolis in the September
before last. A few of them met, and without waiting for the others, who were coming on, they dissolved the
convention-after resolving among themselves, that the powers vested in them were not sufficiently
extensive; and that they would apply to the legislatures of the several states, which they represented, to
appoint members to another convention, with powers to new model the federal constitution. This, indeed,
it has now done in the most unequivocal manner; nor has it stopped here, for it has fairly annihilated the
constitution of each individual state. It has proposed to you a high prerogative government, which, like
Aaron's serpent, is to swallow up the rest. This is what the thinking people in America were apprehensive
of. They knew how difficult it is to hit the golden mean, how natural the transition is from one extreme to
another-from anarchy to tyranny, from the inconvenient laxity of thirteen separate governments to the too
sharp and grinding one, before which our sovereignty, as a state, was to vanish.
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In Art. I, Sect. 8, of the proposed constitution, it is said, "Congress shall have power to lay and collect taxes,
duties, imposts, and excises." Are you then, Virginians, about to abandon your country to the depredations
of excisemen, and the pressure of excise laws? Did it ever enter the mind of any one of you, that you could
live to see the day, that any other government but the General Assembly of Virginia should have power of
direct taxation in this state? How few of you ever expected to see excise laws, those instruments of
tyranny, in force in your country? But who could imagine, that any man but a Virginian, were they found to
be necessary, would ever have a voice towards enacting them? That any tribunal, but the courts of Virginia,
would be allowed to take cognizance of disputes between her citizens and their tax gatherers and
excisemen? And that, if ever it should be found necessary to curse this land with these hateful excisemen,
any one, but a fellow citizen, should be entrusted with that office?
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For my part, I cannot discover the necessity there was of allowing Congress to subject us to excise laws,
unless-that considering the extensiveness of the single republic into which this constitution would collect all
the others, and the well known difficulty of governing large republics with harmony and ease-it was thought
expedient to bit our mouths with massive curbs, to break us, bridled with excise laws and managed by
excisemen, into an uniform, sober pace, and thus, gradually, tame the troublesome mettle of freemen. This
necessity could not, surely, arise from the desire of furnishing Congress with a sufficient revenue to enable
it to exercise the prerogatives which every friend to America would wish to see vested in it. As it would, by
unanimous consent, have the management of the impost, it could increase it to any amount, and this would
fall sufficiently uniform on every one, according to his ability. Or, were this not found sufficient, could not
the deficiency be made up by requisitions to the states? Could it not have been made an article of the
federal constitution, that, if any of them refused their quota, Congress may be allowed to make it up by an
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increase of the impost on that particular state so refusing? This would, surely, be a sufficient security to
Congress, that their requisitions would be punctually complied with.
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In any dispute between you and the revenue officers and excisemen of Congress, it is true that it is provided
the trial shall be in the first instance within the state, though before a federal tribunal. It is said in par. 3,
sect. 2, art. 3, "The trial of all crimes except in cases of impeachments shall be by jury; and such trial shall be
held in the state where the crime shall be committed." But what does this avail, when an appeal will lie
against you to the supreme federal court. In the paragraph preceding the one just now quoted, it is said, "In
all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a
party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the
Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under
such regulations as the Congress shall make." But where is this Supreme Court to sit? Will it not be where
Congress shall fix its residence? Thither then you will be carried for trial. Who are to be your jury? Is there
any provision made that you shall have a Venire from your county, or even from your state, as they please
to call it? Not You are to be tried within the territory of Congress, and Congress itself is to be a party. You
are to be deprived of the benefit of a jury from your vicinage, that boast and birthright of a freeman.
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Should it not at least have been provided, that those revenue officers and excisemen-against whom free
governments have always justly entertained a jealousy-should be citizens of the state? Was it inadmissible
that they should be endued with the bowels of fellow citizens? Are we not to expect that New England will
now send us revenue officers instead of onions and apples? When you observe that the few places already
under Congress in this state are in the hands of strangers, you will own that my suspicion is not without
some foundation. And if the first cause of it be required, those who have served in Congress can tell you
that the New England delegates to that assembly have always stood by each other, and have formed a firm
phalanx, which the southern delegates have not; that, on the contrary, the maneuvers of the former have
been commonly engaged, with success, in dividing the latter against each other.
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CATO UTICENSIS
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AFED32: FEDERAL TAXATION AND THE DOCTRINE OF IMPLIED POWERS (PART I)
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A powerful rebuttal of Hamilton, the logic of Brutus can be found in a supreme Court decision of 1819,
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This constitution considers the people of the several states as one body corporate, and is intended as an
original compact; it will therefore dissolve all contracts which may be inconsistent with it. This not only
results from its nature, but is expressly declared in the 6th article of it. The design of the constitution is
expressed in the preamble, to be, "in order to form a more perfect union, to establish justice, insure
domestic tranquility, provide for the common defense, promote the general welfare, and secure the
blessings of liberty to ourselves and posterity." These are the ends this government is to accomplish, and
for which it is invested with certain powers; among these is the power "to make all laws which are
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." It is a rule in
construing a law to consider the objects the legislature had in view in passing it, and to give it such an
explanation as to promote their intention. The same rule will apply in explaining a constitution. The great
objects then are declared in this preamble in general and indefinite terms to be to provide for the common
welfare, and an express power being vested in the legislature to make all laws which shall be necessary and
proper for carrying into execution all the powers vested in the general government. The inference is natural
that the legislature will have an authority to make all laws which they shall judge necessary for the common
safety, and to promote the general welfare. This amounts to a power to make laws at discretion. No terms
can be found more indefinite than these, and it is obvious, that the legislature alone must judge what laws
are proper and necessary for the purpose. It may be said, that this way of explaining the constitution, is
torturing and making it speak what it never intended. This is far from my intention, and I shall not even
insist upon this implied power, but join issue with those who say we are to collect the idea of the powers
given from the express words of the clauses granting them; and it will not be difficult to show that the same
authority is expressly given which is supposed to be implied in the foregoing paragraphs.
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In the 1st article, 8th section, it is declared, "that Congress shall have power to lay and collect taxes, duties,
imposts, and excises, to pay the debts, and provide for the common defense, and general welfare of the
United States." In the preamble, the intent of the constitution, among other things, is declared to be to
provide for the common defense, and promote the general welfare, and in this clause the power is in
express words given to Congress "to provide for the common defense, and general welfare." And in the last
paragraph of the same section there is an express authority to make all laws which shall be necessary and
proper for carrying into execution this power. It is therefore evident, that the legislature under this
constitution may pass any law which they may think proper. It is true the 9th section restrains their power
with respect to certain subjects. But these restrictions are very limited, some of them improper, some
unimportant, and others not easily understood, as I shall hereafter show. It has been urged that the
meaning I give to this part of the constitution is not the true one, that the intent of it is to confer on the
legislature the power to lay and collect taxes, etc., in order to provide for the common defense and general
welfare. To this I would reply, that the meaning and intent of the constitution is to be collected from the
words of it, and I submit to the public, whether the construction I have given it is not the most natural and
easy. But admitting the contrary opinion to prevail, I shall nevertheless, be able to show, that the same
powers are substantially vested in the general government, by several other articles in the constitution. It
invests the legislature with authority to lay and collect taxes, duties, imposts and excises, in order to
provide for the common defense, and promote the general welfare, and to pass all laws which may be
necessary and proper for carrying this power into effect. To comprehend the extent of this authority, it will
be requisite to examine
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1st. What is included in this power to lay and collect taxes, duties, imposts and excises.
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2nd. What is implied in the authority, to pass all laws which shall be necessary and proper for carrying this
power into execution.
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3rd. What limitation, if any, is set to the exercise of this power by the constitution.
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First. To detail the particulars comprehended in the general terms, taxes, duties, imposts and excises, would
require a volume, instead of a single piece in a newspaper. Indeed it would be a task far beyond my ability,
and to which no one can be competent, unless possessed of a mind capable of comprehending every
possible source of revenue; for they extend to every possible way of raising money, whether by direct or
indirect taxation. Under this clause may be imposed a poll tax, a land tax, a tax on houses and buildings, on
windows and fireplaces, on cattle and on all kinds of personal property. It extends to duties on all kinds of
goods to any amount, to tonnage and poundage on vessels, to duties on written instruments, newspapers,
almanacks, and books. It comprehends an excise on all kinds of liquors, spirits, wines, cider, beer, etc., and
indeed takes in duty or excise on every necessary or conveniency of life, whether of foreign or home growth
or manufactory. In short, we can have no conception of any way in which a government can raise money
from the people, but what is included in one or other of these general terms. We may say then that this
clause commits to the hands of the general legislature every conceivable source of revenue within the
United States, Not only are these terms very comprehensive, and extend to a vast number of objects, but
the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may
affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and
put their lives in jeopardy. It opens a door to the appointment of a swarm of revenue and excise collectors
to prey upon the honest and industrious part of the community, [and] eat up their substance. . . .
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Second. We will next inquire into what is implied in the authority to pass all laws which shall be necessary
and proper to carry this power into execution.
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It is, perhaps, utterly impossible fully to define this power. The authority granted in the first clause can only
be understood in its full extent, by descending to all the particular cases in which a revenue can be raised;
the number and variety of these cases are so endless, and as it were infinite, that no man living has, as yet,
been able to reckon them up. The greatest geniuses in the world have been for ages employed in the
research, and when mankind had supposed that the subject was exhausted they have been astonished with
the refined improvements that have been made in modern times ' and especially in the English nation on
the subject. If then the objects of this power cannot be comprehended, how is it possible to understand the
extent of that power which can pass all laws which shall be necessary and proper for carrying it into
executions It is truly incomprehensible. A case cannot be conceived of, which is not included in this power.
It is well known that the subject of revenue is the most difficult and extensive in the science of government.
It requires the greatest talents of a statesman, and the most numerous and exact provisions of the
legislature. The command of the revenues 'Of a state gives the command of every thing in it. He that has
the purse will have the sword, and they that have both, have everything; so that the legislature having
every source from which money can be drawn under their direction, with a right to make all laws necessary
and proper for drawing forth all the resource of the country, would have, in fact, all power.
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Were I to enter into the detail, it would be easy to show how this power in its operation, would totally
destroy all the powers of the individual states. But this is not necessary for those who will think for
themselves, and it will be useless to such as take things upon trust; nothing will awaken them to reflection,
until the iron hand of oppression compel them to it.
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I shall only remark, that this power, given to the federal legislature, directly annihilates all the powers of the
state legislatures. There cannot be a greater solecism in politics than to talk of power in a government,
without the command of any revenue. It is as absurd as to talk of an animal without blood, or the
subsistence of one without food. Now the general government having in their control every possible source
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of revenue, and authority to pass any law they may deem necessary to draw them forth, or to facilitate
their collection, no source of revenue is therefore left in the hands 'Of any state. Should any state attempt
to raise money by law, the general government may repeal or arrest it in the execution, for all their laws
will be the supreme law of the land. If then any one can be weak enough to believe that a government can
exist without having the authority to raise money to pay a door-keeper to their assembly, he may believe
that the state government can exist, should this new constitution take place.
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It is agreed by most of the advocates of this new system, that the government which is proper for the
United States should be a confederated one; that the respective states ought to retain a portion of their
sovereignty, and that they should preserve not only the forms of their legislatures, but also the power to
conduct certain internal concerns. How far the powers to be retained by the states are to extend, is the
question; we need not spend much time on this subject, as it respects this constitution, for a government
without power to raise money is one only in name. It is clear that the legislatures of the respective states
must be altogether dependent on the will of the general legislature, for the means of supporting their
government. The legislature of the United States will have a right to exhaust every source of revenue in
every state, and to annul all laws of the states which may stand in the way of effecting it; unless therefore
we can suppose the state governments can exist without money to support the officers who execute them,
we must conclude they will exist no longer than the general legislatures choose they should. Indeed the
idea of any government existing, in any respect, as an independent one, without any means of support in
their own hands, is an absurdity. If therefore, this constitution has in view, what many of its framers and
advocates say it has, to secure and guarantee to the separate states the exercise of certain powers of
government, it certainly ought to have left in their hands some sources of revenue. It should have marked
the line in which the general government should have raised money, and set bounds over which they
should not pass, leaving to the separate states other means to raise supplies for the support of their
governments, and to discharge their respective debts. To this it is objected, that the general government
ought to have power competent to the purposes of the union; they are to provide for the common defense,
to pay the debts of the United States, support foreign ministers, and the civil establishment of the union,
and to do these they ought to have authority to raise money adequate to the purpose. On this I observe,
that the state governments have also contracted debts; they require money to support their civil officers; . .
. if they give to the general government a power to raise money in every way in which it can possibly be
raised, with . . . a control over the state legislatures as to prohibit them, whenever the general legislature
may think proper, from raising any money, (the states will fail). It is again objected that it is very difficult, if
not impossible, to draw the line of distinction between the powers of the general and state governments on
this subject. The first, it is said, must have the power to raise the money necessary for the purposes of the
union; if they are limited to certain objects the revenue may fall short of a sufficiency for the public
exigencies; they must therefore have discretionary power. The line may be easily and accurately drawn
between the powers of the two governments on this head. The distinction between external and internal
taxes, is not a novel one in this country. It is a plain one, and easily understood. The first includes impost
duties on all imported goods; this species of taxes it is proper should be laid by the general government;
many reasons might be urged to show that no danger is to be apprehended from their exercise of it. They
may be collected in few places, and from few hands with certainty and expedition. But few officers are
necessary to be employed in collecting them, and there is no danger of oppression in laying them, because
if they are laid higher than trade will bear, the merchants will cease importing, or smuggle their goods. We
have therefore sufficient security, arising from the nature of the thing, against burdensome, and intolerable
impositions from this kind of tax. The case is far otherwise with regard to direct taxes; these include poll
taxes, land taxes, excises, duties on written instruments, on everything we eat, drink, or wear; they take
hold of every species of property, and come home to every man's house and pocket. These are often so
oppressive, as to grind the face of the poor, and render the lives of the common people a burden to them.
The great and only security the people can have against oppression from this kind of taxes, must rest in
their representatives. If they are sufficiently numerous to be well informed of the circumstances, . . . and
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have a proper regard for the people, they will be secure. The general legislature, as I have shown in a
former paper, will not be thus qualified,' and therefore, on this account, ought not to exercise the power of
direct taxation. If the power of laying imposts will not be sufficient, some other specific mode of raising a
revenue should have been assigned the general government; many may be suggested in which their power
may be accurately defined and limited, and it would be much better to give them authority to lay and
collect a duty on exports, not to exceed a certain rate per cent, than to have surrendered every kind of
resource that the country has, to the complete abolition of the state governments, and which will introduce
such an infinite number of laws and ordinances, fines and penalties, courts, and judges, collectors, and
excisemen, that when a man can number them, he may enumerate the stars of Heaven.
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BRUTUS
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AFED33: FEDERAL TAXATION AND THE DOCTRINE OF IMPLIED POWERS (PART II)
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The Federalist writers apparently never responded to "BRUTUS." The following "Brutus" article was
extracted from his sixth essay, The New-York Journal of December 27, 1787.
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.... The general government is to be vested with authority to levy and 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 superadded 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.
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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.
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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.
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The general legislature will be empowered to lay any tax they choose, 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 any way 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, [and] 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 of 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.
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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 a 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, it leisure 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
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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 those, 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.
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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 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, if otherwise, a great number of officers must be employed, to take
account of the cider made, and to collect the duties on it.
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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 other wise 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 it occasioned.
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This power, exercised without limitation, will introduce itself into every corner of the city, and country-it
will wait upon the ladies at their toilet, and will not leave them in any of their domestic concerns; it will
accompany them to the ball, the play, and 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
parlor, preside over the table, and note down all he eats or drinks; it will attend him to his bedchamber, 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 labor, it will be with him in the house, and in the field, observe the toil of his hands, and 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 ... maxim, which saith, "no man can serve two masters," the 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
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powers were equal, the body would remain in a state of rest, or if the 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. The preamble to the constitution is declaratory of the purposes of the [our]
union, and the assumption of any power not necessary to establish justice, etc., provide for the common
defense, etc., will be unconstitutional.
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. . . 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 defense and
general welfare. I would ask those, who reason thus, to define what ideas are included under the terms, to
provide for the common defense 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 principle; 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.
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It is 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, etc. 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 defense 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.
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There are others of the favorers 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.
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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 define the extent and variety of
national exigencies, or the correspondent extent and variety of the means which may be necessary to
satisfy them."
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This, it is said, "is one of those truths which, to a correct and unprejudiced mind, 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 persons, from whose agency the attainment of any end is expected, ought to possess the
means by which it is to be attained."
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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
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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 inquire, 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 defense 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 a 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 so also; and it is as necessary that the state governments should possess the means to
attain the end 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
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.
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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 defense 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 control in general
concerns, and not regulate local and internal ones. . . 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 defense against foreign invaders, and
indeed more so.
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Upon the whole, I conceive, that there cannot be a clearer position than this, that the state governments
ought to have an uncontrollable power to raise a revenue, adequate to the exigencies of their
governments; and, I presume, no such power is left them by this constitution.
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IT HAS been already observed that the federal government ought to possess the power of providing for the
support of the national forces; in which proposition was intended to be included the expense of raising
troops, of building and equipping fleets, and all other expenses in any wise connected with military
arrangements and operations. But these are not the only objects to which the jurisdiction of the Union, in
respect to revenue, must necessarily be empowered to extend. It must embrace a provision for the support
of the national civil list; for the payment of the national debts contracted, or that may be contracted; and,
in general, for all those matters which will call for disbursements out of the national treasury. The
conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation,
in one shape or another.
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Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life
and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure
a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded
as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils
must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible
mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short
course of time, perish.
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In the Ottoman or Turkish empire, the sovereign, though in other respects absolute master of the lives and
fortunes of his subjects, has no right to impose a new tax. The consequence is that he permits the bashaws
or governors of provinces to pillage the people without mercy; and, in turn, squeezes out of them the sums
of which he stands in need, to satisfy his own exigencies and those of the state. In America, from a like
cause, the government of the Union has gradually dwindled into a state of decay, approaching nearly to
annihilation. Who can doubt, that the happiness of the people in both countries would be promoted by
competent authorities in the proper hands, to provide the revenues which the necessities of the public
might require?
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The present Confederation, feeble as it is intended to repose in the United States, an unlimited power of
providing for the pecuniary wants of the Union. But proceeding upon an erroneous principle, it has been
done in such a manner as entirely to have frustrated the intention. Congress, by the articles which compose
that compact (as has already been stated), are authorized to ascertain and call for any sums of money
necessary, in their judgment, to the service of the United States; and their requisitions, if conformable to
the rule of apportionment, are in every constitutional sense obligatory upon the States. These have no right
to question the propriety of the demand; no discretion beyond that of devising the ways and means of
furnishing the sums demanded. But though this be strictly and truly the case; though the assumption of
such a right would be an infringement of the articles of Union; though it may seldom or never have been
avowedly claimed, yet in practice it has been constantly exercised, and would continue to be so, as long as
the revenues of the Confederacy should remain dependent on the intermediate agency of its members.
What the consequences of this system have been, is within the knowledge of every man the least
conversant in our public affairs, and has been amply unfolded in different parts of these inquiries. It is this
which has chiefly contributed to reduce us to a situation, which affords ample cause both of mortification
to ourselves, and of triumph to our enemies.
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What remedy can there be for this situation, but in a change of the system which has produced it in a
change of the fallacious and delusive system of quotas and requisitions? What substitute can there be
imagined for this ignis fatuus in finance, but that of permitting the national government to raise its own
revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil
government? Ingenious men may declaim with plausibility on any subject; but no human ingenuity can
point out any other expedient to rescue us from the inconveniences and embarrassments naturally
resulting from defective supplies of the public treasury.
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The more intelligent adversaries of the new Constitution admit the force of this reasoning; but they qualify
their admission by a distinction between what they call INTERNAL and EXTERNAL taxation. The former they
would reserve to the State governments; the latter, which they explain into commercial imposts, or rather
duties on imported articles, they declare themselves willing to concede to the federal head. This distinction,
however, would violate the maxim of good sense and sound policy, which dictates that every POWER ought
to be in proportion to its OBJECT; and would still leave the general government in a kind of tutelage to the
State governments, inconsistent with every idea of vigor or efficiency. Who can pretend that commercial
imposts are, or would be, alone equal to the present and future exigencies of the Union? Taking into the
account the existing debt, foreign and domestic, upon any plan of extinguishment which a man moderately
impressed with the importance of public justice and public credit could approve, in addition to the
establishments which all parties will acknowledge to be necessary, we could not reasonably flatter
ourselves, that this resource alone, upon the most improved scale, would even suffice for its present
necessities. Its future necessities admit not of calculation or limitation; and upon the principle, more than
once adverted to, the power of making provision for them as they arise ought to be equally unconfined. I
believe it may be regarded as a position warranted by the history of mankind, that, IN THE USUAL
PROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF ITS EXISTENCE, WILL BE FOUND
AT LEAST EQUAL TO ITS RESOURCES.
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To say that deficiencies may be provided for by requisitions upon the States, is on the one hand to
acknowledge that this system cannot be depended upon, and on the other hand to depend upon it for
every thing beyond a certain limit. Those who have carefully attended to its vices and deformities as they
have been exhibited by experience or delineated in the course of these papers, must feel invincible
repugnancy to trusting the national interests in any degree to its operation. Its inevitable tendency,
whenever it is brought into activity, must be to enfeeble the Union, and sow the seeds of discord and
contention between the federal head and its members, and between the members themselves. Can it be
expected that the deficiencies would be better supplied in this mode than the total wants of the Union have
heretofore been supplied in the same mode? It ought to be recollected that if less will be required from the
States, they will have proportionably less means to answer the demand. If the opinions of those who
contend for the distinction which has been mentioned were to be received as evidence of truth, one would
be led to conclude that there was some known point in the economy of national affairs at which it would be
safe to stop and to say: Thus far the ends of public happiness will be promoted by supplying the wants of
government, and all beyond this is unworthy of our care or anxiety. How is it possible that a government
half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security,
advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either
energy or stability, dignity or credit, confidence at home or respectability abroad? How can its
administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? How
will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it
undertake or execute any liberal or enlarged plans of public good?
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Let us attend to what would be the effects of this situation in the very first war in which we should happen
to be engaged. We will presume, for argument's sake, that the revenue arising from the impost duties
answers the purposes of a provision for the public debt and of a peace establishment for the Union. Thus
circumstanced, a war breaks out. What would be the probable conduct of the government in such an
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emergency? Taught by experience that proper dependence could not be placed on the success of
requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of
national danger, would it not be driven to the expedient of diverting the funds already appropriated from
their proper objects to the defense of the State? It is not easy to see how a step of this kind could be
avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the
very moment that it was becoming essential to the public safety. To imagine that at such a crisis credit
might be dispensed with, would be the extreme of infatuation. In the modern system of war, nations the
most wealthy are obliged to have recourse to large loans. A country so little opulent as ours must feel this
necessity in a much stronger degree. But who would lend to a government that prefaced its overtures for
borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures
for paying? The loans it might be able to procure would be as limited in their extent as burdensome in their
conditions. They would be made upon the same principles that usurers commonly lend to bankrupt and
fraudulent debtors, with a sparing hand and at enormous premiums.
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It may perhaps be imagined that, from the scantiness of the resources of the country, the necessity of
diverting the established funds in the case supposed would exist, though the national government should
possess an unrestrained power of taxation. But two considerations will serve to quiet all apprehension on
this head: one is, that we are sure the resources of the community, in their full extent, will be brought into
activity for the benefit of the Union; the other is, that whatever deficiences there may be, can without
difficulty be supplied by loans.
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The power of creating new funds upon new objects of taxation, by its own authority, would enable the
national government to borrow as far as its necessities might require. Foreigners, as well as the citizens of
America, could then reasonably repose confidence in its engagements; but to depend upon a government
that must itself depend upon thirteen other governments for the means of fulfilling its contracts, when
once its situation is clearly understood, would require a degree of credulity not often to be met with in the
pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice.
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Reflections of this kind may have trifling weight with men who hope to see realized in America the halcyon
scenes of the poetic or fabulous age; but to those who believe we are likely to experience a common
portion of the vicissitudes and calamities which have fallen to the lot of other nations, they must appear
entitled to serious attention. Such men must behold the actual situation of their country with painful
solicitude, and deprecate the evils which ambition or revenge might, with too much facility, inflict upon it.
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From the New York Packet. Tuesday, January 1, 1788.
