Full Text Archive logoFull Text Archive — Books, poems, drama…

Part 10 out of 10

Adobe PDF icon
Download this document as a .pdf
File size: 1.2 MB
What's this? light bulb idea Many people prefer to read off-line or to print out text and read from the real printed page. Others want to carry documents around with them on their mobile phones and read while they are on the move. We have created .pdf files of all out documents to accommodate all these groups of people. We recommend that you download .pdfs onto your mobile phone when it is connected to a WiFi connection for reading off-line.

most cases in which they may be deemed proper, instead of being
carried to the Supreme Court, may be made to lie from the State
courts to district courts of the Union.
PUBLIUS.
1 No. 31.
2 Sec. 8th art. 1st.

FEDERALIST No. 83

The Judiciary Continued in Relation to Trial by Jury
From MCLEAN's Edition, New York.

HAMILTON

To the People of the State of New York:
THE objection to the plan of the convention, which has met with
most success in this State, and perhaps in several of the other
States, is THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION
for the trial by jury in civil cases. The disingenuous form in
which this objection is usually stated has been repeatedly adverted
to and exposed, but continues to be pursued in all the conversations
and writings of the opponents of the plan. The mere silence of the
Constitution in regard to CIVIL CAUSES, is represented as an
abolition of the trial by jury, and the declamations to which it has
afforded a pretext are artfully calculated to induce a persuasion
that this pretended abolition is complete and universal, extending
not only to every species of civil, but even to CRIMINAL CAUSES. To
argue with respect to the latter would, however, be as vain and
fruitless as to attempt the serious proof of the EXISTENCE of
MATTER, or to demonstrate any of those propositions which, by their
own internal evidence, force conviction, when expressed in language
adapted to convey their meaning.
With regard to civil causes, subtleties almost too contemptible
for refutation have been employed to countenance the surmise that a
thing which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every
man of discernment must at once perceive the wide difference between
SILENCE and ABOLITION. But as the inventors of this fallacy have
attempted to support it by certain LEGAL MAXIMS of interpretation,
which they have perverted from their true meaning, it may not be
wholly useless to explore the ground they have taken.
The maxims on which they rely are of this nature: ``A
specification of particulars is an exclusion of generals''; or,
``The expression of one thing is the exclusion of another.'' Hence,
say they, as the Constitution has established the trial by jury in
criminal cases, and is silent in respect to civil, this silence is
an implied prohibition of trial by jury in regard to the latter.
The rules of legal interpretation are rules of COMMONSENSE,
adopted by the courts in the construction of the laws. The true
test, therefore, of a just application of them is its conformity to
the source from which they are derived. This being the case, let me
ask if it is consistent with common-sense to suppose that a
provision obliging the legislative power to commit the trial of
criminal causes to juries, is a privation of its right to authorize
or permit that mode of trial in other cases? Is it natural to
suppose, that a command to do one thing is a prohibition to the
doing of another, which there was a previous power to do, and which
is not incompatible with the thing commanded to be done? If such a
supposition would be unnatural and unreasonable, it cannot be
rational to maintain that an injunction of the trial by jury in
certain cases is an interdiction of it in others.
A power to constitute courts is a power to prescribe the mode of
trial; and consequently, if nothing was said in the Constitution on
the subject of juries, the legislature would be at liberty either to
adopt that institution or to let it alone. This discretion, in
regard to criminal causes, is abridged by the express injunction of
trial by jury in all such cases; but it is, of course, left at
large in relation to civil causes, there being a total silence on
this head. The specification of an obligation to try all criminal
causes in a particular mode, excludes indeed the obligation or
necessity of employing the same mode in civil causes, but does not
abridge THE POWER of the legislature to exercise that mode if it
should be thought proper. The pretense, therefore, that the
national legislature would not be at full liberty to submit all the
civil causes of federal cognizance to the determination of juries,
is a pretense destitute of all just foundation.
From these observations this conclusion results: that the trial
by jury in civil cases would not be abolished; and that the use
attempted to be made of the maxims which have been quoted, is
contrary to reason and common-sense, and therefore not admissible.
Even if these maxims had a precise technical sense, corresponding
with the idea of those who employ them upon the present occasion,
which, however, is not the case, they would still be inapplicable to
a constitution of government. In relation to such a subject, the
natural and obvious sense of its provisions, apart from any
technical rules, is the true criterion of construction.
Having now seen that the maxims relied upon will not bear the
use made of them, let us endeavor to ascertain their proper use and
true meaning. This will be best done by examples. The plan of the
convention declares that the power of Congress, or, in other words,
of the NATIONAL LEGISLATURE, shall extend to certain enumerated
cases. This specification of particulars evidently excludes all
pretension to a general legislative authority, because an
affirmative grant of special powers would be absurd, as well as
useless, if a general authority was intended.
In like manner the judicial authority of the federal judicatures
is declared by the Constitution to comprehend certain cases
particularly specified. The expression of those cases marks the
precise limits, beyond which the federal courts cannot extend their
jurisdiction, because the objects of their cognizance being
enumerated, the specification would be nugatory if it did not
exclude all ideas of more extensive authority.
These examples are sufficient to elucidate the maxims which have
been mentioned, and to designate the manner in which they should be
used. But that there may be no misapprehensions upon this subject,
I shall add one case more, to demonstrate the proper use of these
maxims, and the abuse which has been made of them.
Let us suppose that by the laws of this State a married woman
was incapable of conveying her estate, and that the legislature,
considering this as an evil, should enact that she might dispose of
her property by deed executed in the presence of a magistrate. In
such a case there can be no doubt but the specification would amount
to an exclusion of any other mode of conveyance, because the woman
having no previous power to alienate her property, the specification
determines the particular mode which she is, for that purpose, to
avail herself of. But let us further suppose that in a subsequent
part of the same act it should be declared that no woman should
dispose of any estate of a determinate value without the consent of
three of her nearest relations, signified by their signing the deed;
could it be inferred from this regulation that a married woman
might not procure the approbation of her relations to a deed for
conveying property of inferior value? The position is too absurd to
merit a refutation, and yet this is precisely the position which
those must establish who contend that the trial by juries in civil
cases is abolished, because it is expressly provided for in cases of
a criminal nature.
From these observations it must appear unquestionably true, that
trial by jury is in no case abolished by the proposed Constitution,
and it is equally true, that in those controversies between
individuals in which the great body of the people are likely to be
interested, that institution will remain precisely in the same
situation in which it is placed by the State constitutions, and will
be in no degree altered or influenced by the adoption of the plan
under consideration. The foundation of this assertion is, that the
national judiciary will have no cognizance of them, and of course
they will remain determinable as heretofore by the State courts
only, and in the manner which the State constitutions and laws
prescribe. All land causes, except where claims under the grants of
different States come into question, and all other controversies
between the citizens of the same State, unless where