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IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all
subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection
or combination, commands the assent of the mind. Where it produces not this effect, it must proceed
either from some defect or disorder in the organs of perception, or from the influence of some strong
interest, or passion, or prejudice. Of this nature are the maxims in geometry, that "the whole is greater than
its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and
all right angles are equal to each other." Of the same nature are these other maxims in ethics and politics,
that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that
every power ought to be commensurate with its object; that there ought to be no limitation of a power
destined to effect a purpose which is itself incapable of limitation. And there are other truths in the two
latter sciences which, if they cannot pretend to rank in the class of axioms, are yet such direct inferences
from them, and so obvious in themselves, and so agreeable to the natural and unsophisticated dictates of
common-sense, that they challenge the assent of a sound and unbiased mind, with a degree of force and
conviction almost equally irresistible.
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The objects of geometrical inquiry are so entirely abstracted from those pursuits which stir up and put in
motion the unruly passions of the human heart, that mankind, without difficulty, adopt not only the more
simple theorems of the science, but even those abstruse paradoxes which, however they may appear
susceptible of demonstration, are at variance with the natural conceptions which the mind, without the aid
of philosophy, would be led to entertain upon the subject. The INFINITE DIVISIBILITY of matter, or, in other
words, the INFINITE divisibility of a FINITE thing, extending even to the minutest atom, is a point agreed
among geometricians, though not less incomprehensible to common-sense than any of those mysteries in
religion, against which the batteries of infidelity have been so industriously leveled.
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But in the sciences of morals and politics, men are found far less tractable. To a certain degree, it is right
and useful that this should be the case. Caution and investigation are a necessary armor against error and
imposition. But this untractableness may be carried too far, and may degenerate into obstinacy,
perverseness, or disingenuity. Though it cannot be pretended that the principles of moral and political
knowledge have, in general, the same degree of certainty with those of the mathematics, yet they have
much better claims in this respect than, to judge from the conduct of men in particular situations, we
should be disposed to allow them. The obscurity is much oftener in the passions and prejudices of the
reasoner than in the subject. Men, upon too many occasions, do not give their own understandings fair
play; but, yielding to some untoward bias, they entangle themselves in words and confound themselves in
subtleties.
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How else could it happen (if we admit the objectors to be sincere in their opposition), that positions so clear
as those which manifest the necessity of a general power of taxation in the government of the Union,
should have to encounter any adversaries among men of discernment? Though these positions have been
elsewhere fully stated, they will perhaps not be improperly recapitulated in this place, as introductory to an
examination of what may have been offered by way of objection to them. They are in substance as follows:
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A government ought to contain in itself every power requisite to the full accomplishment of the objects
committed to its care, and to the complete execution of the trusts for which it is responsible, free from
every other control but a regard to the public good and to the sense of the people.
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As the duties of superintending the national defense and of securing the public peace against foreign or
domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned,
the power of making that provision ought to know no other bounds than the exigencies of the nation and
the resources of the community.
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As revenue is the essential engine by which the means of answering the national exigencies must be
procured, the power of procuring that article in its full extent must necessarily be comprehended in that of
providing for those exigencies.
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As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised
over the States in their collective capacities, the federal government must of necessity be invested with an
unqualified power of taxation in the ordinary modes.
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Did not experience evince the contrary, it would be natural to conclude that the propriety of a general
power of taxation in the national government might safely be permitted to rest on the evidence of these
propositions, unassisted by any additional arguments or illustrations. But we find, in fact, that the
antagonists of the proposed Constitution, so far from acquiescing in their justness or truth, seem to make
their principal and most zealous effort against this part of the plan. It may therefore be satisfactory to
analyze the arguments with which they combat it.
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Those of them which have been most labored with that view, seem in substance to amount to this: "It is not
true, because the exigencies of the Union may not be susceptible of limitation, that its power of laying taxes
ought to be unconfined. Revenue is as requisite to the purposes of the local administrations as to those of
the Union; and the former are at least of equal importance with the latter to the happiness of the people. It
is, therefore, as necessary that the State governments should be able to command the means of supplying
their wants, as that the national government should possess the like faculty in respect to the wants of the
Union. But an indefinite power of taxation in the LATTER might, and probably would in time, deprive the
FORMER of the means of providing for their own necessities; and would subject them entirely to the mercy
of the national legislature. As the laws of the Union are to become the supreme law of the land, as it is to
have power to pass all laws that may be NECESSARY for carrying into execution the authorities with which it
is proposed to vest it, the national government might at any time abolish the taxes imposed for State
objects upon the pretense of an interference with its own. It might allege a necessity of doing this in order
to give efficacy to the national revenues. And thus all the resources of taxation might by degrees become
the subjects of federal monopoly, to the entire exclusion and destruction of the State governments."
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This mode of reasoning appears sometimes to turn upon the supposition of usurpation in the national
government; at other times it seems to be designed only as a deduction from the constitutional operation
of its intended powers. It is only in the latter light that it can be admitted to have any pretensions to
fairness. The moment we launch into conjectures about the usurpations of the federal government, we get
into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may
range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on
which side to turn to extricate itself from the perplexities into which it has so rashly adventured. Whatever
may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of
possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of
absolute scepticism and irresolution. I repeat here what I have observed in substance in another place, that
all observations founded upon the danger of usurpation ought to be referred to the composition and
structure of the government, not to the nature or extent of its powers. The State governments, by their
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original constitutions, are invested with complete sovereignty. In what does our security consist against
usurpation from that quarter? Doubtless in the manner of their formation, and in a due dependence of
those who are to administer them upon the people. If the proposed construction of the federal government
be found, upon an impartial examination of it, to be such as to afford, to a proper extent, the same species
of security, all apprehensions on the score of usurpation ought to be discarded.
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It should not be forgotten that a disposition in the State governments to encroach upon the rights of the
Union is quite as probable as a disposition in the Union to encroach upon the rights of the State
governments. What side would be likely to prevail in such a conflict, must depend on the means which the
contending parties could employ toward insuring success. As in republics strength is always on the side of
the people, and as there are weighty reasons to induce a belief that the State governments will commonly
possess most influence over them, the natural conclusion is that such contests will be most apt to end to
the disadvantage of the Union; and that there is greater probability of encroachments by the members
upon the federal head, than by the federal head upon the members. But it is evident that all conjectures of
this kind must be extremely vague and fallible: and that it is by far the safest course to lay them altogether
aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in
the Constitution. Every thing beyond this must be left to the prudence and firmness of the people; who, as
they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the
constitutional equilibrium between the general and the State governments. Upon this ground, which is
evidently the true one, it will not be difficult to obviate the objections which have been made to an
indefinite power of taxation in the United States.
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From The Independent Journal. Wednesday, January 2, 1788.
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ALTHOUGH I am of opinion that there would be no real danger of the consequences which seem to be
apprehended to the State governments from a power in the Union to control them in the levies of money,
because I am persuaded that the sense of the people, the extreme hazard of provoking the resentments of
the State governments, and a conviction of the utility and necessity of local administrations for local
purposes, would be a complete barrier against the oppressive use of such a power; yet I am willing here to
allow, in its full extent, the justness of the reasoning which requires that the individual States should
possess an independent and uncontrollable authority to raise their own revenues for the supply of their
own wants. And making this concession, I affirm that (with the sole exception of duties on imports and
exports) they would, under the plan of the convention, retain that authority in the most absolute and
unqualified sense; and that an attempt on the part of the national government to abridge them in the
exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its
Constitution.
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An entire consolidation of the States into one complete national sovereignty would imply an entire
subordination of the parts; and whatever powers might remain in them, would be altogether dependent on
the general will. But as the plan of the convention aims only at a partial union or consolidation, the State
governments would clearly retain all the rights of sovereignty which they before had, and which were not,
by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation,
of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an
exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another
prohibited the States from exercising the like authority; and where it granted an authority to the Union, to
which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT. I
use these terms to distinguish this last case from another which might appear to resemble it, but which
would, in fact, be essentially different; I mean where the exercise of a concurrent jurisdiction might be
productive of occasional interferences in the POLICY of any branch of administration, but would not imply
any direct contradiction or repugnancy in point of constitutional authority. These three cases of exclusive
jurisdiction in the federal government may be exemplified by the following instances: The last clause but
one in the eighth section of the first article provides expressly that Congress shall exercise "EXCLUSIVE
LEGISLATION" over the district to be appropriated as the seat of government. This answers to the first case.
The first clause of the same section empowers Congress "to lay and collect taxes, duties, imposts and
excises"; and the second clause of the tenth section of the same article declares that, "NO STATE SHALL,
without the consent of Congress, lay any imposts or duties on imports or exports, except for the purpose of
executing its inspection laws." Hence would result an exclusive power in the Union to lay duties on imports
and exports, with the particular exception mentioned; but this power is abridged by another clause, which
declares that no tax or duty shall be laid on articles exported from any State; in consequence of which
qualification, it now only extends to the DUTIES ON IMPORTS. This answers to the second case. The third
will be found in that clause which declares that Congress shall have power "to establish an UNIFORM RULE
of naturalization throughout the United States." This must necessarily be exclusive; because if each State
had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.
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A case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects
the question immediately under consideration. I mean the power of imposing taxes on all articles other
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than exports and imports. This, I contend, is manifestly a concurrent and coequal authority in the United
States and in the individual States. There is plainly no expression in the granting clause which makes that
power EXCLUSIVE in the Union. There is no independent clause or sentence which prohibits the States from
exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is to be
deduced from the restraint laid upon the States in relation to duties on imports and exports. This restriction
implies an admission that, if it were not inserted, the States would possess the power it excludes; and it
implies a further admission, that as to all other taxes, the authority of the States remains undiminished. In
any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant
to the Union of the power of laying such duties implied the exclusion of the States, or even their
subordination in this particular, there could be no need of such a restriction; it would be dangerous,
because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the
reasoning of the objectors be just, could not have been intended; I mean that the States, in all cases to
which the restriction did not apply, would have a concurrent power of taxation with the Union. The
restriction in question amounts to what lawyers call a NEGATIVE PREGNANT that is, a NEGATION of one
thing, and an AFFIRMANCE of another; a negation of the authority of the States to impose taxes on imports
and exports, and an affirmance of their authority to impose them on all other articles. It would be mere
sophistry to argue that it was meant to exclude them ABSOLUTELY from the imposition of taxes of the
former kind, and to leave them at liberty to lay others SUBJECT TO THE CONTROL of the national legislature.
The restraining or prohibitory clause only says, that they shall not, WITHOUT THE CONSENT OF CONGRESS,
lay such duties; and if we are to understand this in the sense last mentioned, the Constitution would then
be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the States,
WITH THE CONSENT of the national legislature, might tax imports and exports; and that they might tax
every other article, UNLESS CONTROLLED by the same body. If this was the intention, why not leave it, in
the first instance, to what is alleged to be the natural operation of the original clause, conferring a general
power of taxation upon the Union? It is evident that this could not have been the intention, and that it will
not bear a construction of the kind.
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As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot
be supported in that sense which would be requisite to work an exclusion of the States. It is, indeed,
possible that a tax might be laid on a particular article by a State which might render it INEXPEDIENT that
thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional
inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an
increase on either side, would be mutually questions of prudence; but there would be involved no direct
contradiction of power. The particular policy of the national and of the State systems of finance might now
and then not exactly coincide, and might require reciprocal forbearances. It is not, however a mere
possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can
by implication alienate and extinguish a pre-existing right of sovereignty.
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The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power;
and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain
with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the
whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that,
notwithstanding the affirmative grants of general authorities, there has been the most pointed care in
those cases where it was deemed improper that the like authorities should reside in the States, to insert
negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists
altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and
furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and
refutes every hypothesis to the contrary.
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From The Independent Journal. Wednesday, January 2, 1788.
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THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted
upon the following clause. The last clause of the eighth section of the first article of the plan under
consideration authorizes the national legislature "to make all laws which shall be NECESSARY and PROPER
for carrying into execution THE POWERS by that Constitution vested in the government of the United
States, or in any department or officer thereof"; and the second clause of the sixth article declares, "that
the Constitution and the laws of the United States made IN PURSUANCE THEREOF, and the treaties made by
their authority shall be the SUPREME LAW of the land, any thing in the constitution or laws of any State to
the contrary notwithstanding."
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These two clauses have been the source of much virulent invective and petulant declamation against the
proposed Constitution. They have been held up to the people in all the exaggerated colors of
misrepresentation as the pernicious engines by which their local governments were to be destroyed and
their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor
age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to
those who may not have happened to contemplate them in the same light, it may be affirmed with perfect
confidence that the constitutional operation of the intended government would be precisely the same, if
these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory
of a truth which would have resulted by necessary and unavoidable implication from the very act of
constituting a federal government, and vesting it with certain specified powers. This is so clear a
proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented
against this part of the plan, without emotions that disturb its equanimity.
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What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power
of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making
LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and
collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are
the proper means of executing such a power, but NECESSARY and PROPER laws?
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This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the
clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a
power to pass all laws NECESSARY and PROPER for the execution of that power; and what does the
unfortunate and calumniated provision in question do more than declare the same truth, to wit, that the
national legislature, to whom the power of laying and collecting taxes had been previously given, might, in
the execution of that power, pass all laws NECESSARY and PROPER to carry it into effect? I have applied
these observations thus particularly to the power of taxation, because it is the immediate subject under
consideration, and because it is the most important of the authorities proposed to be conferred upon the
Union. But the same process will lead to the same result, in relation to all other powers declared in the
Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been
affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any
thing exceptionable, it must be sought for in the specific powers upon which this general declaration is
predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least
perfectly harmless.
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But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for
greater caution, and to guard against all cavilling refinements in those who might hereafter feel a
disposition to curtail and evade the legitimate authorities of the Union. The Convention probably foresaw,
what it has been a principal aim of these papers to inculcate, that the danger which most threatens our
political welfare is that the State governments will finally sap the foundations of the Union; and might
therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have
been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised
against it; as that very cry betrays a disposition to question the great and essential truth which it is
manifestly the object of that provision to declare.
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But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for
executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the
simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the
national government, like every other, must judge, in the first instance, of the proper exercise of its powers,
and its constituents in the last. If the federal government should overpass the just bounds of its authority
and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they
have formed, and take such measures to redress the injury done to the Constitution as the exigency may
suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by
the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority
(which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of
descent in any State, would it not be evident that, in making such an attempt, it had exceeded its
jurisdiction, and infringed upon that of the State? Suppose, again, that upon the pretense of an interference
with its revenues, it should undertake to abrogate a landtax imposed by the authority of a State; would it
not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of
tax, which its Constitution plainly supposes to exist in the State governments? If there ever should be a
doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of
their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure
the plainest and simplest truths.
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But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be
drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would
amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to
whom it is prescribed are bound to observe. This results from every political association. If individuals enter
into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number
of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the
powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the
individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith
of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY.
But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its
constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will
become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be
treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union,
like the one we have just before considered, only declares a truth, which flows immediately and necessarily
from the institution of a federal government. It will not, I presume, have escaped observation, that it
EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention
merely as an instance of caution in the convention; since that limitation would have been to be understood,
though it had not been expressed.
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Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and
could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid
by the authority of the State, (unless upon imports and exports), would not be the supreme law of the land,
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but a usurpation of power not granted by the Constitution. As far as an improper accumulation of taxes on
the same object might tend to render the collection difficult or precarious, this would be a mutual
inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious
exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and
presumed, however, that mutual interest would dictate a concert in this respect which would avoid any
material inconvenience. The inference from the whole is, that the individual States would, under the
proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent
of which they may stand in need, by every kind of taxation, except duties on imports and exports. It will be
shown in the next paper that this CONCURRENT JURISDICTION in the article of taxation was the only
admissible substitute for an entire subordination, in respect to this branch of power, of the State authority
to that of the Union.
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From The Independent Journal. Saturday, January 5, 1788.
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I FLATTER myself it has been clearly shown in my last number that the particular States, under the proposed
Constitution, would have COEQUAL authority with the Union in the article of revenue, except as to duties
on imports. As this leaves open to the States far the greatest part of the resources of the community, there
can be no color for the assertion that they would not possess means as abundant as could be desired for
the supply of their own wants, independent of all external control. That the field is sufficiently wide will
more fully appear when we come to advert to the inconsiderable share of the public expenses for which it
will fall to the lot of the State governments to provide.
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To argue upon abstract principles that this co-ordinate authority cannot exist, is to set up supposition and
theory against fact and reality. However proper such reasonings might be to show that a thing OUGHT NOT
TO EXIST, they are wholly to be rejected when they are made use of to prove that it does not exist contrary
to the evidence of the fact itself. It is well known that in the Roman republic the legislative authority, in the
last resort, resided for ages in two different political bodies not as branches of the same legislature, but as
distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician;
in the other, the plebian. Many arguments might have been adduced to prove the unfitness of two such
seemingly contradictory authorities, each having power to ANNUL or REPEAL the acts of the other. But a
man would have been regarded as frantic who should have attempted at Rome to disprove their existence.
It will be readily understood that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA. The
former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician
interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy. And
yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of
human greatness.
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In the case particularly under consideration, there is no such contradiction as appears in the example cited;
there is no power on either side to annul the acts of the other. And in practice there is little reason to
apprehend any inconvenience; because, in a short course of time, the wants of the States will naturally
reduce themselves within A VERY NARROW COMPASS; and in the interim, the United States will, in all
probability, find it convenient to abstain wholly from those objects to which the particular States would be
inclined to resort.
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To form a more precise judgment of the true merits of this question, it will be well to advert to the
proportion between the objects that will require a federal provision in respect to revenue, and those which
will require a State provision. We shall discover that the former are altogether unlimited, and that the latter
are circumscribed within very moderate bounds. In pursuing this inquiry, we must bear in mind that we are
not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil
government are not to be framed upon a calculation of existing exigencies, but upon a combination of
these with the probable exigencies of ages, according to the natural and tried course of human affairs.
Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the
national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to
provide for future contingencies as they may happen; and as these are illimitable in their nature, it is
impossible safely to limit that capacity. It is true, perhaps, that a computation might be made with sufficient
accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting
engagements of the Union, and to maintain those establishments which, for some time to come, would
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suffice in time of peace. But would it be wise, or would it not rather be the extreme of folly, to stop at this
point, and to leave the government intrusted with the care of the national defense in a state of absolute
incapacity to provide for the protection of the community against future invasions of the public peace, by
foreign war or domestic convulsions? If, on the contrary, we ought to exceed this point, where can we stop,
short of an indefinite power of providing for emergencies as they may arise? Though it is easy to assert, in
general terms, the possibility of forming a rational judgment of a due provision against probable dangers,
yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that
they would be found as vague and uncertain as any that could be produced to establish the probable
duration of the world. Observations confined to the mere prospects of internal attacks can deserve no
weight; though even these will admit of no satisfactory calculation: but if we mean to be a commercial
people, it must form a part of our policy to be able one day to defend that commerce. The support of a
navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic.
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Admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of
government from offensive war founded upon reasons of state, yet certainly we ought not to disable it
from guarding the community against the ambition or enmity of other nations. A cloud has been for some
time hanging over the European world. If it should break forth into a storm, who can insure us that in its
progress a part of its fury would not be spent upon us? No reasonable man would hastily pronounce that
we are entirely out of its reach. Or if the combustible materials that now seem to be collecting should be
dissipated without coming to maturity, or if a flame should be kindled without extending to us, what
security can we have that our tranquillity will long remain undisturbed from some other cause or from
some other quarter? Let us recollect that peace or war will not always be left to our option; that however
moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the
ambition of others. Who could have imagined at the conclusion of the last war that France and Britain,
wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each
other? To judge from the history of mankind, we shall be compelled to conclude that the fiery and
destructive passions of war reign in the human breast with much more powerful sway than the mild and
beneficent sentiments of peace; and that to model our political systems upon speculations of lasting
tranquillity, is to calculate on the weaker springs of the human character.
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What are the chief sources of expense in every government? What has occasioned that enormous
accumulation of debts with which several of the European nations are oppressed? The answers plainly is,
wars and rebellions; the support of those institutions which are necessary to guard the body politic against
these two most mortal diseases of society. The expenses arising from those institutions which are relative
to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments,
with their different appendages, and to the encouragement of agriculture and manufactures (which will
comprehend almost all the objects of state expenditure), are insignificant in comparison with those which
relate to the national defense.
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In the kingdom of Great Britain, where all the ostentatious apparatus of monarchy is to be provided for, not
above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last
mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted
for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and
armies. If, on the one hand, it should be observed that the expenses incurred in the prosecution of the
ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge
of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there
should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its
domestic administration, and the frugality and economy which in that particular become the modest
simplicity of republican government. If we balance a proper deduction from one side against that which it is
supposed ought to be made from the other, the proportion may still be considered as holding good.
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But let us advert to the large debt which we have ourselves contracted in a single war, and let us only
calculate on a common share of the events which disturb the peace of nations, and we shall instantly
perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion
between the objects of federal and state expenditures. It is true that several of the States, separately, are
encumbered with considerable debts, which are an excrescence of the late war. But this cannot happen
again, if the proposed system be adopted; and when these debts are discharged, the only call for revenue
of any consequence, which the State governments will continue to experience, will be for the mere support
of their respective civil list; to which, if we add all contingencies, the total amount in every State ought to
fall considerably short of two hundred thousand pounds.
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In framing a government for posterity as well as ourselves, we ought, in those provisions which are
designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. If this
principle be a just one our attention would be directed to a provision in favor of the State governments for
an annual sum of about two hundred thousand pounds; while the exigencies of the Union could be
susceptible of no limits, even in imagination. In this view of the subject, by what logic can it be maintained
that the local governments ought to command, in perpetuity, an EXCLUSIVE source of revenue for any sum
beyond the extent of two hundred thousand pounds? To extend its power further, in EXCLUSION of the
authority of the Union, would be to take the resources of the community out of those hands which stood in
need of them for the public welfare, in order to put them into other hands which could have no just or
proper occasion for them.
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Suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the
objects of revenue, between the Union and its members, in PROPORTION to their comparative necessities;
what particular fund could have been selected for the use of the States, that would not either have been
too much or too little too little for their present, too much for their future wants? As to the line of
separation between external and internal taxes, this would leave to the States, at a rough computation, the
command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its
expenses; and to the Union, one third of the resources of the community, to defray from nine tenths to
nineteen twentieths of its expenses. If we desert this boundary and content ourselves with leaving to the
States an exclusive power of taxing houses and lands, there would still be a great disproportion between
the MEANS and the END; the possession of one third of the resources of the community to supply, at most,
one tenth of its wants. If any fund could have been selected and appropriated, equal to and not greater
than the object, it would have been inadequate to the discharge of the existing debts of the particular
States, and would have left them dependent on the Union for a provision for this purpose.
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The preceding train of observation will justify the position which has been elsewhere laid down, that "A
CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire
subordination, in respect to this branch of power, of State authority to that of the Union." Any separation of
the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great
INTERESTS of the Union to the POWER of the individual States. The convention thought the concurrent
jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an
indefinite constitutional power of taxation in the Federal government with an adequate and independent
power in the States to provide for their own necessities. There remain a few other lights, in which this
important subject of taxation will claim a further consideration.
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For the Independent Journal. Saturday, January 5, 1788
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BEFORE we proceed to examine any other objections to an indefinite power of taxation in the Union, I shall
make one general remark; which is, that if the jurisdiction of the national government, in the article of
revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the
public burdens to fall upon those objects. Two evils would spring from this source: the oppression of
particular branches of industry; and an unequal distribution of the taxes, as well among the several States
as among the citizens of the same State.
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Suppose, as has been contended for, the federal power of taxation were to be confined to duties on
imports, it is evident that the government, for want of being able to command other resources, would
frequently be tempted to extend these duties to an injurious excess. There are persons who imagine that
they can never be carried to too great a length; since the higher they are, the more it is alleged they will
tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote
domestic manufactures. But all extremes are pernicious in various ways. Exorbitant duties on imported
articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and
eventually to the revenue itself: they tend to render other classes of the community tributary, in an
improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets;
they sometimes force industry out of its more natural channels into others in which it flows with less
advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself
without any retribution from the consumer. When the demand is equal to the quantity of goods at market,
the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion
falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am
apt to think that a division of the duty, between the seller and the buyer, more often happens than is
commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every
additional imposition laid upon it. The merchant, especially in a country of small commercial capital, is often
under a necessity of keeping prices down in order to a more expeditious sale.
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The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that
it is far more equitable that the duties on imports should go into a common stock, than that they should
redound to the exclusive benefit of the importing States. But it is not so generally true as to render it
equitable, that those duties should form the only national fund. When they are paid by the merchant they
operate as an additional tax upon the importing State, whose citizens pay their proportion of them in the
character of consumers. In this view they are productive of inequality among the States; which inequality
would be increased with the increased extent of the duties. The confinement of the national revenues to
this species of imposts would be attended with inequality, from a different cause, between the
manufacturing and the non-manufacturing States. The States which can go farthest towards the supply of
their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so
great a proportion of imported articles as those States which are not in the same favorable situation. They
would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. To
make them do this it is necessary that recourse be had to excises, the proper objects of which are particular
kinds of manufactures. New York is more deeply interested in these considerations than such of her citizens
as contend for limiting the power of the Union to external taxation may be aware of. New York is an
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importing State, and is not likely speedily to be, to any great extent, a manufacturing State. She would, of
course, suffer in a double light from restraining the jurisdiction of the Union to commercial imposts.
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So far as these observations tend to inculcate a danger of the import duties being extended to an injurious
extreme it may be observed, conformably to a remark made in another part of these papers, that the
interest of the revenue itself would be a sufficient guard against such an extreme. I readily admit that this
would be the case, as long as other resources were open; but if the avenues to them were closed, HOPE,
stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional
penalties, which, for a time, would have the intended effect, till there had been leisure to contrive
expedients to elude these new precautions. The first success would be apt to inspire false opinions, which it
might require a long course of subsequent experience to correct. Necessity, especially in politics, often
occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. But even if
this supposed excess should not be a consequence of the limitation of the federal power of taxation, the
inequalities spoken of would still ensue, though not in the same degree, from the other causes that have
been noticed. Let us now return to the examination of objections.
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One which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the
House of Representatives is not sufficiently numerous for the reception of all the different classes of
citizens, in order to combine the interests and feelings of every part of the community, and to produce a
due sympathy between the representative body and its constituents. This argument presents itself under a
very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is
addressed. But when we come to dissect it with attention, it will appear to be made up of nothing but fairsounding words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which
it is contended for, is unnecessary. I reserve for another place the discussion of the question which relates
to the sufficiency of the representative body in respect to numbers, and shall content myself with
examining here the particular use which has been made of a contrary supposition, in reference to the
immediate subject of our inquiries.
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The idea of an actual representation of all classes of the people, by persons of each class, is altogether
visionary. Unless it were expressly provided in the Constitution, that each different occupation should send
one or more members, the thing would never take place in practice. Mechanics and manufacturers will
always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their
own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing
arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately
connected with the operations of commerce. They know that the merchant is their natural patron and
friend; and they are aware, that however great the confidence they may justly feel in their own good sense,
their interests can be more effectually promoted by the merchant than by themselves. They are sensible
that their habits in life have not been such as to give them those acquired endowments, without which, in a
deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and
weight, and superior acquirements of the merchants render them more equal to a contest with any spirit
which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading
interests. These considerations, and many others that might be mentioned prove, and experience confirms
it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and
those whom they recommend. We must therefore consider merchants as the natural representatives of all
these classes of the community.
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With regard to the learned professions, little need be observed; they truly form no distinct interest in
society, and according to their situation and talents, will be indiscriminately the objects of the confidence
and choice of each other, and of other parts of the community.
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Nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, I
take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on
land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every
landholder will therefore have a common interest to keep the taxes on land as low as possible; and
common interest may always be reckoned upon as the surest bond of sympathy. But if we even could
suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is
there to conclude, that the first would stand a better chance of being deputed to the national legislature
than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that
moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a
smaller number, than in the assembly, which is composed of a greater number. Where the qualifications of
the electors are the same, whether they have to choose a small or a large number, their votes will fall upon
those in whom they have most confidence; whether these happen to be men of large fortunes, or of
moderate property, or of no property at all.
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It is said to be necessary, that all classes of citizens should have some of their own number in the
representative body, in order that their feelings and interests may be the better understood and attended
to. But we have seen that this will never happen under any arrangement that leaves the votes of the people
free. Where this is the case, the representative body, with too few exceptions to have any influence on the
spirit of the government, will be composed of landholders, merchants, and men of the learned professions.
But where is the danger that the interests and feelings of the different classes of citizens will not be
understood or attended to by these three descriptions of men? Will not the landholder know and feel
whatever will promote or insure the interest of landed property? And will he not, from his own interest in
that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? Will not
the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the
mechanic and manufacturing arts, to which his commerce is so nearly allied? Will not the man of the
learned profession, who will feel a neutrality to the rivalships between the different branches of industry,
be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to
him conducive to the general interests of the society?
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If we take into the account the momentary humors or dispositions which may happen to prevail in
particular parts of the society, and to which a wise administration will never be inattentive, is the man
whose situation leads to extensive inquiry and information less likely to be a competent judge of their
nature, extent, and foundation than one whose observation does not travel beyond the circle of his
neighbors and acquaintances? Is it not natural that a man who is a candidate for the favor of the people,
and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors,
should take care to inform himself of their dispositions and inclinations, and should be willing to allow them
their proper degree of influence upon his conduct? This dependence, and the necessity of being bound
himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong
chords of sympathy between the representative and the constituent.
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There is no part of the administration of government that requires extensive information and a thorough
knowledge of the principles of political economy, so much as the business of taxation. The man who
understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any
particular class of citizens to the procurement of revenue. It might be demonstrated that the most
productive system of finance will always be the least burdensome. There can be no doubt that in order to a
judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be
acquainted with the general genius, habits, and modes of thinking of the people at large, and with the
resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and
feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in
that sense let every considerate citizen judge for himself where the requisite qualification is most likely to
be found.
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WE HAVE seen that the result of the observations, to which the foregoing number has been principally
devoted, is, that from the natural operation of the different interests and views of the various classes of the
community, whether the representation of the people be more or less numerous, it will consist almost
entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly
represent all those different interests and views. If it should be objected that we have seen other
descriptions of men in the local legislatures, I answer that it is admitted there are exceptions to the rule,
but not in sufficient number to influence the general complexion or character of the government. There are
strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command
the tribute due to their merit, not only from the classes to which they particularly belong, but from the
society in general. The door ought to be equally open to all; and I trust, for the credit of human nature, that
we shall see examples of such vigorous plants flourishing in the soil of federal as well as of State legislation;
but occasional instances of this sort will not render the reasoning founded upon the general course of
things, less conclusive.
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The subject might be placed in several other lights that would all lead to the same result; and in particular it
might be asked, What greater affinity or relation of interest can be conceived between the carpenter and
blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of
them? It is notorious that there are often as great rivalships between different branches of the mechanic or
manufacturing arts as there are between any of the departments of labor and industry; so that, unless the
representative body were to be far more numerous than would be consistent with any idea of regularity or
wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been
considering should ever be realized in practice. But I forbear to dwell any longer on a matter which has
hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency.
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There is another objection of a somewhat more precise nature that claims our attention. It has been
asserted that a power of internal taxation in the national legislature could never be exercised with
advantage, as well from the want of a sufficient knowledge of local circumstances, as from an interference
between the revenue laws of the Union and of the particular States. The supposition of a want of proper
knowledge seems to be entirely destitute of foundation. If any question is depending in a State legislature
respecting one of the counties, which demands a knowledge of local details, how is it acquired? No doubt
from the information of the members of the county. Cannot the like knowledge be obtained in the national
legislature from the representatives of each State? And is it not to be presumed that the men who will
generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate
that information? Is the knowledge of local circumstances, as applied to taxation, a minute topographical
acquaintance with all the mountains, rivers, streams, highways, and bypaths in each State; or is it a general
acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures,
with the nature of its products and consumptions, with the different degrees and kinds of its wealth,
property, and industry?
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Nations in general, even under governments of the more popular kind, usually commit the administration
of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the
first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign
or legislature.
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Inquisitive and enlightened statesmen are deemed everywhere best qualified to make a judicious selection
of the objects proper for revenue; which is a clear indication, as far as the sense of mankind can have
weight in the question, of the species of knowledge of local circumstances requisite to the purposes of
taxation.
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The taxes intended to be comprised under the general denomination of internal taxes may be subdivided
into those of the DIRECT and those of the INDIRECT kind. Though the objection be made to both, yet the
reasoning upon it seems to be confined to the former branch. And indeed, as to the latter, by which must
be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the
nature of the difficulties apprehended. The knowledge relating to them must evidently be of a kind that will
either be suggested by the nature of the article itself, or can easily be procured from any well-informed
man, especially of the mercantile class. The circumstances that may distinguish its situation in one State
from its situation in another must be few, simple, and easy to be comprehended. The principal thing to be
attended to, would be to avoid those articles which had been previously appropriated to the use of a
particular State; and there could be no difficulty in ascertaining the revenue system of each. This could
always be known from the respective codes of laws, as well as from the information of the members from
the several States.
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The objection, when applied to real property or to houses and lands, appears to have, at first sight, more
foundation, but even in this view it will not bear a close examination. Land taxes are commonly laid in one
of two modes, either by ACTUAL valuations, permanent or periodical, or by OCCASIONAL assessments, at
the discretion, or according to the best judgment, of certain officers whose duty it is to make them. In
either case, the EXECUTION of the business, which alone requires the knowledge of local details, must be
devolved upon discreet persons in the character of commissioners or assessors, elected by the people or
appointed by the government for the purpose. All that the law can do must be to name the persons or to
prescribe the manner of their election or appointment, to fix their numbers and qualifications and to draw
the general outlines of their powers and duties. And what is there in all this that cannot as well be
performed by the national legislature as by a State legislature? The attention of either can only reach to
general principles; local details, as already observed, must be referred to those who are to execute the plan.
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But there is a simple point of view in which this matter may be placed that must be altogether satisfactory.
The national legislature can make use of the SYSTEM OF EACH STATE WITHIN THAT STATE. The method of
laying and collecting this species of taxes in each State can, in all its parts, be adopted and employed by the
federal government.
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Let it be recollected that the proportion of these taxes is not to be left to the discretion of the national
legislature, but is to be determined by the numbers of each State, as described in the second section of the
first article. An actual census or enumeration of the people must furnish the rule, a circumstance which
effectually shuts the door to partiality or oppression. The abuse of this power of taxation seems to have
been provided against with guarded circumspection. In addition to the precaution just mentioned, there is a
provision that "all duties, imposts, and excises shall be UNIFORM throughout the United States."
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It has been very properly observed by different speakers and writers on the side of the Constitution, that if
the exercise of the power of internal taxation by the Union should be discovered on experiment to be really
inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in
its stead. By way of answer to this, it has been triumphantly asked, Why not in the first instance omit that
ambiguous power, and rely upon the latter resource? Two solid answers may be given. The first is, that the
exercise of that power, if convenient, will be preferable, because it will be more effectual; and it is
impossible to prove in theory, or otherwise than by the experiment, that it cannot be advantageously
exercised. The contrary, indeed, appears most probable. The second answer is, that the existence of such a
power in the Constitution will have a strong influence in giving efficacy to requisitions. When the States
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know that the Union can apply itself without their agency, it will be a powerful motive for exertion on their
part.
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As to the interference of the revenue laws of the Union, and of its members, we have already seen that
there can be no clashing or repugnancy of authority. The laws cannot, therefore, in a legal sense, interfere
with each other; and it is far from impossible to avoid an interference even in the policy of their different
systems. An effectual expedient for this purpose will be, mutually, to abstain from those objects which
either side may have first had recourse to. As neither can CONTROL the other, each will have an obvious
and sensible interest in this reciprocal forbearance. And where there is an IMMEDIATE common interest,
we may safely count upon its operation. When the particular debts of the States are done away, and their
expenses come to be limited within their natural compass, the possibility almost of interference will vanish.
A small land tax will answer the purpose of the States, and will be their most simple and most fit resource.
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Many spectres have been raised out of this power of internal taxation, to excite the apprehensions of the
people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful
forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political
legerdemain.
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As to the first point, there are two cases in which there can be no room for double sets of officers: one,
where the right of imposing the tax is exclusively vested in the Union, which applies to the duties on
imports; the other, where the object has not fallen under any State regulation or provision, which may be
applicable to a variety of objects. In other cases, the probability is that the United States will either wholly
abstain from the objects preoccupied for local purposes, or will make use of the State officers and State
regulations for collecting the additional imposition. This will best answer the views of revenue, because it
will save expense in the collection, and will best avoid any occasion of disgust to the State governments and
to the people. At all events, here is a practicable expedient for avoiding such an inconvenience; and nothing
more can be required than to show that evils predicted to not necessarily result from the plan.
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As to any argument derived from a supposed system of influence, it is a sufficient answer to say that it
ought not to be presumed; but the supposition is susceptible of a more precise answer. If such a spirit
should infest the councils of the Union, the most certain road to the accomplishment of its aim would be to
employ the State officers as much as possible, and to attach them to the Union by an accumulation of their
emoluments. This would serve to turn the tide of State influence into the channels of the national
government, instead of making federal influence flow in an opposite and adverse current. But all
suppositions of this kind are invidious, and ought to be banished from the consideration of the great
question before the people. They can answer no other end than to cast a mist over the truth.
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As to the suggestion of double taxation, the answer is plain. The wants of the Union are to be supplied in
one way or another; if to be done by the authority of the federal government, it will not be to be done by
that of the State government. The quantity of taxes to be paid by the community must be the same in
either case; with this advantage, if the provision is to be made by the Union that the capital resource of
commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a
much greater extent under federal than under State regulation, and of course will render it less necessary
to recur to more inconvenient methods; and with this further advantage, that as far as there may be any
real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in
the choice and arrangement of the means; and must naturally tend to make it a fixed point of policy in the
national administration to go as far as may be practicable in making the luxury of the rich tributary to the
public treasury, in order to diminish the necessity of those impositions which might create dissatisfaction in
the poorer and most numerous classes of the society. Happy it is when the interest which the government
has in the preservation of its own power, coincides with a proper distribution of the public burdens, and
tends to guard the least wealthy part of the community from oppression!
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As to poll taxes, I, without scruple, confess my disapprobation of them; and though they have prevailed
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from an early period in those States which have uniformly been the most tenacious of their rights, I
should lament to see them introduced into practice under the national government. But does it follow
because there is a power to lay them that they will actually be laid? Every State in the Union has power to
impose taxes of this kind; and yet in several of them they are unknown in practice. Are the State
governments to be stigmatized as tyrannies, because they possess this power? If they are not, with what
propriety can the like power justify such a charge against the national government, or even be urged as an
obstacle to its adoption? As little friendly as I am to the species of imposition, I still feel a thorough
conviction that the power of having recourse to it ought to exist in the federal government. There are
certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be
forborne, become essential to the public weal. And the government, from the possibility of such
emergencies, ought ever to have the option of making use of them. The real scarcity of objects in this
country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not
abridging the discretion of the national councils in this respect. There may exist certain critical and
tempestuous conjunctures of the State, in which a poll tax may become an inestimable resource. And as I
know nothing to exempt this portion of the globe from the common calamities that have befallen other
parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a
single weapon, which in any possible contingency might be usefully employed for the general defense and
security.
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(I have now gone through the examination of such of the powers proposed to be vested in the United
States, which may be considered as having an immediate relation to the energy of the government; and
have endeavored to answer the principal objections which have been made to them. I have passed over in
silence those minor authorities, which are either too inconsiderable to have been thought worthy of the
hostilities of the opponents of the Constitution, or of too manifest propriety to admit of controversy. The
mass of judiciary power, however, might have claimed an investigation under this head, had it not been for
the consideration that its organization and its extent may be more advantageously considered in
connection. This has determined me to refer it to the branch of our inquiries upon which we shall next
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enter.)
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(I have now gone through the examination of those powers proposed to be conferred upon the federal
government which relate more peculiarly to its energy, and to its efficiency for answering the great and
primary objects of union. There are others which, though omitted here, will, in order to render the view of
the subject more complete, be taken notice of under the next head of our inquiries. I flatter myself the
progress already made will have sufficed to satisfy the candid and judicious part of the community that
some of the objections which have been most strenuously urged against the Constitution, and which were
most formidable in their first appearance, are not only destitute of substance, but if they had operated in
the formation of the plan, would have rendered it incompetent to the great ends of public happiness and
national prosperity. I equally flatter myself that a further and more critical investigation of the system will
serve to recommend it still more to every sincere and disinterested advocate for good government and will
leave no doubt with men of this character of the propriety and expediency of adopting it. Happy will it be
for ourselves, and more honorable for human nature, if we have wisdom and virtue enough to set so
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glorious an example to mankind!)
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The New England States.
Two versions of this paragraph appear in different editions.
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Two versions of this paragraph appear in different editions.
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AFED35: FEDERAL TAXING POWER MUST BE RESTRAINED
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George Mason of Virginia opposed the Constitution because it lacked a Bill of Rights, and centralized
powers further than he felt it necessary. Mason delivered the following speech before the Virginia ratifying
convention, June 4, 1788.
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Mr. Chairman, whether the Constitution be good or bad, the present clause [Article 1, Section 2] clearly
discovers that it is a national government, and no longer a Confederation. I mean that clause which gives
the first hint of the general government laying direct taxes. The assumption of this power of laying direct
taxes does, of itself, entirely change the confederation of the states into one consolidated government. This
power, being at discretion, unconfined, and without any kind of control, must carry every thing before it.
The very idea of converting what was formerly a confederation to a consolidated government is totally
subversive of every principle which has hitherto governed us. This power is calculated to annihilate totally
the state governments. Will the people of this great community [Virginia] submit to be individually taxed by
two different and distinct powers? Will they suffer themselves to be doubly harassed? These two
concurrent powers cannot exist long together; the one will destroy the other. The general government
being paramount to, and in every respect more powerful than the state governments, the latter must give
way to the former....
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Requisitions [under the Articles of Confederation] have been often refused, sometimes from an
impossibility of complying with them; often from that great variety of circumstances which retards the
collection of moneys; and perhaps sometimes from a wilful design of procrastinating. But why shall we give
up to the national government this power, so dangerous in its nature, and for which its members will not
have sufficient information? Is it not well known that what would be a proper tax in one state would be
grievous in another? The gentleman who has favored us with a eulogium in favor of this system [Wilson C.
Nicholas], must, after all the encomiums he has been pleased to bestow upon it, acknowledge that our
federal representatives must be unacquainted with the situation of their constituents. Sixty-five members
cannot possibly know the situation and circumstances of all the inhabitants of this immense continent.
When a certain sum comes to be taxed, and the mode of levying to be fixed, they will lay the tax on that
article which will be most productive and easiest in the collection, without consulting the real
circumstances or convenience of a country, with which, in fact, they cannot be sufficiently acquainted.
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The mode of levying taxes is of the utmost consequence; and yet here it is to be determined by those who
have neither knowledge of our situation, nor a common interest with us, nor a fellow-feeling for us. The
subject of taxation differs in three fourths, nay, I might say with truth, in four fifths of the states. If we trust
the national government with an effectual way of raising the necessary sums, it is sufficient: everything we
do further is trusting the happiness and rights of the people. Why, then, should we give up this dangerous
power of individual taxation? Why leave the manner of laying taxes to those who, in the nature of things,
cannot be acquainted with the situation of those on whom they are to impose them, when it can be done
by those who are well acquainted with it? If, instead of giving this oppressive power, we give them such an
effectual alternative as will answer the purpose, without encountering the evil and danger that might arise
from it, then I would cheerfully acquiesce; and would it not be far more eligible? I candidly acknowledge the
inefficacy of the Confederation; but requisitions have been made which were impossible to be complied
with- requisitions for more gold and silver than were in the United States. If we give the general
government the power of demanding their quotas of the states, with an alternative of laying direct taxes in
case of non-compliance, then the mischief would be avoided. And the certainty of this conditional power
would, in all human probability, prevent the application, and the sums necessary for the Union would be
then laid by the states, by those who know how it can best be raised, by those who have a fellow-feeling for
us. Give me leave to say, that the sum raised one way with convenience and case, would be very oppressive
another way. Why, then, not leave this power to be exercised by those who know the mode most
convenient for the inhabitants, and not by those who must necessarily apportion it in such manner as shall
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be oppressive? . . . An indispensable amendment . . . is, that Congress shall not exercise the power of raising
direct taxes till the states shall have refused to comply with the requisitions of Congress. On this condition it
may be granted; but I see no reason to grant it unconditionally, as the states can raise the taxes with more
case, and lay them on the inhabitants with more propriety, than it is possible for the general government to
do. If Congress hath this power without control, the taxes will be laid by those who have no fellow- feeling
or acquaintance with the people. This is my objection to the article now under consideration. It is a very
great and important one. I therefore beg gentlemen to consider it. Should this power be restrained, I shall
withdraw my objections to this part of the Constitution; but as it stands, it is an objection so strong in my
mind, that its amendment is with me a sine qua non of its adoption. I wish for such amendments, and such
only, as are necessary to secure the dearest rights of the people....
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AFED34: THE PROBLEM OF CONCURRENT TAXATION
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The following speech by Patrick Henry was delivered to the Virginia ratifying convention, June 5, 1788.
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I never will give up the power of direct taxation but for a scourge. I am willing to give it conditionally; 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. . . .
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In this scheme of energetic government, the people will find two sets of taxgatherers-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, 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 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.
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THE CONVENTION OVERSTEPPED ITS BOUNDS
AFED37: FACTIONS AND THE CONSTITUTION
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Richard Henry Lee, wrote as The Federal Farmer, this was taken from Letter I, October 10, 1787
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.... To have a just idea of the government before us, and to show that a consolidated one is the object in
view, it is necessary not only to examine the plan, but also its history, and the politics of its particular
friends.
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The confederation was formed when great confidence was placed in the voluntary exertions of individuals,
and of the respective states; and the framers of it, to guard against usurpation, so limited, and checked the
powers, that, in many respects, they are inadequate to the exigencies of the union. We find, therefore,
members of congress urging alterations in the federal system almost as soon as it was adopted. It was early
proposed to vest congress with powers to levy an impost, to regulate trade, etc., but such was known to be
the caution of the states in parting with power, that the vestment even of these, was proposed to be under
several checks and limitations. During the war, the general confusion, and the introduction of paper money,
infused in the minds of the people vague ideas respecting government and credit. We expected too much
from the return of peace, and of course we have been disappointed. Our governments have been new and
unsettled; and several legislatures, by making tender, suspension, and paper money laws, have given just
cause of uneasiness to creditors. By these and other causes, several orders of men in the community have
been prepared, by degrees, for a change of government. And this very abuse of power in the legislatures,
which in some cases has been charged upon the democratic part of the community, has furnished
aristocratical men with those very weapons, and those very means, with which, in great measure, they are
rapidly effecting their favorite object. And should an oppressive government be the consequence of the
proposed change, posterity may reproach not only a few overbearing, unprincipled men, but those parties
in the states which have misused their powers.
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The conduct of several legislatures, touching paper money, and tender laws, has prepared many honest
men for changes in government, which otherwise they would not have thought of-when by the evils, on the
one hand, and by the secret instigations of artful men, on the other, the minds of men were become
sufficiently uneasy, a bold step was taken, which is usually followed by a revolution, or a civil war. A general
convention for mere commercial purposes was moved for-the authors of this measure saw that the
people's attention was turned solely to the amendment of the federal system; and that, had the idea of a
total change been started, probably no state would have appointed members to the convention. The idea
of destroying ultimately, the state government, and forming one consolidated system, could not have been
admitted-a convention, therefore, merely for vesting in congress power to regulate trade was proposed.
This was pleasing to the commercial towns; and the landed people had little or no concern about it. In
September, 1786, a few men from the middle states met at Annapolis, and hastily proposed a convention to
be held in May, 1787, for the purpose, generally, of amending the confederation. This was done before the
delegates of Massachusetts, and of the other states arrived-still not a word was said about destroying the
old constitution, and making a new one. The states still unsuspecting, and not aware that they were passing
the Rubicon, appointed members to the new convention, for the sole and express purpose of revising and
amending the confederation-and, probably, not one man in ten thousand in the United States, till within
these ten or twelve days, had an idea that the old ship was to be destroyed, and be put to the alternative of
embarking in the new ship presented, or of being left in danger of sinking. The States, I believe, universally
supposed the convention would report alterations in the confederation, which would pass an examination
in congress, and after being agreed to there, would be confirmed by all the legislatures, or be rejected.
Virginia made a very respectable appointment, and placed at the head of it the first man in America. In this
appointment there was a mixture of political characters; but Pennsylvania appointed principally those men
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who are esteemed aristocratical. Here the favorite moment for changing the government was evidently
discerned by a few men, who seized it with address. Ten other states appointed, and tho' they chose men
principally connected with commerce and the judicial department yet they appointed many good
republican characters. Had they all attended we should now see, I am persuaded, a better system
presented. The nonattendance of eight or nine men, who were appointed members of the convention, I
shall ever consider as a very unfortunate event to the United States. Had they attended, I am pretty clear
that the result of the convention would not have had that strong tendency to aristocracy now discernible in
every part of the plan. There would not have been so great an accumulation of powers, especially as to the
internal police of this country in a few hands as the constitution reported proposes to vest in them-the
young visionary men, and the consolidating aristocracy, would have been more restrained than they have
been. Eleven states met in the convention, and after four months close attention presented the new
constitution, to be adopted or rejected by the people. The uneasy and fickle part of the community may be
prepared to receive any form of government; but I presume the enlightened and substantial part will give
any constitution presented for their adoption a candid and thorough examination.... We shall view the
convention with proper respect-and, at the same time, that we reflect there were men of abilities and
integrity in it, we must recollect how disproportionately the democratic and aristocratic parts of the
community were represented. Perhaps the judicious friends and opposers of the new constitution will
agree, that it is best to let it rely solely on its own merits, or be condemned for its own defects. . . .
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This subject of consolidating the states is new. And because forty or fifty men have agreed in a system, to
suppose the good sense of this country, an enlightened nation, must adopt it without examination, and
though in a state of profound peace, without endeavoring to amend those parts they perceive are
defective, dangerous to freedom, and destructive of the valuable principles of republican government -is
truly humiliating. It is true there may be danger in delay; but there is danger in adopting the system in its
present form.
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And I see the danger in either case will arise principally from the conduct and views of two very
unprincipled parties in the United States-two fires, between which the honest and substantial people have
long found themselves situated. One party is composed of little insurgents, men in debt, who want no law,
and who want a share of the property of others; these are called revellers, Shayites, etc. The other party is
composed of a few, but more dangerous men, with their servile dependents; these avariciously grasp at all
power and property; you may discover in all the actions of these men, an evident dislike to free and equal
government, and they will go systematically to work to change, essentially, the forms of government in this
country; these are called aristocrats, monarchists, etc. Between these two parties is the weight of the
community; the men of middling property, men not in debt on the one hand, and men, on the other,
content with republican governments, and not aiming at immense fortunes, offices, and power. In 1786,
the little insurgents, the revellers, came forth, invaded the rights of others, and attempted to establish
governments according to their wills. Their movements evidently gave encouragement to the other party,
which, in 1787, has taken the political field, and with its fashionable dependents, and the tongue and the
pen, is endeavoring to establish in a great haste, a politer kind of government. These two parties, which will
probably be opposed or united as it may suit their interests and views, are really insignificant, compared
with the solid, free, and independent part of the community. It is not my intention to suggest, that either of
these parties, and the real friends of the proposed constitution, are the same men. The fact is, these
aristocrats support and hasten the adoption of the proposed constitution, merely because they think it is a
stepping stone to their favorite object. I think I am well founded in this idea. I think the general politics of
these men support it, as well as the common observation among them: That the proffered plan is the best
that can be got at present, it will do for a few years, and lead to something better. The sensible and
judicious part of the community will carefully weigh all these circumstances; they will view the late
convention as a respectable body of men-America probably never will see an assembly of men, of a like
number, more respectable. But the members of the convention met without knowing the sentiments of
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one man in ten thousand in these states respecting the new ground taken. Their doings are but the first
attempts in the most important scene ever opened. Though each individual in the state conventions will
not, probably, be so respectable as each individual in the federal convention, yet as the state conventions
will probably consist of fifteen hundred or two thousand men of abilities, and versed in the science of
government, collected from all parts of the community and from all orders of men, it must be
acknowledged that the weight of respectability will be in them. In them will be collected the solid sense and
the real political character of the country. Being revisers of the subject, they will possess peculiar
advantages. To say that these conventions ought not to attempt, coolly and deliberately, the revision of the
system, or that they cannot amend it, is very foolish or very assuming. . . .
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AFED38: SOME REACTIONS TO FEDERALIST ARGUMENTS
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This was an essay by "BRUTUS JUNIOR" which appeared in The New-York Journal on November 8, 1787.
Two articles by "A COUNTRYMAN" were written by DeWitt Clinton, and appeared also in the New York
Journal on January 10 and February 14, 1788.
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I have read with a degree of attention several publications which have lately appeared in favor of the new
Constitution; and as far as I am able to discern, the arguments (if they can be so termed) of most weight,
which are urged in its favor, may be reduced to the two following:
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1st. That the men who formed it, were wise and experienced; that they were an illustrious band of patriots,
and had the happiness of their country at heart; that they were four months deliberating on the subject,
and therefore, it must be a perfect system.
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2nd. That if the system be not received, this country will be without any government, and of consequence,
will be reduced to a state of anarchy and confusion, and involved in bloodshed and carnage; and in the end,
a government will be imposed upon us, not the result of reason and reflection, but of force and usurpation.
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As I do not find ' that either Cato or the Centinel, Brutus, or the Old Whig, or any other writer against this
constitution, have undertaken a particular refutation of this new species of reasoning, I take the liberty of
offering to the public, through the channel of your paper, the few following animadversions on the subject;
and, the rather, because I have discovered, that some of my fellow citizens have been imposed upon by it.
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With respect to the first,-it will be readily perceived that it precludes all investigation of the merits of the
proposed constitution, and leads to an adoption of the plan without inquiring whether it be good or bad.
For if we are to infer the perfection of this system from the characters and abilities of the men who formed
it, we may as well determine to accept it without any inquiry as with. A number of persons in this [New
York] as well as the other states, have, upon this principle, determined to submit to it without even reading
or knowing its contents.
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But supposing the premises from which this conclusion is drawn to be just, it then becomes essential in
order to give validity to the argument, to inquire into the characters of those who composed this body, that
we may determine whether we can be justified in placing such unbounded confidence in them.
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It is an invidious task, to call in question the characters of individuals, especially of such as are placed in
illustrious stations. But when we are required implicitly to submit our opinions to those of others, from a
consideration that they are so wise and good as not to be liable to err, and that too in an affair which
involves in it the happiness of ourselves and our posterity, every honest man will justify a decent
investigation of characters in plain language.
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It is readily admitted that many individuals who composed this body were men of the first talents and
integrity in the union. It is at the same time, well known to every man, who is but moderately acquainted
with the characters of the members, that many of them are possessed of high aristocratic ideas, and the
most sovereign contempt of the common people; that not a few were strongly disposed in favor of
monarchy; that there were some of no small talents and of great influence, of consummate cunning and
masters of intrigue, whom the war found poor or in embarrassed circumstances, and left with princely
fortunes acquired in public employment. . . . that there were others who were young, ardent, and
ambitious, who wished for a government corresponding with their feelings, while they were destitute of
experience ... in political researches; that there were not a few who were gaping for posts of honor and
emolument-these we find exulting in the idea of a change which will divert places of honor, influence and
emolument, into a different channel, where the confidence of the people will not be necessary to their
acquirement. It is not to be wondered at, that an assembly thus composed should produce a system liable
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to well founded objections, and which will require very essential alterations. We are told by one of
themselves (Mr. [James] Wilson of Philadelphia) the plan was [a] matter of accommodation, and it is not
unreasonable to suppose, that in this accommodation, principles might be introduced which would render
the liberties of the people very insecure.
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I confess I think it of no importance what are the characters of the framers of this government, and
therefore should not have called them in question, if they had not been so often urged in print, and in
conversation, in its favor. It ought to rest on its own intrinsic merit. If it is good, it is capable of being
vindicated; if it is bad, it ought not to be supported. It is degrading to a freeman, and humiliating to a
rational one, to pin his faith on the sleeve of any man, or body of men, in an affair of such momentous
importance.
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In answer to the second argument, I deny that we are in immediate danger of anarchy and commotions.
Nothing but the passions of wicked and ambitious men will put us in the least danger on this head. Those
who are anxious to precipitate a measure will always tell us that the present is the critical moment; now is
the time, the crisis is arrived, and the present minute must be seized. Tyrants have always made use of this
plea; but nothing in our circumstances can justify it.
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The country is in profound peace, and we are not threatened by invasions from any quarter. The
governments of the respective states are in the full exercise of their powers; and the lives, the liberty, and
property of individuals are protected. All present exigencies are answered by them. It is true, the regulation
of trade and a competent provision for the payment of the interest of the public debt is wanting; but no
immediate commotion will arise from these; time may be taken for calm discussion and deliberate
conclusions. Individuals are just recovering from the losses and embarrassment sustained by the late war.
Industry and frugality are taking their station, and banishing from the community, idleness and prodigality.
Individuals are lessening their private debts, and several millions of the public debt is discharged by the sale
of the western territory. There is no reason, therefore, why we should precipitately and rashly adopt a
system, which is imperfect or insecure. We may securely deliberate and propose amendments and
alterations. I know it is said we cannot change for the worse; but if we act the part of wise men, we shall
take care that we change for the better. It will be labor lost, if after all our pains we are in no better
circumstances than we were before.
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I have seen enough to convince me very fully, that the new constitution is a very bad one, and a hundredfold worse than our present government. And I do not perceive that any of the writers in favor of it
(although some of them use a vast many fine words, and show a great deal of learning) are able to remove
any of the objections which are made against it. Mr. [James] Wilson, indeed, speaks very highly of it, but we
have only his word for its goodness; and nothing is more natural than for a mother to speak well of her own
bantling, however ordinary it may be. He seems, however, to be pretty honest in one thing-where he says,
"It is the nature of man to pursue his own interest, in preference to the public good" - for they tell me he is
a lawyer, and his interest then makes him for the new government, for it will be a noble thing for lawyers.
Besides, he appears to have an eye to some high place under it, since he speaks with great pleasure of the
places of honor and emolument being diverted to a new channel by this change of system. As to Mr. Publius
[The Federalist], I have read a great many of his papers, and I really cannot find out what he would be at. He
seems to me as if he was going to write a history, so I have concluded to wait and buy one of his books,
when they come out. The only thing I can understand from him, as far as I have read, is that it is better to
be united than divided-that a great many people are stronger than a few-and that Scotland is better off
since the union with England than before. And I think, he proves too, very clearly, that the fewer nations
there are in the world, the fewer disputes [there] will be about the law of nations-and the greater number
that are joined in one government, the abler will they be to raise ships and soldiers, and the less need for
fighting. But I do not learn that any body denies these matters, or that they have any thin- to do with the
new constitution, Indeed I am at a loss to know, whether Mr. Publius means to persuade us to return back
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to the old government, and make ourselves as happy as Scotland has by its union, or to accept of the new
constitution, and get all the world to join with us, so as to make one large government. It would certainly, if
what he says is true, be very convenient for Nova-Scotia and Canada, and, for ought I know, his advice will
have great weight with them. I have also read several other of the pieces, which appear to be wrote by
some other little authors, and by people of little consequence, though they seem to think themselves men
of importance, and take upon them grand names such as . . . Caesar,' . . . Now Mr. Caesar do[es] not depend
so much on reasoning as upon bullying. He abuses the people very much, and if he spoke in our
neighborhood as impudently as he writes in the newspapers, I question whether he would come off with
whole bones. From the manner he talks of the people, he certainly cannot be one of them himself. I
imagine he has lately come over from some old country, where they are all Lords and no common people. If
so, it would be as well for him to go back again as to meddle himself with our business, since he holds such
a bad opinion of us.
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A COUNTRYMAN
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The Federalist, as be terms himself, or Publius, puts one in mind of some of the gentlemen of the long robe,
when hard pushed, in a bad cause, with a rich client. They frequently say a great deal which does not apply;
but yet, if it will not convince the judge nor jury, may, perhaps, help to make them forget some part of the
evidence, embarrass their opponent, and make the audience stare, besides increasing the practice.
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A COUNTRYMAN
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FED37: CONCERNING
GOVERNMENT.
THE
DIFFICULTIES
OF THE
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From the Daily Advertiser. Friday, January 11, 1788.
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MADISON
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CONVENTION
IN
DEVISING
A
PROPER FORM
OF
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IN REVIEWING the defects of the existing Confederation, and showing that they cannot be supplied by a
government of less energy than that before the public, several of the most important principles of the latter
fell of course under consideration. But as the ultimate object of these papers is to determine clearly and
fully the merits of this Constitution, and the expediency of adopting it, our plan cannot be complete without
taking a more critical and thorough survey of the work of the convention, without examining it on all its
sides, comparing it in all its parts, and calculating its probable effects. That this remaining task may be
executed under impressions conducive to a just and fair result, some reflections must in this place be
indulged, which candor previously suggests.
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It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that
spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the
public good; and that this spirit is more apt to be diminished than promoted, by those occasions which
require an unusual exercise of it. To those who have been led by experience to attend to this consideration,
it could not appear surprising, that the act of the convention, which recommends so many important
changes and innovations, which may be viewed in so many lights and relations, and which touches the
springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side
and on the other, to a fair discussion and accurate judgment of its merits. In some, it has been too evident
from their own publications, that they have scanned the proposed Constitution, not only with a
predisposition to censure, but with a predetermination to condemn; as the language held by others betrays
an opposite predetermination or bias, which must render their opinions also of little moment in the
question. In placing, however, these different characters on a level, with respect to the weight of their
opinions, I wish not to insinuate that there may not be a material difference in the purity of their intentions.
It is but just to remark in favor of the latter description, that as our situation is universally admitted to be
peculiarly critical, and to require indispensably that something should be done for our relief, the
predetermined patron of what has been actually done may have taken his bias from the weight of these
considerations, as well as from considerations of a sinister nature. The predetermined adversary, on the
other hand, can have been governed by no venial motive whatever. The intentions of the first may be
upright, as they may on the contrary be culpable. The views of the last cannot be upright, and must be
culpable. But the truth is, that these papers are not addressed to persons falling under either of these
characters. They solicit the attention of those only, who add to a sincere zeal for the happiness of their
country, a temper favorable to a just estimate of the means of promoting it.
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Persons of this character will proceed to an examination of the plan submitted by the convention, not only
without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless
plan was not to be expected. Nor will they barely make allowances for the errors which may be chargeable
on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they
themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of
others.
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With equal readiness will it be perceived, that besides these inducements to candor, many allowances
ought to be made for the difficulties inherent in the very nature of the undertaking referred to the
convention.
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The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers, that
the existing Confederation is founded on principles which are fallacious; that we must consequently change
this first foundation, and with it the superstructure resting upon it. It has been shown, that the other
confederacies which could be consulted as precedents have been vitiated by the same erroneous principles,
and can therefore furnish no other light than that of beacons, which give warning of the course to be
shunned, without pointing out that which ought to be pursued. The most that the convention could do in
such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of
our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold
them.
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Among the difficulties encountered by the convention, a very important one must have lain in combining
the requisite stability and energy in government, with the inviolable attention due to liberty and to the
republican form. Without substantially accomplishing this part of their undertaking, they would have very
imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not
be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject.
Energy in government is essential to that security against external and internal danger, and to that prompt
and salutary execution of the laws which enter into the very definition of good government. Stability in
government is essential to national character and to the advantages annexed to it, as well as to that repose
and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular
and mutable legislation is not more an evil in itself than it is odious to the people; and it may be
pronounced with assurance that the people of this country, enlightened as they are with regard to the
nature, and interested, as the great body of them are, in the effects of good government, will never be
satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the State
administrations. On comparing, however, these valuable ingredients with the vital principles of liberty, we
must perceive at once the difficulty of mingling them together in their due proportions. The genius of
republican liberty seems to demand on one side, not only that all power should be derived from the people,
but that those intrusted with it should be kept in independence on the people, by a short duration of their
appointments; and that even during this short period the trust should be placed not in a few, but a number
of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a
length of time the same. A frequent change of men will result from a frequent return of elections; and a
frequent change of measures from a frequent change of men: whilst energy in government requires not
only a certain duration of power, but the execution of it by a single hand.
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How far the convention may have succeeded in this part of their work, will better appear on a more
accurate view of it. From the cursory view here taken, it must clearly appear to have been an arduous part.
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Not less arduous must have been the task of marking the proper line of partition between the authority of
the general and that of the State governments. Every man will be sensible of this difficulty, in proportion as
he has been accustomed to contemplate and discriminate objects extensive and complicated in their
nature. The faculties of the mind itself have never yet been distinguished and defined, with satisfactory
precision, by all the efforts of the most acute and metaphysical philosophers. Sense, perception, judgment,
desire, volition, memory, imagination, are found to be separated by such delicate shades and minute
gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source
of ingenious disquisition and controversy. The boundaries between the great kingdom of nature, and, still
more, between the various provinces, and lesser portions, into which they are subdivided, afford another
illustration of the same important truth. The most sagacious and laborious naturalists have never yet
succeeded in tracing with certainty the line which separates the district of vegetable life from the
neighboring region of unorganized matter, or which marks the termination of the former and the
commencement of the animal empire. A still greater obscurity lies in the distinctive characters by which the
objects in each of these great departments of nature have been arranged and assorted.
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When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to
be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which
the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must
perceive the necessity of moderating still further our expectations and hopes from the efforts of human
sagacity. Experience has instructed us that no skill in the science of government has yet been able to
discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and
judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in
the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the
greatest adepts in political science.
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The experience of ages, with the continued and combined labors of the most enlightened legislatures and
jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws
and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime
law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be
clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously
pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law,
of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting
the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with
the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more
or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular
discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the
imperfection of the human faculties, the medium through which the conceptions of men are conveyed to
each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore,
requires not only that the ideas should be distinctly formed, but that they should be expressed by words
distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases
for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it
must happen that however accurately objects may be discriminated in themselves, and however accurately
the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy
of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to
the complexity and novelty of the objects defined. When the Almighty himself condescends to address
mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the
cloudy medium through which it is communicated.
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Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection
of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain
degree of obscurity. The convention, in delineating the boundary between the federal and State
jurisdictions, must have experienced the full effect of them all.
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To the difficulties already mentioned may be added the interfering pretensions of the larger and smaller
States. We cannot err in supposing that the former would contend for a participation in the government,
fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious
of the equality at present enjoyed by them. We may well suppose that neither side would entirely yield to
the other, and consequently that the struggle could be terminated only by compromise. It is extremely
probable, also, that after the ratio of representation had been adjusted, this very compromise must have
produced a fresh struggle between the same parties, to give such a turn to the organization of the
government, and to the distribution of its powers, as would increase the importance of the branches, in
forming which they had respectively obtained the greatest share of influence. There are features in the
Constitution which warrant each of these suppositions; and as far as either of them is well founded, it
shows that the convention must have been compelled to sacrifice theoretical propriety to the force of
extraneous considerations.
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Nor could it have been the large and small States only, which would marshal themselves in opposition to
each other on various points. Other combinations, resulting from a difference of local position and policy,
must have created additional difficulties. As every State may be divided into different districts, and its
citizens into different classes, which give birth to contending interests and local jealousies, so the different
parts of the United States are distinguished from each other by a variety of circumstances, which produce a
like effect on a larger scale. And although this variety of interests, for reasons sufficiently explained in a
former paper, may have a salutary influence on the administration of the government when formed, yet
every one must be sensible of the contrary influence, which must have been experienced in the task of
forming it.
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Would it be wonderful if, under the pressure of all these difficulties, the convention should have been
forced into some deviations from that artificial structure and regular symmetry which an abstract view of
the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his
imagination? The real wonder is that so many difficulties should have been surmounted, and surmounted
with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of
candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of
pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and
signally extended to our relief in the critical stages of the revolution.
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We had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully
made in the United Netherlands for reforming the baneful and notorious vices of their constitution. The
history of almost all the great councils and consultations held among mankind for reconciling their
discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history
of factions, contentions, and disappointments, and may be classed among the most dark and degraded
pictures which display the infirmities and depravities of the human character. If, in a few scattered
instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth;
and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. In revolving
the causes from which these exceptions result, and applying them to the particular instances before us, we
are necessarily led to two important conclusions. The first is, that the convention must have enjoyed, in a
very singular degree, an exemption from the pestilential influence of party animosities the disease most
incident to deliberative bodies, and most apt to contaminate their proceedings. The second conclusion is
that all the deputations composing the convention were satisfactorily accommodated by the final act, or
were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial
interests to the public good, and by a despair of seeing this necessity diminished by delays or by new
experiments.
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FED38: THE SAME SUBJECT CONTINUED, AND THE INCOHERENCE OF THE OBJECTIONS TO THE NEW PLAN
EXPOSED.
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From The Independent Journal. Saturday, January 12, 1788.
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MADISON
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IT IS not a little remarkable that in every case reported by ancient history, in which government has been
established with deliberation and consent, the task of framing it has not been committed to an assembly of
men, but has been performed by some individual citizen of preeminent wisdom and approved integrity.
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Minos, we learn, was the primitive founder of the government of Crete, as Zaleucus was of that of the
Locrians. Theseus first, and after him Draco and Solon, instituted the government of Athens. Lycurgus was
the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus, and the
work completed by two of his elective successors, Numa and Tullius Hostilius. On the abolition of royalty
the consular administration was substituted by Brutus, who stepped forward with a project for such a
reform, which, he alleged, had been prepared by Tullius Hostilius, and to which his address obtained the
assent and ratification of the senate and people. This remark is applicable to confederate governments also.
Amphictyon, we are told, was the author of that which bore his name. The Achaean league received its first
birth from Achaeus, and its second from Aratus.
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What degree of agency these reputed lawgivers might have in their respective establishments, or how far
they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained.
In some, however, the proceeding was strictly regular. Draco appears to have been intrusted by the people
of Athens with indefinite powers to reform its government and laws. And Solon, according to Plutarch, was
in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and
absolute power of new-modeling the constitution. The proceedings under Lycurgus were less regular; but
as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single
efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the
intervention of a deliberative body of citizens.
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Whence could it have proceeded, that a people, jealous as the Greeks were of their liberty, should so far
abandon the rules of caution as to place their destiny in the hands of a single citizen? Whence could it have
proceeded, that the Athenians, a people who would not suffer an army to be commanded by fewer than
ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a
fellow-citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of
themselves and their posterity, than a select body of citizens, from whose common deliberations more
wisdom, as well as more safety, might have been expected? These questions cannot be fully answered,
without supposing that the fears of discord and disunion among a number of counsellors exceeded the
apprehension of treachery or incapacity in a single individual. History informs us, likewise, of the difficulties
with which these celebrated reformers had to contend, as well as the expedients which they were obliged
to employ in order to carry their reforms into effect. Solon, who seems to have indulged a more
temporizing policy, confessed that he had not given to his countrymen the government best suited to their
happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the
necessity of mixing a portion of violence with the authority of superstition, and of securing his final success
by a voluntary renunciation, first of his country, and then of his life. If these lessons teach us, on one hand,
to admire the improvement made by America on the ancient mode of preparing and establishing regular
plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties
incident to such experiments, and of the great imprudence of unnecessarily multiplying them.
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Is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are
such as have resulted rather from the defect of antecedent experience on this complicated and difficult
subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be
ascertained until an actual trial shall have pointed them out? This conjecture is rendered probable, not only
by many considerations of a general nature, but by the particular case of the Articles of Confederation. It is
observable that among the numerous objections and amendments suggested by the several States, when
these articles were submitted for their ratification, not one is found which alludes to the great and radical
error which on actual trial has discovered itself. And if we except the observations which New Jersey was
led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a
single suggestion was of sufficient moment to justify a revision of the system. There is abundant reason,
nevertheless, to suppose that immaterial as these objections were, they would have been adhered to with
a very dangerous inflexibility, in some States, had not a zeal for their opinions and supposed interests been
stifled by the more powerful sentiment of self-preservation. One State, we may remember, persisted for
several years in refusing her concurrence, although the enemy remained the whole period at our gates, or
rather in the very bowels of our country. Nor was her pliancy in the end effected by a less motive, than the
fear of being chargeable with protracting the public calamities, and endangering the event of the contest.
Every candid reader will make the proper reflections on these important facts.
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A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be
delayed without extreme danger, after coolly revolving his situation, and the characters of different
physicians, selects and calls in such of them as he judges most capable of administering relief, and best
entitled to his confidence. The physicians attend; the case of the patient is carefully examined; a
consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with
proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of
his constitution. They are equally unanimous in prescribing the remedy, by which this happy effect is to be
produced. The prescription is no sooner made known, however, than a number of persons interpose, and,
without denying the reality or danger of the disorder, assure the patient that the prescription will be poison
to his constitution, and forbid him, under pain of certain death, to make use of it. Might not the patient
reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree
among themselves on some other remedy to be substituted? And if he found them differing as much from
one another as from his first counsellors, would he not act prudently in trying the experiment unanimously
recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a
speedy remedy, nor agree in proposing one?
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Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She
has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by
others against following this advice under pain of the most fatal consequences. Do the monitors deny the
reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No. Are they
agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be
substituted? Let them speak for themselves. This one tells us that the proposed Constitution ought to be
rejected, because it is not a confederation of the States, but a government over individuals. Another admits
that it ought to be a government over individuals to a certain extent, but by no means to the extent
proposed. A third does not object to the government over individuals, or to the extent proposed, but to the
want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it
ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in
their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and
misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and
places of election. An objector in a large State exclaims loudly against the unreasonable equality of
representation in the Senate. An objector in a small State is equally loud against the dangerous inequality in
the House of Representatives. From this quarter, we are alarmed with the amazing expense, from the
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number of persons who are to administer the new government. From another quarter, and sometimes
from the same quarter, on another occasion, the cry is that the Congress will be but a shadow of a
representation, and that the government would be far less objectionable if the number and the expense
were doubled. A patriot in a State that does not import or export, discerns insuperable objections against
the power of direct taxation. The patriotic adversary in a State of great exports and imports, is not less
dissatisfied that the whole burden of taxes may be thrown on consumption. This politician discovers in the
Constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy.
Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or
other of them; whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so
far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to
keep it upright and firm against its opposite propensities. With another class of adversaries to the
Constitution the language is that the legislative, executive, and judiciary departments are intermixed in such
a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of
liberty. Whilst this objection circulates in vague and general expressions, there are but a few who lend their
sanction to it. Let each one come forward with his particular explanation, and scarce any two are exactly
agreed upon the subject. In the eyes of one the junction of the Senate with the President in the responsible
function of appointing to offices, instead of vesting this executive power in the Executive alone, is the
vicious part of the organization. To another, the exclusion of the House of Representatives, whose numbers
alone could be a due security against corruption and partiality in the exercise of such a power, is equally
obnoxious. With another, the admission of the President into any share of a power which ever must be a
dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of
republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of
impeachments by the Senate, which is alternately a member both of the legislative and executive
departments, when this power so evidently belonged to the judiciary department. "We concur fully," reply
others, "in the objection to this part of the plan, but we can never agree that a reference of impeachments
to the judiciary authority would be an amendment of the error. Our principal dislike to the organization
arises from the extensive powers already lodged in that department." Even among the zealous patrons of a
council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be
constituted. The demand of one gentleman is, that the council should consist of a small number to be
appointed by the most numerous branch of the legislature. Another would prefer a larger number, and
considers it as a fundamental condition that the appointment should be made by the President himself.
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As it can give no umbrage to the writers against the plan of the federal Constitution, let us suppose, that as
they are the most zealous, so they are also the most sagacious, of those who think the late convention were
unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let
us further suppose that their country should concur, both in this favorable opinion of their merits, and in
their unfavorable opinion of the convention; and should accordingly proceed to form them into a second
convention, with full powers, and for the express purpose of revising and remoulding the work of the first.
Were the experiment to be seriously made, though it required some effort to view it seriously even in
fiction, I leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to
their predecessors, they would, in any one point, depart so widely from their example, as in the discord and
ferment that would mark their own deliberations; and whether the Constitution, now before the public,
would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to
depend on his own return from exile and death, if it were to be immediately adopted, and were to continue
in force, not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers.
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It is a matter both of wonder and regret, that those who raise so many objections against the new
Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary
that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to
give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered
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and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or
because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his
fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the
capital objections urged against the new system lie with tenfold weight against the existing Confederation?
Is an indefinite power to raise money dangerous in the hands of the federal government? The present
Congress can make requisitions to any amount they please, and the States are constitutionally bound to
furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both
abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous? The
Confederation gives to Congress that power also; and they have already begun to make use of it. Is it
improper and unsafe to intermix the different powers of government in the same body of men? Congress, a
single body of men, are the sole depositary of all the federal powers. Is it particularly dangerous to give the
keys of the treasury, and the command of the army, into the same hands? The Confederation places them
both in the hands of Congress. Is a bill of rights essential to liberty? The Confederation has no bill of rights.
Is it an objection against the new Constitution, that it empowers the Senate, with the concurrence of the
Executive, to make treaties which are to be the laws of the land? The existing Congress, without any such
control, can make treaties which they themselves have declared, and most of the States have recognized, to
be the supreme law of the land. Is the importation of slaves permitted by the new Constitution for twenty
years? By the old it is permitted forever.
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I shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by
the dependence of Congress on the State for the means of carrying them into practice; that however large
the mass of powers may be, it is in fact a lifeless mass. Then, say I, in the first place, that the Confederation
is chargeable with the still greater folly of declaring certain powers in the federal government to be
absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that
if the Union is to continue, and no better government be substituted, effective powers must either be
granted to, or assumed by, the existing Congress; in either of which events, the contrast just stated will hold
good. But this is not all. Out of this lifeless mass has already grown an excrescent power, which tends to
realize all the dangers that can be apprehended from a defective construction of the supreme government
of the Union. It is now no longer a point of speculation and hope, that the Western territory is a mine of
vast wealth to the United States; and although it is not of such a nature as to extricate them from their
present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must
it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt,
and to furnish, for a certain period, liberal tributes to the federal treasury. A very large proportion of this
fund has been already surrendered by individual States; and it may with reason be expected that the
remaining States will not persist in withholding similar proofs of their equity and generosity. We may
calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the United
States, will soon become a national stock. Congress have assumed the administration of this stock. They
have begun to render it productive. Congress have undertaken to do more: they have proceeded to form
new States, to erect temporary governments, to appoint officers for them, and to prescribe the conditions
on which such States shall be admitted into the Confederacy. All this has been done; and done without the
least color of constitutional authority. Yet no blame has been whispered; no alarm has been sounded. A
GREAT and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of men, who can
RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to their support for an INDEFINITE
PERIOD OF TIME. And yet there are men, who have not only been silent spectators of this prospect, but
who are advocates for the system which exhibits it; and, at the same time, urge against the new system the
objections which we have heard. Would they not act with more consistency, in urging the establishment of
the latter, as no less necessary to guard the Union against the future powers and resources of a body
constructed like the existing Congress, than to save it from the dangers threatened by the present
impotency of that Assembly?
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I mean not, by any thing here said, to throw censure on the measures which have been pursued by
Congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case,
imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof
of the danger resulting from a government which does not possess regular powers commensurate to its
objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed.
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Page 225
FED39: THE CONFORMITY OF THE PLAN TO REPUBLICAN PRINCIPLES
1
For the Independent Journal. Wednesday, January 16, 1788
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MADISON
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THE last paper having concluded the observations which were meant to introduce a candid survey of the
plan of government reported by the convention, we now proceed to the execution of that part of our
undertaking.
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The first question that offers itself is, whether the general form and aspect of the government be strictly
republican. It is evident that no other form would be reconcilable with the genius of the people of America;
with the fundamental principles of the Revolution; or with that honorable determination which animates
every votary of freedom, to rest all our political experiments on the capacity of mankind for selfgovernment. If the plan of the convention, therefore, be found to depart from the republican character, its
advocates must abandon it as no longer defensible.
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What, then, are the distinctive characters of the republican form? Were an answer to this question to be
sought, not by recurring to principles, but in the application of the term by political writers, to the
constitution of different States, no satisfactory one would ever be found. Holland, in which no particle of
the supreme authority is derived from the people, has passed almost universally under the denomination of
a republic. The same title has been bestowed on Venice, where absolute power over the great body of the
people is exercised, in the most absolute manner, by a small body of hereditary nobles. Poland, which is a
mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation.
The government of England, which has one republican branch only, combined with an hereditary
aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics.
These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme
inaccuracy with which the term has been used in political disquisitions.
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If we resort for a criterion to the different principles on which different forms of government are
established, we may define a republic to be, or at least may bestow that name on, a government which
derives all its powers directly or indirectly from the great body of the people, and is administered by
persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL
to such a government that it be derived from the great body of the society, not from an inconsiderable
proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by
a delegation of their powers, might aspire to the rank of republicans, and claim for their government the
honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be
appointed, either directly or indirectly, by the people; and that they hold their appointments by either of
the tenures just specified; otherwise every government in the United States, as well as every other popular
government that has been or can be well organized or well executed, would be degraded from the
republican character. According to the constitution of every State in the Union, some or other of the
officers of government are appointed indirectly only by the people. According to most of them, the chief
magistrate himself is so appointed. And according to one, this mode of appointment is extended to one of
the co-ordinate branches of the legislature. According to all the constitutions, also, the tenure of the
highest offices is extended to a definite period, and in many instances, both within the legislative and
executive departments, to a period of years. According to the provisions of most of the constitutions, again,
as well as according to the most respectable and received opinions on the subject, the members of the
judiciary department are to retain their offices by the firm tenure of good behavior.
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On comparing the Constitution planned by the convention with the standard here fixed, we perceive at
once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one
branch at least of all the State legislatures, is elected immediately by the great body of the people. The
Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the
people. The President is indirectly derived from the choice of the people, according to the example in most
of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the
choice, though a remote choice, of the people themselves, the duration of the appointments is equally
conformable to the republican standard, and to the model of State constitutions The House of
Representatives is periodically elective, as in all the States; and for the period of two years, as in the State
of South Carolina. The Senate is elective, for the period of six years; which is but one year more than the
period of the Senate of Maryland, and but two more than that of the Senates of New York and Virginia. The
President is to continue in office for the period of four years; as in New York and Delaware, the chief
magistrate is elected for three years, and in South Carolina for two years. In the other States the election is
annual. In several of the States, however, no constitutional provision is made for the impeachment of the
chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the
United States is impeachable at any time during his continuance in office. The tenure by which the judges
are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the
ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and
the example of the State constitutions.
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Could any further proof be required of the republican complexion of this system, the most decisive one
might be found in its absolute prohibition of titles of nobility, both under the federal and the State
governments; and in its express guaranty of the republican form to each of the latter.
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"But it was not sufficient," say the adversaries of the proposed Constitution, "for the convention to adhere
to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards
the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL
government, which regards the Union as a CONSOLIDATION of the States." And it is asked by what authority
this bold and radical innovation was undertaken? The handle which has been made of this objection
requires that it should be examined with some precision.
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Without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary
to a just estimate of its force, first, to ascertain the real character of the government in question; secondly,
to inquire how far the convention were authorized to propose such a government; and thirdly, how far the
duty they owed to their country could supply any defect of regular authority.
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First. In order to ascertain the real character of the government, it may be considered in relation to the
foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn;
to the operation of those powers; to the extent of them; and to the authority by which future changes in
the government are to be introduced.
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On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the
assent and ratification of the people of America, given by deputies elected for the special purpose; but, on
the other, that this assent and ratification is to be given by the people, not as individuals composing one
entire nation, but as composing the distinct and independent States to which they respectively belong. It is
to be the assent and ratification of the several States, derived from the supreme authority in each State, the
authority of the people themselves. The act, therefore, establishing the Constitution, will not be a
NATIONAL, but a FEDERAL act.
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That it will be a federal and not a national act, as these terms are understood by the objectors; the act of
the people, as forming so many independent States, not as forming one aggregate nation, is obvious from
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this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the
Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several
States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed,
not by the legislative authority, but by that of the people themselves. Were the people regarded in this
transaction as forming one nation, the will of the majority of the whole people of the United States would
bind the minority, in the same manner as the majority in each State must bind the minority; and the will of
the majority must be determined either by a comparison of the individual votes, or by considering the will
of the majority of the States as evidence of the will of a majority of the people of the United States. Neither
of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign
body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the
new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.
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The next relation is, to the sources from which the ordinary powers of government are to be derived. The
House of Representatives will derive its powers from the people of America; and the people will be
represented in the same proportion, and on the same principle, as they are in the legislature of a particular
State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its
powers from the States, as political and coequal societies; and these will be represented on the principle of
equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not
NATIONAL. The executive power will be derived from a very compound source. The immediate election of
the President is to be made by the States in their political characters. The votes allotted to them are in a
compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members
of the same society. The eventual election, again, is to be made by that branch of the legislature which
consists of the national representatives; but in this particular act they are to be thrown into the form of
individual delegations, from so many distinct and coequal bodies politic. From this aspect of the
government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL
features.
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The difference between a federal and national government, as it relates to the OPERATION OF THE
GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies
composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing
the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the
NATIONAL, not the FEDERAL character; though perhaps not so completely as has been understood. In
several cases, and particularly in the trial of controversies to which States may be parties, they must be
viewed and proceeded against in their collective and political capacities only. So far the national
countenance of the government on this side seems to be disfigured by a few federal features. But this
blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their
individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this
relation, a NATIONAL government.
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But if the government be national with regard to the OPERATION of its powers, it changes its aspect again
when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves
in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and
things, so far as they are objects of lawful government. Among a people consolidated into one nation, this
supremacy is completely vested in the national legislature. Among communities united for particular
purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all
local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at
pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the
supremacy, no more subject, within their respective spheres, to the general authority, than the general
authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot
be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to
the several States a residuary and inviolable sovereignty over all other objects. It is true that in
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controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to
decide, is to be established under the general government. But this does not change the principle of the
case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and
most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to
prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under
the general rather than under the local governments, or, to speak more properly, that it could be safely
established under the first alone, is a position not likely to be combated.
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If we try the Constitution by its last relation to the authority by which amendments are to be made, we find
it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate
authority would reside in the MAJORITY of the people of the Union; and this authority would be competent
at all times, like that of a majority of every national society, to alter or abolish its established government.
Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to
every alteration that would be binding on all. The mode provided by the plan of the convention is not
founded on either of these principles. In requiring more than a majority, and principles. In requiring more
than a majority, and particularly in computing the proportion by STATES, not by CITIZENS, it departs from
the NATIONAL and advances towards the FEDERAL character; in rendering the concurrence of less than the
whole number of States sufficient, it loses again the FEDERAL and partakes of the NATIONAL character.
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The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a
composition of both. In its foundation it is federal, not national; in the sources from which the ordinary
powers of the government are drawn, it is partly federal and partly national; in the operation of these
powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the
authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.
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FED40: ON
SUSTAINED.
THE
POWERS
OF THE
CONVENTION
TO
FORM
A
MIXED GOVERNMENT EXAMINED
AND
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For the New York Packet. Friday, January 18, 1788.
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MADISON
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THE SECOND point to be examined is, whether the convention were authorized to frame and propose this
mixed Constitution.
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The powers of the convention ought, in strictness, to be determined by an inspection of the commissions
given to the members by their respective constituents. As all of these, however, had reference, either to
the recommendation from the meeting at Annapolis, in September, 1786, or to that from Congress, in
February, 1787, it will be sufficient to recur to these particular acts.
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The act from Annapolis recommends the "appointment of commissioners to take into consideration the
situation of the United States; to devise SUCH FURTHER PROVISIONS as shall appear to them necessary to
render the Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE UNION; and to
report such an act for that purpose, to the United States in Congress assembled, as when agreed to by
them, and afterwards confirmed by the legislature of every State, will effectually provide for the same."
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The recommendatory act of Congress is in the words following: "WHEREAS, There is provision in the articles
of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the
United States, and of the legislatures of the several States; and whereas experience hath evinced, that there
are defects in the present Confederation; as a mean to remedy which, several of the States, and
PARTICULARLY THE STATE OF NEW YORK, by express instructions to their delegates in Congress, have
suggested a convention for the purposes expressed in the following resolution; and such convention
appearing to be the most probable mean of establishing in these States A FIRM NATIONAL GOVERNMENT:
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"Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next a
convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for
the sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and reporting to Congress
and the several legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall, when agreed to in
Congress, and confirmed by the States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF
GOVERNMENT AND THE PRESERVATION OF THE UNION."
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From these two acts, it appears, 1st, that the object of the convention was to establish, in these States, A
FIRM NATIONAL GOVERNMENT; 2d, that this government was to be such as would be ADEQUATE TO THE
EXIGENCIES OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes were to be
effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF CONFEDERATION, as it is expressed in the
act of Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the
recommendatory act from Annapolis; 4th, that the alterations and provisions were to be reported to
Congress, and to the States, in order to be agreed to by the former and confirmed by the latter.
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From a comparison and fair construction of these several modes of expression, is to be deduced the
authority under which the convention acted. They were to frame a NATIONAL GOVERNMENT, adequate to
the EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles of Confederation into
such form as to accomplish these purposes.
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There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one
is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to
conspire to some common end. The other is, that where the several parts cannot be made to coincide, the
less important should give way to the more important part; the means should be sacrificed to the end,
rather than the end to the means.
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Suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance
with each other; that a NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of the
convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part
of the definition ought to have been embraced, and which rejected? Which was the more important, which
the less important part? Which the end; which the means? Let the most scrupulous expositors of delegated
powers; let the most inveterate objectors against those exercised by the convention, answer these
questions. Let them declare, whether it was of most importance to the happiness of the people of America,
that the articles of Confederation should be disregarded, and an adequate government be provided, and
the Union preserved; or that an adequate government should be omitted, and the articles of Confederation
preserved. Let them declare, whether the preservation of these articles was the end, for securing which a
reform of the government was to be introduced as the means; or whether the establishment of a
government, adequate to the national happiness, was the end at which these articles themselves originally
aimed, and to which they ought, as insufficient means, to have been sacrificed.
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But is it necessary to suppose that these expressions are absolutely irreconcilable to each other; that no
ALTERATIONS or PROVISIONS in the articles of the confederation could possibly mould them into a national
and adequate government; into such a government as has been proposed by the convention?
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No stress, it is presumed, will, in this case, be laid on the TITLE; a change of that could never be deemed an
exercise of ungranted power. ALTERATIONS in the body of the instrument are expressly authorized. NEW
PROVISIONS therein are also expressly authorized. Here then is a power to change the title; to insert new
articles; to alter old ones. Must it of necessity be admitted that this power is infringed, so long as a part of
the old articles remain? Those who maintain the affirmative ought at least to mark the boundary between
authorized and usurped innovations; between that degree of change which lies within the compass of
ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a TRANSMUTATION of the
government. Will it be said that the alterations ought not to have touched the substance of the
Confederation? The States would never have appointed a convention with so much solemnity, nor
described its objects with so much latitude, if some SUBSTANTIAL reform had not been in contemplation.
Will it be said that the FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview of the
convention, and ought not to have been varied? I ask, What are these principles? Do they require that, in
the establishment of the Constitution, the States should be regarded as distinct and independent
sovereigns? They are so regarded by the Constitution proposed. Do they require that the members of the
government should derive their appointment from the legislatures, not from the people of the States? One
branch of the new government is to be appointed by these legislatures; and under the Confederation, the
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delegates to Congress MAY ALL be appointed immediately by the people, and in two States are actually so
appointed. Do they require that the powers of the government should act on the States, and not
immediately on individuals? In some instances, as has been shown, the powers of the new government will
act on the States in their collective characters. In some instances, also, those of the existing government act
immediately on individuals. In cases of capture; of piracy; of the post office; of coins, weights, and
measures; of trade with the Indians; of claims under grants of land by different States; and, above all, in the
case of trials by courts-marshal in the army and navy, by which death may be inflicted without the
intervention of a jury, or even of a civil magistrate; in all these cases the powers of the Confederation
operate immediately on the persons and interests of individual citizens. Do these fundamental principles
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require, particularly, that no tax should be levied without the intermediate agency of the States? The
Confederation itself authorizes a direct tax, to a certain extent, on the post office. The power of coinage has
been so construed by Congress as to levy a tribute immediately from that source also. But pretermitting
these instances, was it not an acknowledged object of the convention and the universal expectation of the
people, that the regulation of trade should be submitted to the general government in such a form as
would render it an immediate source of general revenue? Had not Congress repeatedly recommended this
measure as not inconsistent with the fundamental principles of the Confederation? Had not every State but
one; had not New York herself, so far complied with the plan of Congress as to recognize the PRINCIPLE of
the innovation? Do these principles, in fine, require that the powers of the general government should be
limited, and that, beyond this limit, the States should be left in possession of their sovereignty and
independence? We have seen that in the new government, as in the old, the general powers are limited;
and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and
independent jurisdiction.
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The truth is, that the great principles of the Constitution proposed by the convention may be considered
less as absolutely new, than as the expansion of principles which are found in the articles of Confederation.
The misfortune under the latter system has been, that these principles are so feeble and confined as to
justify all the charges of inefficiency which have been urged against it, and to require a degree of
enlargement which gives to the new system the aspect of an entire transformation of the old.
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In one particular it is admitted that the convention have departed from the tenor of their commission.
Instead of reporting a plan requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have
reported a plan which is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES
ONLY. It is worthy of remark that this objection, though the most plausible, has been the least urged in the
publications which have swarmed against the convention. The forbearance can only have proceeded from
an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or
corruption of a thirteenth; from the example of inflexible opposition given by a MAJORITY of one sixtieth of
the people of America to a measure approved and called for by the voice of twelve States, comprising fiftynine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has
felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner
waived by those who have criticised the powers of the convention, I dismiss it without further observation.
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The THIRD point to be inquired into is, how far considerations of duty arising out of the case itself could
have supplied any defect of regular authority.
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In the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor,
and by the same rules, as if they had been real and final powers for the establishment of a Constitution for
the United States. We have seen in what manner they have borne the trial even on that supposition. It is
time now to recollect that the powers were merely advisory and recommendatory; that they were so
meant by the States, and so understood by the convention; and that the latter have accordingly planned
and proposed a Constitution which is to be of no more consequence than the paper on which it is written,
unless it be stamped with the approbation of those to whom it is addressed. This reflection places the
subject in a point of view altogether different, and will enable us to judge with propriety of the course taken
by the convention.
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Let us view the ground on which the convention stood. It may be collected from their proceedings, that
they were deeply and unanimously impressed with the crisis, which had led their country almost with one
voice to make so singular and solemn an experiment for correcting the errors of a system by which this
crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as
they have proposed was absolutely necessary to effect the purposes of their appointment. It could not be
unknown to them that the hopes and expectations of the great body of citizens, throughout this great
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empire, were turned with the keenest anxiety to the event of their deliberations. They had every reason to
believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to
the liberty and prosperity of the United States. They had seen in the origin and progress of the experiment,
the alacrity with which the PROPOSITION, made by a single State (Virginia), towards a partial amendment of
the Confederation, had been attended to and promoted. They had seen the LIBERTY ASSUMED by a VERY
FEW deputies from a VERY FEW States, convened at Annapolis, of recommending a great and critical object,
wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect
by twelve out of the thirteen States. They had seen, in a variety of instances, assumptions by Congress, not
only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and
objects infinitely less urgent than those by which their conduct was to be governed. They must have
reflected, that in all great changes of established governments, forms ought to give way to substance; that
a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and
precious right of the people to "abolish or alter their governments as to them shall seem most likely to
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effect their safety and happiness," since it is impossible for the people spontaneously and universally to
move in concert towards their object; and it is therefore essential that such changes be instituted by some
INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable citizen or number
of citizens. They must have recollected that it was by this irregular and assumed privilege of proposing to
the people plans for their safety and happiness, that the States were first united against the danger with
which they were threatened by their ancient government; that committees and congresses were formed
for concentrating their efforts and defending their rights; and that CONVENTIONS were ELECTED in THE
SEVERAL STATES for establishing the constitutions under which they are now governed; nor could it have
been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen,
except in those who wished to indulge, under these masks, their secret enmity to the substance contended
for. They must have borne in mind, that as the plan to be framed and proposed was to be submitted TO
THE PEOPLE THEMSELVES, the disapprobation of this supreme authority would destroy it forever; its
approbation blot out antecedent errors and irregularities. It might even have occurred to them, that where
a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more
their recommendation of any measure whatever, not warranted by their commission, would not less excite
animadversion, than a recommendation at once of a measure fully commensurate to the national
exigencies.
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Had the convention, under all these impressions, and in the midst of all these considerations, instead of
exercising a manly confidence in their country, by whose confidence they had been so peculiarly
distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the
cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing
the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the
man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic
emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind,
by every virtuous citizen, on the conduct and character of this assembly? Or if there be a man whose
propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the
twelve States who USURPED THE POWER of sending deputies to the convention, a body utterly unknown to
their constitutions; for Congress, who recommended the appointment of this body, equally unknown to the
Confederation; and for the State of New York, in particular, which first urged and then complied with this
unauthorized interposition?
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But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the
convention were neither authorized by their commission, nor justified by circumstances in proposing a
Constitution for their country: does it follow that the Constitution ought, for that reason alone, to be
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Declaration of Independence
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rejected? If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall
we set the ignoble example of refusing such advice even when it is offered by our friends? The prudent
inquiry, in all cases, ought surely to be, not so much FROM WHOM the advice comes, as whether the advice
be GOOD.
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The sum of what has been here advanced and proved is, that the charge against the convention of
exceeding their powers, except in one instance little urged by the objectors, has no foundation to support
it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential
servants of their country, by the circumstances in which they were placed, to exercise the liberty which they
assume; and that finally, if they had violated both their powers and their obligations, in proposing a
Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and
happiness of the people of America. How far this character is due to the Constitution, is the subject under
investigation.
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PUBLIUS
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AFED40: ON THE MOTIVATIONS AND AUTHORITY OF THE FOUNDING FATHERS
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Anti-Federalist #40 is a compilation of articles. Philadelphiensis III, December 5, 1787; Patrick Henry June 227 1788; Letters of Centinel, Number III from the Independent Gazetter, November 8, 1787;
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It was a common saying among many sensible men in Great Britain and Ireland, in the time of the war, that
they doubted whether the great men of America, who had taken an active part in favor of independence,
were influenced by pure patriotism; that it was not the love of their country they had so much at heart, as
their own private, interest; that a thirst after dominion and power, and not to protect the oppressed from
the oppressor, was the great operative principle that induced these men to oppose Britain so strenuously.
This seemingly illiberal sentiment was, however, generally denied by the well-hearted and unsuspecting
friends of American liberty in Europe, who could not suppose that men would engage in so noble a cause
thro' such base motives. But alas! The truth of the sentiment is now indisputably confirmed; facts are
stubborn things, and these set the matter beyond controversy. The new constitution and the conduct of its
despotic advocates, show that these men's doubts were really well founded. Unparalleled duplicity! That
men should oppose tyranny under a pretence of patriotism, that they might themselves become the
tyrants. How does such villainy disgrace human nature! Ah, my fellow citizens, you have been strangely
deceived indeed; when the wealthy of your own country assisted you to expel the foreign tyrant, only with
a view to substitute themselves in his stead. . .
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But the members of the Federal Convention were men we been all tried in the field of action, say some;
they have fought for American liberty. Then the more to their shame be it said; curse on the villain who
protects virgin innocence only with a view that he may himself become the ravisher; so that if the assertion
were true, it only turns to their disgrace; but as it happens it is not truth, or at least only so in part. This was
a scheme taken by the despots and their sycophants to bias the public mind in favor of the constitution. For
the convention was composed of a variety of characters: ambitious men, Jesuits, tories, lawyers, etc.,
formed the majority, whose similitude to each other, consisted only in their determination to lord it over
their fellow citizens; like the rays that converging from every direction meet in a point, their sentiments and
deliberations concentered in tyranny alone; they were unanimous in forming a government that should
raise the fortunes and respectability of the well born few, and oppress the plebeians.
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PHILADELPHIENSIS
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Does our soil produce no more Washington's? Is there none who would oppose the attempt to establish a
government by force? Can we not call from the fields, the counters, the bar, and mechanics' shops, any
more Generals? Is our soil exhausted? And does any one suppose that the Americans, like the Romans, will
submit to an army merely because they have conquered a foreign enemy? . . .
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AN AMERICAN
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I revere the characters of some of the gentlemen that composed the convention at Philadelphia, yet I think
they were human, and subject to imposition and error, as well as the rest of mankind. You lost eight or ten
years of your lives and labor by the last war, and you were left at last with your debts and encumbrances on
you, and numbers of you were soon after the close of it, sued and harassed for them. Your persons have
been put into a loathsome prison, and others of you have had your property sold for taxes, and sometimes
for one tenth of its former and actual value and you now pay very grievous and heavy taxes, double and
treble what you paid before the war; and should you adopt this new government, your taxes will be great,
increased to support their . . . servants and retainers, who will be multiplied upon you to keep you in
obedience, and collect their duties, taxes, impositions, and excises. Some of you may say the rich men were
virtuous in the last war; yes, my countrymen, they had reason then to be so! Our liberty then was in dispute
with a mighty and powerful tyrant, and it was for their interest to promote and carry on the opposition, as
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long as they could stay at home and send the common people into the field to fight their battles. After the
war began, they could not with decency recede, for the sword and enemy were at the very entrance of
their gates. The case is greatly altered now; you conquered the enemy, and the rich men now think to
subdue you by their wiles and arts, or make you, or persuade you, to do it yourselves. Their aim, I perceive,
is now to destroy that liberty which you set up as a reward for the blood and treasure you expended in the
pursuit of and establishment of it. They well know that open force will not succeed at this time, and have
chosen a safer method, by offering you a plan of a new Federal Government, contrived with great art, and
shaded with obscurity, and recommended to you to adopt; which if you do, their scheme is completed, the
yoke is -fixed on your necks, and you will be undone, perhaps for ever, and your boasted liberty is but a
sound, Farewell! Be wise, be watchful, guard yourselves against the dangers that are concealed in this plan
of a new Federal Government.
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A FARMER AND PLANTER
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Make the best of this new government-say it is composed of any thing but inspiration-you ought to be
extremely cautious, watchful, jealous of your liberty; for, instead of securing your rights, you may lose them
forever. If a wrong step be now made, the republic may be lost forever. If this new government will not
come up to the expectation of the people, and they shall be disappointed, their liberty will be lost, and
tyranny must and will arise. I repeat it again, and I beg gentlemen to consider, that a wrong step, made
now, will plunge us into misery, and our republic will be lost. It will be necessary for this [Virginia Ratifying]
Convention to have a faithful historical detail of the facts that preceded the session of the federal
Convention, and the reasons that actuated its members in proposing an entire alteration of government,
and to demonstrate the dangers that awaited us. If they were of such awful magnitude as to warrant a
proposal so extremely perilous as this, I must assert, that this Convention has an absolute right to a
thorough discovery of every circumstance relative to this great event. And here I would make this inquiry of
those worthy characters who composed a part of the late federal Convention. I am sure they were fully
impressed with the necessity of forming a great consolidated government, instead of a confederation. That
this is a consolidated government is demonstrably clear; and the danger of such a government is, to my
mind, very striking. I have the highest veneration for those gentlemen; but, sir, give me leave to demand:
What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the
public welfare, leads me to ask: Who authorized them to speak the language of, We, the people, instead of,
We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents
of this compact, it must be one great, consolidated, national government, of the people of all the states. I
have the highest respect for those gentlemen who formed the Convention, and, were some of them not
here, I would express some testimonial of esteem for them. America had, on a former occasion, put the
utmost confidence in them-a confidence which was well placed; and I am sure, sir, I would give up any thing
to them; I would cheerfully confide in them as my representatives. But, sir, on this great occasion, I would
demand the cause of their conduct. Even from that illustrious man who saved us by his valor, I would have a
reason for his conduct. . . . That they exceeded their power is perfectly clear. . . . The federal Convention
ought to have amended the old system; for this purpose they were solely delegated; the object of their
mission extended to no other consideration. You must, therefore, forgive the solicitation of one unworthy
member to know what danger could have arisen under the present Confederation, and what are the causes
of this proposal to change our government.
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What then are we to think of the motives and designs of those men who are urging the implicit and
immediate adoption of the proposed government; are they fearful, that if you exercise your good sense and
discernment, you will discover the masqued aristocracy, that they are attempting to smuggle upon you
under the suspicious garb of republicanism? When we find that the principal agents in this business are the
very men who fabricated the form of government, it certainly ought to be conclusive evidence of their
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invidious design to deprive us of our liberties. The circumstances attending this matter, are such as should
in a peculiar manner excite your suspicion; it might not be useless to take a review of some of them.
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In many of the states, particularly in this [Pennsylvania] and the northern states, there are aristocratic
juntos of the well-horn few, who have been zealously endeavoring since the establishment of their
constitutions, to humble that offensive upstart, equal liberty; but all their efforts were unavailing, the illbred churl obstinately kept his assumed station. . . .
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A comparison of the authority under which the convention acted, and their form of government, will show
that they have despised their delegated power, and assumed sovereignty; that they have entirely
annihilated the old confederation, and the particular governments of the several States, and instead
thereof have established one general government that is to pervade the union; constituted on the most
unequal principles, destitute of accountability to its constituents, and as despotic in its nature, as the
Venetian aristocracy; a government that will give full scope to the magnificent designs of the well-horn, a
government where tyranny may glut its vengeance on the low-born, unchecked by an odious bill of rights. .
. ; and yet as a blind upon the understandings of the people, they have continued the forms of the
particular governments, and termed the whole a confederation of the United States, pursuant to the
sentiments of that profound, but corrupt politician Machiavel, who advises any one who would change the
constitution of a state to keep as much as possible to the old forms; for then the people seeing the same
officers, the same formalities, courts of justice and other outward appearances, are insensible of the
alteration, and believe themselves in possession of their old government. Thus Caesar, when he seized the
Roman liberties, caused himself to be chosen dictator (which was an ancient office), continued the senate,
the consuls, the tribunes, the censors, and all other offices and forms of the commonwealth; and yet
changed Rome from the most free, to the most tyrannical government in the world. . . .
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The late convention, in the majesty of its assumed omnipotence, have not even condescended to submit
the plan of the new government to the confederation of the people, the true source of authority; but have
called upon them by their several constitutions, to 'assent to and ratify' in toto, what they have been
pleased to decree; just as the grand monarch of France requires the parliament of Paris to register his edicts
without revision or alteration, which is necessary previous to their execution. . . .
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If you are in doubt about the nature and principles of the proposed government, view the conduct of its
authors and patrons: that affords the best explanation, the most striking comment.
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The evil genius of darkness presided at its birth, it came forth under the veil of mystery, its true features
being carefully concealed, and every deceptive art has been and is practicing to have this spurious brat
received as the genuine offspring of heaven-born liberty. So fearful are its patrons that you should discern
the imposition, that they have hurried on its adoption, with the greatest precipitation. . .
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After so recent a triumph over British despots, after such torrents of blood and treasure have been spent,
after involving ourselves in the distresses of an arduous war, and incurring such a debt for the express
purpose of asserting the rights of humanity; it is truly astonishing that a set of men among ourselves should
have the effrontery to attempt the destruction of our liberties. But in this enlightened age to hope to dupe
the people by the arts they are practicing is still more extraordinary. . .
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The advocates of this plan have artfully attempted to veil over the true nature and principles of it with the
names of those respectable characters that by consummate cunning and address they have prevailed upon
to sign it; and what ought to convince the people of the deception and excite their apprehensions, is that
with every advantage which education, the science of government and of law, the knowledge of history and
superior talents and endowments, furnish the authors and advocates of this plan with, they have from its
publication exerted all their power and influence to prevent all discussion of the subject, and when this
could not be prevented they have constantly avoided the ground of argument and recurred to declamation,
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sophistry and personal abuse, but principally relied upon the magic of names. . . . Emboldened by the
sanction of the august name of a Washington, that they have prostituted to their purpose, they have
presumed to overleap the usual gradations to absolute power, and have attempted to seize at once upon
the supremacy of dominion.
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. . . Another thing they tell us, that the constitution must be good, from the characters which composed the
Convention that framed it. It is graced with the names of a Washington and a Franklin. Illustrious names, we
know-worthy characters in civil society. Yet we cannot suppose them to be infallible guides; neither yet that
a man must necessarily incur guilt to himself merely by dissenting from them in opinion. We cannot think
the noble general has the same ideas with ourselves, with regard to the rules of right and wrong. We
cannot think he acts a very consistent part, or did through the whole of the contest with Great Britain.
Notwithstanding he wielded the sword in defense of American liberty, yet at the same time was, and is to
this day, living upon the labors of several hundreds of miserable Africans, as free born as himself; and some
of them very likely, descended from parents who, in point of property and dignity in their own country,
might cope with any man in America. We do not conceive we are to be overborne by the weight of any
names, however revered. "ALL MEN ARE BORN FREE AND EQUAL"......
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AFED39: APPEARANCE AND REALITY-THE FORM IS FEDERAL; THE EFFECT IS NATIONAL
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Gazetteer on April 15 and 22, 1788
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. . . . The Freeman, in his second number, after mentioning in a very delusory manner diverse powers which
remain with the states, says we shall find many other instances under the constitution which require or
imply the existence or continuance of the sovereignty and severalty of the states. He, as well as all the
advocates of the new system, take as their strong ground the election of senators by the state legislatures,
and the special representation of the states in the federal senate, to prove that internal sovereignty still
remains with the States. Therefore they say that the new system is so far from annihilating the state
governments, that it secures them, that it cannot exist without them, that the existence of the one is
essential to the existence of the other. It is true that this particular partakes strongly of that mystery which
is characteristic of the system itself. But if I demonstrate that this particular, so far from implying the
continuance of the state sovereignties, proves in the clearest manner the want of it, I hope the other
particular powers will not be necessary to dwell upon.
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The State legislatures do not choose senators by legislative or sovereign authority, but by a power of
ministerial agency as mere electors or boards of appointment. They have no power to direct the senators
how or what duties they shall perform; they have neither power to censure the senators, nor to supersede
them for misconduct. It is not the power of choosing to office merely that designates sovereignty, or else
corporations who appoint their own officers and make their own by-laws, or the heads of department who
choose the officers under them, such as commanders of armies, etc., may be called sovereigns, because
they can name men to office whom they cannot dismiss therefrom. The exercise of sovereignty does not
consist in choosing masters, such as the senators would be, who, when chosen, would be beyond control,
but in the power of dismissing, impeaching, or the like, those to whom authority is delegated. The power of
instructing or superseding of delegates to Congress under the existing confederation has never been
complained of, although the necessary rotation of members of Congress has often been censured for
restraining the state sovereignties too much in the objects of their choice. As well may the electors who are
to vote for the president under the new constitution, be said to be vested with the sovereignty, as the State
legislatures in the act of choosing senators. The senators are not even dependent on the States for their
wages, but in conjunction with the federal representatives establish their own wages. The senators do not
vote by States, but as individuals. The representatives also vote as individuals, representing people in a
consolidated or national government; they judge upon their own elections, and, with the Senate, have the
power of regulating elections in time, place and manner, which is in other words to say, that they have the
power of elections absolutely vested in them.
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That the State governments have certain ministerial and convenient powers continued to them is not
denied, and in the exercise of which they may support, but cannot control the general government, nor
protect their own citizens from the exertion of civil or military tyranny-and this ministerial power will
continue with the States as long as two- thirds of Congress shall think their agency necessary. But even this
will be no longer than two-thirds of Congress shall think proper to propose, and use the influence of which
they would be so largely possessed to remove it.
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But these powers of which the Freeman gives us such a profuse detail, and in describing which be repeats
the same powers with only varying the terms, such as the powers of officering and training the militia,
appointing State officers, and governing in a number of internal cases, do not any of them separately, nor
all taken together, amount to independent sovereignty. They are powers of mere ministerial agency, which
may, and in many nations of Europe are or have been vested, as before observed, in heads of departments,
hereditary vassals of the crown, or in corporations; but not that kind of independent sovereignty which can
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constitute a member of a federal republic, which can enable a State to exist within itself if the general
government should cease.
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I have often wondered how any writer of sense could have the confidence to avow, or could suppose the
people to be ignorant enough to believe that, when a State is deprived of the power not only of standing
armies (this the members of a confederacy ought to be), but of commanding its own militia, regulating its
elections, directing or superseding its representatives, or paying them their wages; who is, moreover,
deprived of the command of any property, I mean source of revenue or taxation, or what amounts to the
same thing, who may enact laws for raising revenue, but who may have these laws rendered nugatory, and
the execution thereof superseded by the laws of Congress. [sic] This is not a strained construction, but the
natural operation of the powers of Congress under the new constitution; for every object of revenues,
every source of taxation, is vested in the general government. Even the power of making inspection laws,
which, for obvious conveniency, is left with the several States, will be unproductive of the smallest revenue
to the State governments; for, if any should arise, it is to be paid over to the officers of Congress. Besides,
the words "to make all laws necessary and proper for carrying into execution the foregoing powers," etc.,
give, without doubt, the power of repelling or forbidding the execution of any tax law whatever, that may
interfere with or impede the exercise of the general taxing power, and it would not be possible that two
taxing powers should be exercised on the same sources of taxation without interfering with each other.
May not the exercise of this power of Congress, when they think proper, operate not only to destroy those
ministerial powers which are left with the States, but even the very forms? May they not forbid the state
legislatures to levy a shilling to pay themselves, or those whom they employ, days' wages?
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The State governments may contract for making roads (except post-roads), erecting bridges, cutting canals,
or any other object of public importance; but when the contract is performed or the work done, may not
Congress constitutionally prevent the payment? Certainly; they may do all this and much more, and no man
would have a right to charge them with breaking the law of their appointment. It is an established maxim,
that wherever the whole power of the revenue or taxation is vested, there virtually is the whole effective,
influential, sovereign power, let the forms be what they may. By this armies are procured, by this every
other controlling guard is defeated. Every balance or check in government is only so far effective as it has a
control over the revenue.
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The State governments are not only destitute of all sovereign command of, or control over, the revenue or
any part of it, but they are divested of the power of commanding or prescribing the duties, wages, or
punishments of their own militia, or of protecting their life, property or characters from the rigors of martial
law. The power of making treason laws is both a power and an important defense of sovereignty; it is
relative to and inseparable from it; to convince the States that they are consolidated into one national
government, this power is wholly to be assumed by the general government. All the prerogatives, all the
essential characteristics of sovereignty, both of the internal and external kind, are vested in the general
government, and consequently the several States would not be possessed of any essential power or
effective guard of sovereignty. Thus I apprehend, it is evident that the consolidation of the States into one
national government (in contra- distinction from a confederacy) would be the necessary consequence of
the establishment of the new constitution, and the intention of its framers-and that consequently the State
sovereignties would be eventually annihilated, though the forms may long remain as expensive and
burdensome remembrances of what they were in the days when (although laboring under many
disadvantages) they emancipated this country from foreign tyranny, humbled the pride and tarnished the
glory of royalty, and erected a triumphant standard to liberty and independence.
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FARMER
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POWERS OF FEDERAL GOVERNMENT
FED41: GENERAL VIEW OF THE POWERS CONFERRED BY THE CONSTITUTION
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For the Independent Journal. Saturday, January 19, 1788
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MADISON
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THE Constitution proposed by the convention may be considered under two general points of view. The
FIRST relates to the sum or quantity of power which it vests in the government, including the restraints
imposed on the States. The SECOND, to the particular structure of the government, and the distribution of
this power among its several branches.
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Under the FIRST view of the subject, two important questions arise: 1. Whether any part of the powers
transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them
be dangerous to the portion of jurisdiction left in the several States?
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Is the aggregate power of the general government greater than ought to have been vested in it? This is the
FIRST question.
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It cannot have escaped those who have attended with candor to the arguments employed against the
extensive powers of the government, that the authors of them have very little considered how far these
powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the
inconveniences which must be unavoidably blended with all political advantages; and on the possible
abuses which must be incident to every power or trust, of which a beneficial use can be made. This method
of handling the subject cannot impose on the good sense of the people of America. It may display the
subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the
passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people
will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice
must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in
every political institution, a power to advance the public happiness involves a discretion which may be
misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point
first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of
an affirmative decision, to guard as effectually as possible against a perversion of the power to the public
detriment.
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That we may form a correct judgment on this subject, it will be proper to review the several powers
conferred on the government of the Union; and that this may be the more conveniently done they may be
reduced into different classes as they relate to the following different objects: 1. Security against foreign
danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper
intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States
from certain injurious acts; 6. Provisions for giving due efficacy to all these powers.
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The powers falling within the FIRST class are those of declaring war and granting letters of marque; of
providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money.
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Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential
object of the American Union. The powers requisite for attaining it must be effectually confided to the
federal councils.
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Is the power of declaring war necessary? No man will answer this question in the negative. It would be
superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this
power in the most ample form.
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Is the power of raising armies and equipping fleets necessary? This is involved in the foregoing power. It is
involved in the power of self-defense.
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But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of
maintaining both in PEACE, as well as in WAR?
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The answer to these questions has been too far anticipated in another place to admit an extensive
discussion of them in this place. The answer indeed seems to be so obvious and conclusive as scarcely to
justify such a discussion in any place. With what color of propriety could the force necessary for defense be
limited by those who cannot limit the force of offense? If a federal Constitution could chain the ambition or
set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its
own government, and set bounds to the exertions for its own safety.
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How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like
manner, the preparations and establishments of every hostile nation? The means of security can only be
regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and
by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse
than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of
which is a germ of unnecessary and multiplied repetitions. If one nation maintains constantly a disciplined
army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within
the reach of its enterprises to take corresponding precautions. The fifteenth century was the unhappy
epoch of military establishments in the time of peace. They were introduced by Charles VII. of France. All
Europe has followed, or been forced into, the example. Had the example not been followed by other
nations, all Europe must long ago have worn the chains of a universal monarch. Were every nation except
France now to disband its peace establishments, the same event might follow. The veteran legions of Rome
were an overmatch for the undisciplined valor of all other nations and rendered her the mistress of the
world.
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Not the less true is it, that the liberties of Rome proved the final victim to her military triumphs; and that
the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military
establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary,
provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be
fatal. On any scale it is an object of laudable circumspection and precaution. A wise nation will combine all
these considerations; and, whilst it does not rashly preclude itself from any resource which may become
essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of
resorting to one which may be inauspicious to its liberties.
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The clearest marks of this prudence are stamped on the proposed Constitution. The Union itself, which it
cements and secures, destroys every pretext for a military establishment which could be dangerous.
America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to
foreign ambition than America disunited, with a hundred thousand veterans ready for combat. It was
remarked, on a former occasion, that the want of this pretext had saved the liberties of one nation in
Europe. Being rendered by her insular situation and her maritime resources impregnable to the armies of
her neighbors, the rulers of Great Britain have never been able, by real or artificial dangers, to cheat the
public into an extensive peace establishment. The distance of the United States from the powerful nations
of the world gives them the same happy security. A dangerous establishment can never be necessary or
plausible, so long as they continue a united people. But let it never, for a moment, be forgotten that they
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are indebted for this advantage to the Union alone. The moment of its dissolution will be the date of a new
order of things. The fears of the weaker, or the ambition of the stronger States, or Confederacies, will set
the same example in the New, as Charles VII. did in the Old World. The example will be followed here from
the same motives which produced universal imitation there. Instead of deriving from our situation the
precious advantage which Great Britain has derived from hers, the face of America will be but a copy of that
of the continent of Europe. It will present liberty everywhere crushed between standing armies and
perpetual taxes. The fortunes of disunited America will be even more disastrous than those of Europe. The
sources of evil in the latter are confined to her own limits. No superior powers of another quarter of the
globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments
of foreign ambition, jealousy, and revenge. In America the miseries springing from her internal jealousies,
contentions, and wars, would form a part only of her lot. A plentiful addition of evils would have their
source in that relation in which Europe stands to this quarter of the earth, and which no other quarter of
the earth bears to Europe.
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This picture of the consequences of disunion cannot be too highly colored, or too often exhibited. Every
man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever
before his eyes, that he may cherish in his heart a due attachment to the Union of America, and be able to
set a due value on the means of preserving it.
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Next to the effectual establishment of the Union, the best possible precaution against danger from standing
armies is a limitation of the term for which revenue may be appropriated to their support. This precaution
the Constitution has prudently added. I will not repeat here the observations which I flatter myself have
placed this subject in a just and satisfactory light. But it may not be improper to take notice of an argument
against this part of the Constitution, which has been drawn from the policy and practice of Great Britain. It
is said that the continuance of an army in that kingdom requires an annual vote of the legislature; whereas
the American Constitution has lengthened this critical period to two years. This is the form in which the
comparison is usually stated to the public: but is it a just form? Is it a fair comparison? Does the British
Constitution restrain the parliamentary discretion to one year? Does the American impose on the Congress
appropriations for two years? On the contrary, it cannot be unknown to the authors of the fallacy
themselves, that the British Constitution fixes no limit whatever to the discretion of the legislature, and that
the American ties down the legislature to two years, as the longest admissible term.
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Had the argument from the British example been truly stated, it would have stood thus: The term for which
supplies may be appropriated to the army establishment, though unlimited by the British Constitution, has
nevertheless, in practice, been limited by parliamentary discretion to a single year. Now, if in Great Britain,
where the House of Commons is elected for seven years; where so great a proportion of the members are
elected by so small a proportion of the people; where the electors are so corrupted by the representatives,
and the representatives so corrupted by the Crown, the representative body can possess a power to make
appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term
beyond a single year, ought not suspicion herself to blush, in pretending that the representatives of the
United States, elected FREELY by the WHOLE BODY of the people, every SECOND YEAR, cannot be safely
intrusted with the discretion over such appropriations, expressly limited to the short period of TWO YEARS?
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A bad cause seldom fails to betray itself. Of this truth, the management of the opposition to the federal
government is an unvaried exemplification. But among all the blunders which have been committed, none
is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of
standing armies. The attempt has awakened fully the public attention to that important subject; and has led
to investigations which must terminate in a thorough and universal conviction, not only that the
constitution has provided the most effectual guards against danger from that quarter, but that nothing
short of a Constitution fully adequate to the national defense and the preservation of the Union, can save
America from as many standing armies as it may be split into States or Confederacies, and from such a
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progressive augmentation, of these establishments in each, as will render them as burdensome to the
properties and ominous to the liberties of the people, as any establishment that can become necessary,
under a united and efficient government, must be tolerable to the former and safe to the latter.
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The palpable necessity of the power to provide and maintain a navy has protected that part of the
Constitution against a spirit of censure, which has spared few other parts. It must, indeed, be numbered
among the greatest blessings of America, that as her Union will be the only source of her maritime strength,
so this will be a principal source of her security against danger from abroad. In this respect our situation
bears another likeness to the insular advantage of Great Britain. The batteries most capable of repelling
foreign enterprises on our safety, are happily such as can never be turned by a perfidious government
against our liberties.
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The inhabitants of the Atlantic frontier are all of them deeply interested in this provision for naval
protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has
remained safe against the predatory spirit of licentious adventurers; if their maritime towns have not yet
been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of
daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the
existing government for the protection of those from whom it claims allegiance, but to causes that are
fugitive and fallacious. If we except perhaps Virginia and Maryland, which are peculiarly vulnerable on their
eastern frontiers, no part of the Union ought to feel more anxiety on this subject than New York. Her
seacoast is extensive. A very important district of the State is an island. The State itself is penetrated by a
large navigable river for more than fifty leagues. The great emporium of its commerce, the great reservoir
of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage for
ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of
pirates and barbarians. Should a war be the result of the precarious situation of European affairs, and all
the unruly passions attending it be let loose on the ocean, our escape from insults and depredations, not
only on that element, but every part of the other bordering on it, will be truly miraculous. In the present
condition of America, the States more immediately exposed to these calamities have nothing to hope from
the phantom of a general government which now exists; and if their single resources were equal to the task
of fortifying themselves against the danger, the object to be protected would be almost consumed by the
means of protecting them.
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The power of regulating and calling forth the militia has been already sufficiently vindicated and explained.
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The power of levying and borrowing money, being the sinew of that which is to be exerted in the national
defense, is properly thrown into the same class with it. This power, also, has been examined already with
much attention, and has, I trust, been clearly shown to be necessary, both in the extent and form given to it
by the Constitution. I will address one additional reflection only to those who contend that the power ought
to have been restrained to external—taxation by which they mean, taxes on articles imported from other
countries. It cannot be doubted that this will always be a valuable source of revenue; that for a
considerable time it must be a principal source; that at this moment it is an essential one. But we may form
very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue
drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports;
and that these variations do not correspond with the progress of population, which must be the general
measure of the public wants. As long as agriculture continues the sole field of labor, the importation of
manufactures must increase as the consumers multiply. As soon as domestic manufactures are begun by
the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people
increase. In a more remote stage, the imports may consist in a considerable part of raw materials, which
will be wrought into articles for exportation, and will, therefore, require rather the encouragement of
bounties, than to be loaded with discouraging duties. A system of government, meant for duration, ought
to contemplate these revolutions, and be able to accommodate itself to them.
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Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack
against the Constitution, on the language in which it is defined. It has been urged and echoed, that the
power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common
defense and general welfare of the United States," amounts to an unlimited commission to exercise every
power which may be alleged to be necessary for the common defense or general welfare. No stronger
proof could be given of the distress under which these writers labor for objections, than their stooping to
such a misconstruction.
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Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than
the general expressions just cited, the authors of the objection might have had some color for it; though it
would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all
possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course
of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money
for the general welfare."
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But what color can the objection have, when a specification of the objects alluded to by these general terms
immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of
the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall
one part of the same sentence be excluded altogether from a share in the meaning; and shall the more
doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be
denied any signification whatsoever? For what purpose could the enumeration of particular powers be
inserted, if these and all others were meant to be included in the preceding general power? Nothing is
more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital
of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general
meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are
reduced to the dilemma of charging either on the authors of the objection or on the authors of the
Constitution, we must take the liberty of supposing, had not its origin with the latter.
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The objection here is the more extraordinary, as it appears that the language used by the convention is a
copy from the articles of Confederation. The objects of the Union among the States, as described in article
third, are "their common defense, security of their liberties, and mutual and general welfare." The terms of
article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for
the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed
out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these
articles by the rules which would justify the construction put on the new Constitution, and they vest in the
existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that
assembly, if, attaching themselves to these general expressions, and disregarding the specifications which
ascertain and limit their import, they had exercised an unlimited power of providing for the common
defense and general welfare? I appeal to the objectors themselves, whether they would in that case have
employed the same reasoning in justification of Congress as they now make use of against the convention.
How difficult it is for error to escape its own condemnation!
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FED42: THE POWERS CONFERRED BY THE CONSTITUTION FURTHER CONSIDERED
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MADISON
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THE SECOND class of powers, lodged in the general government, consists of those which regulate the
intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public
ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses
against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year 1808,
the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to
such importations.
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This class of powers forms an obvious and essential branch of the federal administration. If we are to be
one nation in any respect, it clearly ought to be in respect to other nations.
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The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of
them are comprised in the articles of Confederation, with this difference only, that the former is
disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially
frustrated by regulations of the States; and that a power of appointing and receiving "other public ministers
and consuls," is expressly and very properly added to the former provision concerning ambassadors. The
term ambassador, if taken strictly, as seems to be required by the second of the articles of Confederation,
comprehends the highest grade only of public ministers, and excludes the grades which the United States
will be most likely to prefer, where foreign embassies may be necessary. And under no latitude of
construction will the term comprehend consuls. Yet it has been found expedient, and has been the practice
of Congress, to employ the inferior grades of public ministers, and to send and receive consuls.
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It is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose
functions are connected with commerce, the admission of foreign consuls may fall within the power of
making commercial treaties; and that where no such treaties exist, the mission of American consuls into
foreign countries may PERHAPS be covered under the authority, given by the ninth article of the
Confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the
United States. But the admission of consuls into the United States, where no previous treaty has stipulated
it, seems to have been nowhere provided for. A supply of the omission is one of the lesser instances in
which the convention have improved on the model before them. But the most minute provisions become
important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations
of power. A list of the cases in which Congress have been betrayed, or forced by the defects of the
Confederation, into violations of their chartered authorities, would not a little surprise those who have paid
no attention to the subject; and would be no inconsiderable argument in favor of the new Constitution,
which seems to have provided no less studiously for the lesser, than the more obvious and striking defects
of the old.
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The power to define and punish piracies and felonies committed on the high seas, and offenses against the
law of nations, belongs with equal propriety to the general government, and is a still greater improvement
on the articles of Confederation. These articles contain no provision for the case of offenses against the law
of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy
with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no
further than to the establishment of courts for the trial of these offenses. The definition of piracies might,
perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is
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found in most municipal codes. A definition of felonies on the high seas is evidently requisite. Felony is a
term of loose signification, even in the common law of England; and of various import in the statute law of
that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a
standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of
the term, as defined in the codes of the several States, would be as impracticable as the former would be a
dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in each
with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of
defining felonies in this case was in every respect necessary and proper.
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The regulation of foreign commerce, having fallen within several views which have been taken of this
subject, has been too fully discussed to need additional proofs here of its being properly submitted to the
federal administration.
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It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been
postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is
not difficult to account, either for this restriction on the general government, or for the manner in which
the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a
period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly
upbraided the barbarism of modern policy; that within that period, it will receive a considerable
discouragement from the federal government, and may be totally abolished, by a concurrence of the few
States which continue the unnatural traffic, in the prohibitory example which has been given by so great a
majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them
of being redeemed from the oppressions of their European brethren!
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Attempts have been made to pervert this clause into an objection against the Constitution, by representing
it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary
and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to
give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have
thought fit to conduct their opposition to the proposed government.
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The powers included in the THIRD class are those which provide for the harmony and proper intercourse
among the States.
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Under this head might be included the particular restraints imposed on the authority of the States, and
certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will
be particularly examined when we arrive at the structure and organization of the government. I shall
confine myself to a cursory review of the remaining powers comprehended under this third description, to
wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the
value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and
securities of the United States; to fix the standard of weights and measures; to establish a uniform rule of
naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records,
and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to
establish post offices and post roads.
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The defect of power in the existing Confederacy to regulate the commerce between its several members, is
in the number of those which have been clearly pointed out by experience. To the proofs and remarks
which former papers have brought into view on this subject, it may be added that without this
supplemental provision, the great and essential power of regulating foreign commerce would have been
incomplete and ineffectual. A very material object of this power was the relief of the States which import
and export through other States, from the improper contributions levied on them by the latter. Were these
at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out
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to load the articles of import and export, during the passage through their jurisdiction, with duties which
would fall on the makers of the latter and the consumers of the former. We may be assured by past
experience, that such a practice would be introduced by future contrivances; and both by that and a
common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably
terminate in serious interruptions of the public tranquillity. To those who do not view the question through
the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect
revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would
stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their
foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is
but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity
for immediate and immoderate gain.
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The necessity of a superintending authority over the reciprocal trade of confederated States, has been
illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each
canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an
augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls
or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it
appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in
that confederacy, has not followed the law, and has produced there the mischiefs which have been
foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that
they shall not establish imposts disadvantageous to their neighbors, without the general permission.
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The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the
articles of Confederation, which render the provision obscure and contradictory. The power is there
restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right
of any State within its own limits. What description of Indians are to be deemed members of a State, is not
yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how
the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be
regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely
incomprehensible. This is not the only case in which the articles of Confederation have inconsiderately
endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete
sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole
remain.
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All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is,
that by providing for this last case, the Constitution has supplied a material omission in the articles of
Confederation. The authority of the existing Congress is restrained to the regulation of coin STRUCK by their
own authority, or that of the respective States. It must be seen at once that the proposed uniformity in the
VALUE of the current coin might be destroyed by subjecting that of foreign coin to the different regulations
of the different States.
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The punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to
that authority which is to secure the value of both.
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The regulation of weights and measures is transferred from the articles of Confederation, and is founded on
like considerations with the preceding power of regulating coin.
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The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying
a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is declared
"that the FREE INHABITANTS of each of these States, paupers, vagabonds, and fugitives from justice,
excepted, shall be entitled to all privileges and immunities of FREE CITIZENS in the several States; and THE
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PEOPLE of each State shall, in every other, enjoy all the privileges of trade and commerce," etc. There is a
confusion of language here, which is remarkable. Why the terms FREE INHABITANTS are used in one part of
the article, FREE CITIZENS in another, and PEOPLE in another; or what was meant by superadding to "all
privileges and immunities of free citizens," "all the privileges of trade and commerce," cannot easily be
determined. It seems to be a construction scarcely avoidable, however, that those who come under the
denomination of FREE INHABITANTS of a State, although not citizens of such State, are entitled, in every
other State, to all the privileges of FREE CITIZENS of the latter; that is, to greater privileges than they may be
entitled to in their own State: so that it may be in the power of a particular State, or rather every State is
laid under a necessity, not only to confer the rights of citizenship in other States upon any whom it may
admit to such rights within itself, but upon any whom it may allow to become inhabitants within its
jurisdiction. But were an exposition of the term "inhabitants" to be admitted which would confine the
stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper
power would still be retained by each State, of naturalizing aliens in every other State. In one State,
residence for a short term confirms all the rights of citizenship: in another, qualifications of greater
importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by
previous residence only in the former, elude his incapacity; and thus the law of one State be preposterously
rendered paramount to the law of another, within the jurisdiction of the other. We owe it to mere casualty,
that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States,
certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts
inconsistent not only with the rights of citizenship but with the privilege of residence. What would have
been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens
under the laws of another State, and then asserted their rights as such, both to residence and citizenship,
within the State proscribing them? Whatever the legal consequences might have been, other consequences
would probably have resulted, of too serious a nature not to be provided against. The new Constitution has
accordingly, with great propriety, made provision against them, and all others proceeding from the defect
of the Confederation on this head, by authorizing the general government to establish a uniform rule of
naturalization throughout the United States.
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The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of
commerce, and will prevent so many frauds where the parties or their property may lie or be removed into
different States, that the expediency of it seems not likely to be drawn into question.
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The power of prescribing by general laws, the manner in which the public acts, records and judicial
proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and
valuable improvement on the clause relating to this subject in the articles of Confederation. The meaning of
the latter is extremely indeterminate, and can be of little importance under any interpretation which it will
bear. The power here established may be rendered a very convenient instrument of justice, and be
particularly beneficial on the borders of contiguous States, where the effects liable to justice may be
suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction.
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The power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by
judicious management, become productive of great public conveniency. Nothing which tends to facilitate
the intercourse between the States can be deemed unworthy of the public care.
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Page 249
FED43: THE SAME SUBJECT CONTINUED (THE POWERS CONFERRED
CONSIDERED)
BY THE
CONSTITUTION FURTHER
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For the Independent Journal. Wednesday, January 23, 1788
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MADISON
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THE FOURTH class comprises the following miscellaneous powers:
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1. A power "to promote the progress of science and useful arts, by securing, for a limited time, to authors
and inventors, the exclusive right to their respective writings and discoveries."
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The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged,
in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to
belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The
States cannot separately make effectual provisions for either of the cases, and most of them have
anticipated the decision of this point, by laws passed at the instance of Congress.
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2. "To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles
square) as may, by cession of particular States and the acceptance of Congress, become the seat of the
government of the United States; and to exercise like authority over all places purchased by the consent of
the legislatures of the States in which the same shall be, for the erection of forts, magazines, arsenals,
dockyards, and other needful buildings."
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The indispensable necessity of complete authority at the seat of government, carries its own evidence with
it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general
supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with
impunity; but a dependence of the members of the general government on the State comprehending the
seat of the government, for protection in the exercise of their duty, might bring on the national councils an
imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other
members of the Confederacy. This consideration has the more weight, as the gradual accumulation of
public improvements at the stationary residence of the government would be both too great a public
pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the
government, as still further to abridge its necessary independence. The extent of this federal district is
sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to
this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the
rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of
interest to become willing parties to the cession; as they will have had their voice in the election of the
government which is to exercise authority over them; as a municipal legislature for local purposes, derived
from their own suffrages, will of course be allowed them; and as the authority of the legislature of the
State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole
people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated.
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The necessity of a like authority over forts, magazines, etc., established by the general government, is not
less evident. The public money expended on such places, and the public property deposited in them,
requires that they should be exempt from the authority of the particular State. Nor would it be proper for
the places on which the security of the entire Union may depend, to be in any degree dependent on a
particular member of it. All objections and scruples are here also obviated, by requiring the concurrence of
the States concerned, in every such establishment.
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3. "To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or
forfeiture, except during the life of the person attained."
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As treason may be committed against the United States, the authority of the United States ought to be
enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which
violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on
each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by
inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and
restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person
of its author.
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4. "To admit new States into the Union; but no new State shall be formed or erected within the jurisdiction
of any other State; nor any State be formed by the junction of two or more States, or parts of States,
without the consent of the legislatures of the States concerned, as well as of the Congress."
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In the articles of Confederation, no provision is found on this important subject. Canada was to be admitted
of right, on her joining in the measures of the United States; and the other COLONIES, by which were
evidently meant the other British colonies, at the discretion of nine States. The eventual establishment of
NEW STATES seems to have been overlooked by the compilers of that instrument. We have seen the
inconvenience of this omission, and the assumption of power into which Congress have been led by it. With
great propriety, therefore, has the new system supplied the defect. The general precaution, that no new
States shall be formed, without the concurrence of the federal authority, and that of the States concerned,
is consonant to the principles which ought to govern such transactions. The particular precaution against
the erection of new States, by the partition of a State without its consent, quiets the jealousy of the larger
States; as that of the smaller is quieted by a like precaution, against a junction of States without their
consent.
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5. "To dispose of and make all needful rules and regulations respecting the territory or other property
belonging to the United States," with a proviso, that "nothing in the Constitution shall be so construed as to
prejudice any claims of the United States, or of any particular State."
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This is a power of very great importance, and required by considerations similar to those which show the
propriety of the former. The proviso annexed is proper in itself, and was probably rendered absolutely
necessary by jealousies and questions concerning the Western territory sufficiently known to the public.
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6. "To guarantee to every State in the Union a republican form of government; to protect each of them
against invasion; and on application of the legislature, or of the executive (when the legislature cannot be
convened), against domestic violence."
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In a confederacy founded on republican principles, and composed of republican members, the
superintending government ought clearly to possess authority to defend the system against aristocratic or
monarchial innovations. The more intimate the nature of such a union may be, the greater interest have the
members in the political institutions of each other; and the greater right to insist that the forms of
government under which the compact was entered into should be SUBSTANTIALLY maintained. But a right
implies a remedy; and where else could the remedy be deposited, than where it is deposited by the
Constitution? Governments of dissimilar principles and forms have been found less adapted to a federal
coalition of any sort, than those of a kindred nature. "As the confederate republic of Germany," says
Montesquieu, "consists of free cities and petty states, subject to different princes, experience shows us that
it is more imperfect than that of Holland and Switzerland." "Greece was undone," he adds, "as soon as the
king of Macedon obtained a seat among the Amphictyons." In the latter case, no doubt, the
disproportionate force, as well as the monarchical form, of the new confederate, had its share of influence
on the events. It may possibly be asked, what need there could be of such a precaution, and whether it may
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not become a pretext for alterations in the State governments, without the concurrence of the States
themselves. These questions admit of ready answers. If the interposition of the general government should
not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But
who can say what experiments may be produced by the caprice of particular States, by the ambition of
enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be
answered, that if the general government should interpose by virtue of this constitutional authority, it will
be, of course, bound to pursue the authority. But the authority extends no further than to a GUARANTY of a
republican form of government, which supposes a pre-existing government of the form which is to be
guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are
guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican
forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction
imposed on them is, that they shall not exchange republican for antirepublican Constitutions; a restriction
which, it is presumed, will hardly be considered as a grievance.
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A protection against invasion is due from every society to the parts composing it. The latitude of the
expression here used seems to secure each State, not only against foreign hostility, but against ambitious or
vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern
confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this
article.
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Protection against domestic violence is added with equal propriety. It has been remarked, that even among
the Swiss cantons, which, properly speaking, are not under one government, provision is made for this
object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as
well by the most democratic, as the other cantons. A recent and well-known event among ourselves has
warned us to be prepared for emergencies of a like nature.
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At first view, it might seem not to square with the republican theory, to suppose, either that a majority
have not the right, or that a minority will have the force, to subvert a government; and consequently, that
the federal interposition can never be required, but when it would be improper. But theoretic reasoning, in
this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations,
for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority
of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to
protect the local magistracy, ought not the federal authority, in the former, to support the State authority?
Besides, there are certain parts of the State constitutions which are so interwoven with the federal
Constitution, that a violent blow cannot be given to the one without communicating the wound to the
other. Insurrections in a State will rarely induce a federal interposition, unless the number concerned in
them bear some proportion to the friends of government. It will be much better that the violence in such
cases should be repressed by the superintending power, than that the majority should be left to maintain
their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent
the necessity of exerting it.
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Is it true that force and right are necessarily on the same side in republican governments? May not the
minor party possess such a superiority of pecuniary resources, of military talents and experience, or of
secret succors from foreign powers, as will render it superior also in an appeal to the sword? May not a
more compact and advantageous position turn the scale on the same side, against a superior number so
situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more
chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail
in a census of the inhabitants, or which determine the event of an election! May it not happen, in fine, that
the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual
concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of
suffrage? I take no notice of an unhappy species of population abounding in some of the States, who,
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during the calm of regular government, are sunk below the level of men; but who, in the tempestuous
scenes of civil violence, may emerge into the human character, and give a superiority of strength to any
party with which they may associate themselves.
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In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two
violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate
States, not heated by the local flame? To the impartiality of judges, they would unite the affection of
friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a
project equally effectual could be established for the universal peace of mankind!
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Should it be asked, what is to be the redress for an insurrection pervading all the States, and comprising a
superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it
would be without the compass of human remedies, so it is fortunately not within the compass of human
probability; and that it is a sufficient recommendation of the federal Constitution, that it diminishes the risk
of a calamity for which no possible constitution can provide a cure.
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Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, "that
should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses
creep into one part, they are reformed by those that remain sound."
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7. "To consider all debts contracted, and engagements entered into, before the adoption of this
Constitution, as being no less valid against the United States, under this Constitution, than under the
Confederation."
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This can only be considered as a declaratory proposition; and may have been inserted, among other
reasons, for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the
pretended doctrine, that a change in the political form of civil society has the magical effect of dissolving its
moral obligations.
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Among the lesser criticisms which have been exercised on the Constitution, it has been remarked that the
validity of engagements ought to have been asserted in favor of the United States, as well as against them;
and in the spirit which usually characterizes little critics, the omission has been transformed and magnified
into a plot against the national rights. The authors of this discovery may be told, what few others need to
be informed of, that as engagements are in their nature reciprocal, an assertion of their validity on one side,
necessarily involves a validity on the other side; and that as the article is merely declaratory, the
establishment of the principle in one case is sufficient for every case. They may be further told, that every
constitution must limit its precautions to dangers that are not altogether imaginary; and that no real danger
can exist that the government would DARE, with, or even without, this constitutional declaration before it,
to remit the debts justly due to the public, on the pretext here condemned.
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8. "To provide for amendments to be ratified by three fourths of the States under two exceptions only."
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That useful alterations will be suggested by experience, could not but be foreseen. It was requisite,
therefore, that a mode for introducing them should be provided. The mode preferred by the convention
seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which
would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its
discovered faults. It, moreover, equally enables the general and the State governments to originate the
amendment of errors, as they may be pointed out by the experience on one side, or on the other. The
exception in favor of the equality of suffrage in the Senate, was probably meant as a palladium to the
residuary sovereignty of the States, implied and secured by that principle of representation in one branch of
the legislature; and was probably insisted on by the States particularly attached to that equality. The other
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exception must have been admitted on the same considerations which produced the privilege defended by
it.
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9. "The ratification of the conventions of nine States shall be sufficient for the establishment of this
Constitution between the States, ratifying the same."
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This article speaks for itself. The express authority of the people alone could give due validity to the
Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the
essential interests of the whole to the caprice or corruption of a single member. It would have marked a
want of foresight in the convention, which our own experience would have rendered inexcusable.
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Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the
Confederation, which stands in the solemn form of a compact among the States, can be superseded
without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more
States ratifying the Constitution, and the remaining few who do not become parties to it?
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The first question is answered at once by recurring to the absolute necessity of the case; to the great
principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that
the safety and happiness of society are the objects at which all political institutions aim, and to which all
such institutions must be sacrificed. PERHAPS, also, an answer may be found without searching beyond the
principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that
in many of the States it had received no higher sanction than a mere legislative ratification. The principle of
reciprocality seems to require that its obligation on the other States should be reduced to the same
standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority,
can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine
on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any
one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves
the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it
unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent
of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task
to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has
been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now
changed, and with it the part which the same motives dictate.
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The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids
an overcurious discussion of it. It is one of those cases which must be left to provide for itself. In general, it
may be observed, that although no political relation can subsist between the assenting and dissenting
States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the
other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually
respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing
scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is
hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other.
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Page 254
AFED41-43: (PART I) "THE QUANTITY OF POWER THE UNION MUST POSSESS IS ONE THING; THE
MODE OF EXERCISING THE POWERS GIVEN IS QUITE A DIFFERENT CONSIDERATION"
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A portion of an essay by “THE FEDERAL FARMER” attributed to Robert Henry Lee and is taken from Letter
XVII January 23,1788
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. . . . A federal republic in itself supposes state or local governments to exist, as the body or props, on which
the federal bead rests, and that it cannot remain a moment after they cease. In erecting the federal
government, and always in its councils, each state must be known as a sovereign body. But in erecting this
government, I conceive, the legislature of the state, by the expressed or implied assent of the people, or the
people of the state, under the direction of the government of it, may accede to the federal compact. Nor do
I conceive it to be necessarily a part of a confederacy of states, that each have an equal voice in the general
councils. A confederated republic being organized, each state must retain powers for managing its internal
police, and all delegate to the union power to manage general concerns. The quantity of power the union
must possess is one thing; the mode of exercising the powers given is quite a different consideration- and it
is the mode of exercising them, that makes one of the essential distinctions between one entire or
consolidated government, and a federal republic. That is, however the government may be organized, if the
laws of the union, in most important concerns, as in levying and collecting taxes, raising troops, etc.,
operate immediately upon the persons and property of individuals, and not on states, extend to organizing
the militia, etc., the government, as to its administration, as to making and executing laws, is not federal,
but consolidated. To illustrate my idea: the union makes a requisition, and assigns to each state its quota of
men or monies wanted; each state, by its own laws and officers, in its own way, furnishes its quota. Here
the state governments stand between the union and individuals; the laws of the union operate only on
states, as such, and federally. Here nothing can be done without the meetings of the state legislatures. But
in the other case the union, though the state legislatures should not meet for years together, proceeds
immediately by its own laws and officers to levy and collect monies of individuals, to enlist men, form
armies, etc. Here the laws of the union operate immediately on the body of the people, on persons and
property. In the same manner the laws of one entire consolidated government operate. These two modes
are very distinct, and in their operation and consequences have directly opposite tendencies.... I am not for
depending wholly on requisitions. Since the peace, and till the convention reported, the wisest men in the
United States generally supposed that certain limited funds would answer the purposes of the union. And
though the states are by no means in so good a condition as I wish they were, yet, I think, I may very safely
affirm, they are in a better condition than they would be had congress always possessed the powers of
taxation now contended for. The fact is admitted, that our federal government does not possess sufficient
powers to give life and vigor to the political system; and that we experience disappointments, and several
inconveniences. But we ought carefully to distinguish those which are merely the consequences of a severe
and tedious war, from those which arise from defects in the federal system. There has been an entire
revolution in the United States within thirteen years, and the least we can compute the waste of labor and
property at, during that period, by the war, is three hundred millions of dollars. Our people are like a man
just recovering from a severe fit of sickness. It was the war that disturbed the course of commerce
introduced floods of paper money, the stagnation of credit, and threw many valuable men out of steady
business. From these sources our greatest evils arise. Men of knowledge and reflection must perceive it.
But then, have we not done more in three or four years past, in repairing the injuries of the war, by
repairing houses and estates, restoring industry, frugality, the fisheries, manufactures, etc., and thereby
laying the foundation of good government, and of individual and political happiness, than any people ever
did in a like time? We must judge from a view of the country and facts, and not from foreign newspapers, or
our own, which are printed chiefly in the commercial towns, where imprudent living, imprudent
importations, and many unexpected disappointments, have produced a despondency, and a disposition to
view everything on the dark side. Some of the evils we feel, all will agree, ought to be imputed to the
defective administration of the governments.
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From these and various considerations, I am very clearly of opinion that the evils we sustain merely on
account of the defects of the confederation, ar but as a feather in the balance against a mountain,
compared with those which would infallibly be the result of the loss of general liberty, and that happiness
men enjoy under a frugal, free, and mild government.
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Heretofore we do not seem to have seen danger any where, but in giving power to congress, and now no
where but in congress wanting powers; and without examining the extent of the evils to be remedied, by
one step we ar for giving up to congress almost all powers of any importance without limitation. The
defects of the confederation are extravagantly magnified, an every species of pain we feel imputed to
them; and hence it is inferred, the must be a total change of the principles, as well as forms of government
And in the main point, touching the federal powers, we rest all on a logical inference, totally inconsistent
with experience and sound political reasoning.
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It is said, that as the federal head must make peace and war, and provide for the common defense, it ought
to possess all powers necessary to that end. That powers unlimited, as to the purse and sword, to raise men
and monies and form the militia, are necessary to that end; and therefore, the federal head ought to
possess them. This reasoning is far more specious than solid. It is necessary that these powers so exist in
the body politic, as to be called into exercise whenever necessary for the public safety. But it is by no means
true that the man, or congress of men, whose duty it more immediately is to provide for the common
defense, ought to possess them without limitation. But clear it is, that if such men, or congress, be not in a
situation to hold them without danger to liberty, he or they ought not to possess them. It has long been
thought to be a well founded position, that the purse and sword ought not to be placed in the same hands
in a free government. Our wise ancestors have carefully separated them-placed the sword in the hands of
their king, even under considerable limitations, and the purse in the hands of the commons alone. Yet the
king makes peace and war, and it is his duty to provide for the common defense of the nation. This
authority at least goeth thus far-that a nation, well versed in the science of government, does not conceive
it to be necessary or expedient for the man entrusted with the common defense and general tranquility, to
possess unlimitedly the power in question, or even in any considerable degree. Could he, whose duty it is t
defend the public, possess in himself independently, all the means of doing it consistent with the public
good, it might be convenient. But the people o England know that their liberties and happiness would be in
infinitely great danger from the king's unlimited possession of these powers, than from al external enemies
and internal commotions to which they might be exposed Therefore, though they have made it his duty to
guard the empire, yet the have wisely placed in other hands, the hands of their representatives, the power
to deal out and control the means. In Holland their high mightiness must provide for the common defense,
but for the means they depend in considerable degree upon requisitions made on the state or local
assemblies Reason and facts evince, that however convenient it might be for an executive magistrate, or
federal head, more immediately charged with the national defense and safety, solely, directly, and
independently to possess all the means, yet such magistrate or head never ought to possess them if
thereby the public liberties shall be endangered. The powers in question never have been, by nations wise
and free, deposited, nor can they ever be, with safety, any where out of the principal members of the
national system. Where these form one entire government, as in Great Britain, they are separated and
lodged in the principal members of it. But in a federal republic, there is quite a different organization; the
people form this kind of government, generally, because their territories are too extensive to admit of their
assembling in one legislature, or of executing the laws on free principles under one entire government.
They Convene in their local assemblies, for local purposes, and for managing their internal concerns, and
unite their states under a federal head for general purposes. It is the essential characteristic of a
confederated republic, that this head be dependent on, and kept within limited bounds by the local
governments; and it is because, in these alone, in fact, the people can be substantially assembled or
represented. It is, therefore, we very universally see, in this kind of government, the congressional powers
placed in a few hands, and accordingly limited, and specifically enumerated; and the local assemblies strong
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and well guarded, and composed of numerous members. Wise men will always place the controlling power
where the people are substantially collected by their representatives. By the proposed system the federal
head will possess, without limitation, almost every species of power that can, in its exercise, tend to change
the government, or to endanger liberty; while in it, I think it has been fully shown, the people will have but
the shadow of representation, and but the shadow of security for their rights and liberties. In a
confederated republic, the division of representation, etc., in its nature, requires a correspondent division
and deposit of powers, relative to taxes and military concerns. And I think the plan offered stands quite
alone, in confounding the principles of governments in themselves totally distinct. I wish not to exculpate
the states for their improper neglects in not paying their quotas of requisitions. But, in applying the remedy,
we must be governed by reason and facts. It will not be denied that the people have a right to change the
government when the majority choose it, if not restrained by some existing compact; that they have a right
to displace their rulers, and consequently to determine when their measures are reasonable or not; and
that they have a right, at any time, to put a stop to those measures they may deem prejudicial to them, by
such forms and negatives as they may see fit to provide. From all these, and many other well founded
considerations, I need not mention, a question arises, what powers shall there be delegated to the federal
head, to insure safety, as well as energy, in the government? I think there is a safe and proper medium
pointed out by experience, by reason, and facts. When we have organized the government, we ought to
give power to the union, so far only as experience and present circumstances shall direct, with a reasonable
regard to time to come. Should future circumstances, contrary to our expectations, require that further
powers be transferred to the union, we can do it far more easily, than get back those we may now
imprudently give. The system proposed is untried. Candid advocates and opposers admit, that it is in a
degree, a mere experiment, and that its organization is weak and imperfect. Surely then, the safe ground is
cautiously to vest power in it, and when we are sure we have given enough for ordinary exigencies, to be
extremely careful how we delegate powers, which, in common cases, must necessarily be useless or
abused, and of very uncertain effect in uncommon ones. By giving the union power to regulate commerce,
and to levy and collect taxes by imposts, we give it an extensive authority, and permanent productive funds,
I believe quite as adequate to present demands of the union, as excises and direct taxes can be made to the
present demands of the separate states. The state governments are now about four times as expensive as
that of the union; and their several state debts added together, are nearly as large as that of the union. Our
impost duties since the peace have been almost as productive as the other sources of taxation, and when
under one general system of regulations, the probability is that those duties will be very considerably
increased. Indeed the representation proposed will hardly justify giving to congress unlimited powers to
raise taxes by imposts, in addition to the other powers the union must necessarily have. It is said, that if
congress possess only authority to raise taxes by imposts, trade probably will be overburdened with taxes,
and the taxes of the union be found inadequate to any uncommon exigencies. To this we may observe, that
trade generally finds its own level, and will naturally and necessarily heave off any undue burdens laid upon
it. Further, if congress alone possess the impost, and also unlimited power to raise monies by excises and
direct taxes, there must be much more danger that two taxing powers, the union and states, will carry
excises and direct taxes to an unreasonable extent, especially as these have not the natural boundaries
taxes on trade have. However, it is not my object to propose to exclude congress from raising monies by
internal taxes, except in strict conformity to the federal plan; that is, by the agency of the state
governments in all cases, except where a state shall neglect, for an unreasonable time, to pay its quota of a
requisition; and never where so many of the state legislatures as represent a majority of the people, shall
formally determine an excise law or requisition is improper, in their next session after the same be laid
before them. We ought always to recollect that the evil to be guarded against is found by our own
experience, and the experience of others, to be mere neglect in the states to pay their quotas; and power in
the union to levy and collect the neglecting states' quotas with interest, is fully adequate to the evil. By this
federal plan, with this exception mentioned, we secure the means of collecting the taxes by the usual
process of law, and avoid the evil of attempting to compel or coerce a state; and we avoid also a
circumstance, which never yet could be, and I am fully confident never can be, admitted in a free federal
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republic-I mean a permanent and continued system of tax laws of the union, executed in the bowels of the
states by many thousand officers, dependent as to the assessing and collecting federal taxes solely upon
the union. On every principle, then, we ought to provide that the union render an exact account of all
monies raised by imposts and other taxes whenever monies shall be wanted for the purposes of the union
beyond the proceeds of the impost duties; requisitions shall be made on the states for the monies so
wanted; and that the power of laying and collecting shall never be exercised, except in cases where a state
shall neglect, a given time, to pay its quota. This mode seems to be strongly pointed out by the reason of
the case, and spirit of the government; and I believe, there is no instance to be found in a federal republic,
where the congressional powers ever extended generally to collecting monies by direct taxes or excises.
Creating all these restrictions, still the powers of the union in matters of taxation will be too unlimited;
further checks, in my mind, are indispensably necessary. Nor do I conceive, that as full a representation as is
practicable in the federal government, will afford sufficient security. The strength of the government, and
the confidence of the people, must be collected principally in the local assemblies. . . . A government
possessed of more power than its constituent parts will justify, will not only probably abuse it, but be
unequal to bear its own burden; it may as soon be destroyed by the pressure of power, as languish and
perish for want of it.
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There are two ways further of raising checks, and guarding against -undue combinations and influence in a
federal system. The first is-in levying taxes, raising and keeping up armies, in building navies, in forming
plans for the militia, and in appropriating monies for the support of the military-to require the attendance
of a large proportion of the federal representatives, as two-thirds or three-fourths of them; and in passing
laws, in these important cases, to require the consent of two-thirds or three- fourths of the members
present. The second is, by requiring that certain important laws of the federal head-as a requisition or a law
for raising monies by excise- shall be laid before the state legislatures, and if disapproved of by a given
number of them, say by as many of them as represent a majority of the people, the law shall have no effect.
Whether it would be advisable to adopt both, or either of these checks, I will not undertake to determine.
We have seen them both exist in confederated republics. The first exists substantially in the confederation,
and will exist in some measure in the plan proposed, as in choosing a president by the house, or in expelling
members; in the senate, in making treaties, and in deciding on impeachments; and in the whole, in altering
the constitution. The last exists in the United Netherlands, but in a much greater extent. The first is founded
on this principle, that these important measures may, sometimes, be adopted by a bare quorum of
members, perhaps from a few states, and that a bare majority of the federal representatives may
frequently be of the aristocracy, or some particular interests, connections, or parties in the community, and
governed by motives, views, and inclinations not compatible with the general interest. The last is founded
on this principle, that the people will be substantially represented, only in their state or local assemblies;
that their principal security must be found in them; and that, therefore, they ought to have ultimately a
constitutional control over such interesting measures…
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THE FEDERAL FARMER
Page 258
AFED41-43: (PART II) "THE QUANTITY OF POWER THE UNION MUST POSSESS IS ONE THING; THE
MODE OF EXERCISING THE POWERS GIVEN IS QUITE A DIFFERENT CONSIDERATION"
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A portion of an essay by “THE FEDERAL FARMER” attributed to Robert Henry Lee and is taken from Letter
XVIII, January 24,1788
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. . . In the present state of mankind, and of conducting war, the government of every nation must have
power to raise and keep up regular troops. The question is, how shall this power be lodged? In an entire
government, as in Great-Britain, where the people assemble by their representatives in one legislature,
there is no difficulty; it is of course properly lodged in that legislature. But in a confederated republic, where
the organization consists of a federal head, and local governments, there is no one part in which it can be
solely, and safely lodged. By Art. 1., Sect. 8., "congress shall have power to raise and support armies," etc.
By Art. I., Sect. 10., "no state, without the consent of congress, shall keep troops, or ships of war, in time of
peace." It seems fit the union should direct the raising of troops, and the union may do it in two ways: by
requisitions on the states, or by direct taxes. The first is most conformable to the federal plan, and safest;
and it may be improved, by giving the union power, by its own laws and officers, to raise the state's quota
that may neglect, and to charge it with the expense; and by giving a fixed quorum of the state legislatures
power to disapprove the requisition. There would be less danger in this power to raise troops, could the
state governments keep a proper control over the purse and over the militia. But after all the precautions
we can take, without evidently fettering the union too much, we must give a large accumulation of powers
to it, in these and other respects. There is one check, which, I think may be added with great propriety-that
is, no land forces shall be kept up, but by legislative acts annually passed by congress, and no appropriation
of monies for their support shall be for a longer term than one year. This is the constitutional practice in
Great Britain, and the reasons for such checks in the United States appear to be much stronger. We may
also require that these acts be passed by a special majority, as before mentioned. There is another mode
still more guarded, and which seems to be founded in the true spirit of a federal system: it seems proper to
divide those powers we can with safety, lodge them in no one member of the government alone; yet
substantially to preserve their use, and to insure duration to the government by modifying the exercise of
them-it is to empower congress to raise troops by direct levies, not exceeding a given number, say 2000 in
time of peace, and 12,000 in a time of war, and for such further troops as may be wanted, to raise them by
requisitions qualified ,as before mentioned. By the above recited clause no state shall keep troops, etc., in
time of peace-this clearly implies it may do it in time of war. This must be on the principle that the union
cannot defend all parts of the republic, and suggests an idea very repugnant to the general tendency of the
system proposed, which is to disarm the state governments. A state in a long war may collect forces
sufficient to take the field against the neighboring states. This clause was copied from the confederation, in
which it was of more importance than in the plan proposed, because under this the separate states,
probably, will have but small revenues.
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By Article I., section 8., congress shall have power to establish uniform laws on the subject of bankruptcies
throughout the United States. It is to be observed, that the separate states have ever been in possession of
the power, and in the use of it, of making bankrupt-laws, militia laws, and laws in some other cases,
respecting which, the new constitution, when adopted, will give the union power to legislate, etc. But no
words are used by the constitution to exclude the jurisdiction of the several states, and whether they will
be excluded or not, or whether they and the union will have concurrent jurisdiction or not, must be
determined by inference, and from the nature of the subject. If the power, for instance, to make uniform
laws on the subject of bankruptcies, is in its nature indivisible, or incapable of being exercised by two
legislatures independently, or by one in aid of the other, then the states are excluded, and cannot legislate
at all on the subject, even though the union should neglect or find it impracticable to establish uniform
bankrupt laws. How far the union will find it practicable to do this, time only can fully determine. When we
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consider the extent of the country, and the very different ideas of the different parts in it, respecting credit,
and the mode of making men's property liable for paying their debts, we may, I think with some degree of
certainty, conclude that the union never will be able to establish such laws. But if practicable, it does not
appear to me, on further reflection, that the union ought to have the power. It does not appear to me to be
a power properly incidental to a federal head, and, I believe, no one ever possessed it. It is a power that will
immediately and extensively interfere with the internal police of the separate states, especially with their
administering justice among their own citizens. By giving this power to the union, we greatly extend the
jurisdiction of the federal judiciary, as all questions arising on bankrupt laws, being laws of the union . . .[indeed], almost all civil causes-may be drawn into those courts. We must be sensible how cautious we
ought to be in extending unnecessarily the jurisdiction of those courts for reasons I need not repeat. This
article of power too, will considerably increase, in the hands of the union, an accumulation of powers, some
of a federal and some of an unfederal nature, [already] too large without it. The constitution provides that
congress shall have the sole and exclusive government of what is called the federal city, a place not
exceeding ten miles square, and of all places ceded for forts, dock-yards, etc. I believe this is a novel kind of
provision in a federal republic; it is repugnant to the spirit of such a government, and must be founded in an
apprehension of a hostile disposition between the federal head and the state governments. And it is not
improbable that the sudden retreat of congress from Philadelphia first gave rise to it. With this
apprehension, we provide, the government of the union shall have secluded places, cities, and castles of
defense, which no state laws whatever shall invade. When we attentively examine this provision in all its
consequences, it opens to view scenes almost without bounds. A federal, or rather a national city, ten miles
square, containing a hundred square miles, is about four times as large as London; and for forts, magazines,
arsenals, dock yards, and other needful buildings, congress may possess a number of places or towns in
each state. It is true, congress cannot have them unless the state legislatures cede them; but when once
ceded, they never can be recovered. And though the general temper of the legislatures may be averse to
such cessions, yet many opportunities and advantages may be taken of particular times and circumstances
of complying assemblies, and of particular parties, to obtain them. it is not improbable, that some
considerable towns or places, in some intemperate moments, or influenced by anti-republican principles,
will petition to be ceded for the purposes mentioned in the provision. There are men, and even towns, in
the best republics, which are often fond of withdrawing from the government of them, whenever occasion
shall present. The case is still stronger. If the provision in question holds out allurements to attempt to
withdraw, the people of a state must ever be subject to state as well as federal taxes; but the federal city
and places will be subject only to the latter, and to them by no fixed proportion. Nor of the taxes raised in
them, can the separate states demand any account of congress. These doors opened for withdrawing from
the state governments entirely, may, on other accounts, be very alluring and pleasing to those antirepublican men who prefer a place under the wings of courts.
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If a federal town be necessary for the residence of congress and the public officers, it ought to be a small
one, and the government of it fixed on republican and common law principles, carefully enumerated and
established by the constitution. it is true, the states, when they shall cede places, may stipulate that the
laws and government of congress in them shall always be formed on such principles. But it is easy to
discern, that the stipulations of a state, or of the inhabitants of the place ceded, can be of but little avail
against the power and gradual encroachments of the union. The principles ought to be established by the
federal constitution, to which all states are parties; but in no event can there be any need of so large a city
and places for forts, etc., totally exempted from the laws and jurisdictions of the state governments. If I
understand the constitution, the laws of congress, constitutionally made, will have complete and supreme
jurisdiction to all federal purposes, on every inch of ground in the United States, and exclusive jurisdiction
on the high seas, and this by the highest authority, the consent of the people. Suppose ten acres at WestPoint shall be used as a fort of the union, or a sea port town as a dockyard: the laws of the union, in those
places, respecting the navy, forces of the union, and all federal objects, must prevail, be noticed by all
judges and officers, and executed accordingly. And I can discern no one reason for excluding from these
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places, the operation of state laws, as to mere state purpose for instance, for the collection of state taxes in
them; recovering debts; deciding questions of property arising within them on state laws; punishing, by
state laws, theft, trespasses, and offenses committed in them by mere citizens against the state law.
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The city, and all the places in which the union shall have this exclusive jurisdiction, will be immediately
under one entire government, that of the federal head, and be no part of any state, and consequently no
part of the United States. The inhabitants of the federal city and places, will be as much exempt from the
laws and control of the state governments, as the people of Canada or Nova Scotia will be. Neither the laws
of the states respecting taxes, the militia, crimes of property, will extend to them; nor is there a single
stipulation in the constitution, that the inhabitants of this city, and these places, shall be governed by laws
founded on principles of freedom. All questions, civil and criminal, arising on the laws of these places, which
must be the laws of congress, must be decided in the federal courts; and also, all questions that may, by
such judicial fictions as these courts may consider reasonable, be supposed to arise within this city, or any
of these places, may be brought into these courts. By a very common legal fiction, any personal contract
may be supposed to have been made in any place. A contract made in Georgia may be supposed to have
been made in the federal city; the courts will admit the fiction. . . . Every suit in which an inhabitant of a
federal district may be a party, of course may be instituted in the federal courts; also, every suit in which it
may be alleged and not denied, that a party in it is an inhabitant of such a district; also, every suit to which a
foreign state or subject, the union, a state, citizens of different states in fact, or by reasonable legal fictions,
may be a party or parties. And thus, by means of bankrupt laws, federal districts, etc., almost all judicial
business, I apprehend may be carried into the federal courts, without essentially departing from the usual
course of judicial proceedings. The courts in Great Britain have acquired their powers, and extended very
greatly their jurisdictions by such fiction and suppositions as I have mentioned. The constitution, in these
points, certainly involves in it principles, and almost hidden cases, which may unfold and in time exhibit
consequences we hardly think of. The power of naturalization, when viewed in connection with the judicial
powers and cases, is, in my mind, of very doubtful extent. By the constitution itself, the citizens of each
state will be naturalized citizens of every state, to the general purposes of instituting suits, claiming the
benefits of the laws, etc. And in order to give the federal courts jurisdiction of an action, between citizens of
the same state, in common acceptation-may not a court allow the plaintiff to say, he is a citizen of one
state, and the defendant a citizen of another without carrying legal fictions so far, by any means, as they
have been carried by the courts of King's Bench and Exchequer, in order to bring causes within their
cognizance? Further, the federal city and districts, will be totally distinct from any state, and a citizen of a
state will not of course be subject of any of them. And to avail himself of the privileges and immunities of
them, must he not be naturalized by congress in them? And may not congress make any proportion of the
citizens of the states naturalized subjects of the federal city and districts, and thereby entitle them to sue or
defend, in all cases, in the federal courts? I have my doubts, and many sensible men, I find, have their
doubts, on these points. And we ought to observe, they must be settled in the courts of law, by their rules,
distinctions, and fictions. To avoid many of these intricacies and difficulties, and to avoid the undue and
unnecessary extension of the federal judicial powers, it appears to me that no federal districts ought to be
allowed, and no federal city or town-except perhaps a small town, in which the government shall be
republican, but in which congress shall have no jurisdiction over the inhabitants of the states. Can the union
want, in such a town, any thing more than a right to the soil to which it may set its buildings, and extensive
jurisdiction over the federal buildings, and property, its own members, officers, and servants in it? As to all
federal objects, the union will have complete jurisdiction over them of course any where, and every where.
I still think that no actions ought to be allowed to be brought in the federal courts, between citizens of
different states; at least, unless the cause be of very considerable importance. And that no action against a
state government, by any citizen or foreigner, ought to be allowed; and no action, in which a foreign subject
is party, at least, unless it be of very considerable importance, ought to be instituted in federal courts. I
confess, I can see no reason whatever, for a foreigner, or for citizens of different states, carrying sixpenny
causes into the federal courts. I think the state courts will be found by experience, to be bottomed on
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better principles, and to administer justice better than the federal courts. The difficulties and dangers I have
supposed will result from so large a federal city, and federal districts, from the extension of the federal
judicial powers, etc. are not, I conceive, merely possible, but probable. I think pernicious political
consequences will follow from them, and from the federal city especially, for very obvious reasons, a few of
which I will mention.
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We must observe that the citizens of a state will be subject to state as well as federal taxes, and the
inhabitants of the federal city and districts only to such taxes as congress may lay. We are not to suppose all
our people are attached to free government, and the principles of the common law, but that many
thousands of them will prefer a city governed not on republican principles. This city, and the government of
it, must indubitably take their tone from the characters of the men, who from the nature of its situation and
institution must collect there. This city will not be established for productive labor, for mercantile, or
mechanic industry; but for the residence of government, its officers and attendants. If hereafter it should
ever become a place of trade and industry, [yet] in the early periods of its existence, when its laws and
government must receive their fixed tone, it must be a mere court, with its appendages-the executive,
congress, the law courts, gentlemen of fortune and pleasure, with all the officers, attendants, suitors,
expectants and dependents on the whole. However brilliant and honorable this collection may be, if we
expect it will have any sincere attachments to simple and frugal republicanism, to that liberty and mild
government, which is dear to the laborious part of a free people, we must assuredly deceive ourselves. This
early collection will draw to it men from all parts of the country, of a like political description. We see them
looking towards the place already.
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Such a city, or town, containing a hundred square miles, must soon be the great, the visible, and dazzling
centre, the mistress of fashions, and the fountain of politics. There may be a free or shackled press in this
city, and the streams which may issue from it may over flow the country, and they will be poisonous or
pure, as the fountain may be corrupt or not. But not to dwell on a subject that must give pain to the
virtuous friends of freedom, I will only add, can a free and enlightened people create a common head so
extensive, so prone to corruption and slavery, as this city probably will be, when they have it in their power
to form one pure and chaste, frugal and republican?
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THE FEDERAL FARMER
Page 262
AUTHORITIES OF THE STATES
AFED46: "WHERE THEN IS THE RESTRAINT?"
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This essay by "AN OLD WHIG" (see AFP #'s Nos. 18-20, 49, 50, and 70) appeared in the Maryland Gazette
and Baltimore Advertiser on October 17, 1787.
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Let us look to the first article of the proposed new constitution,

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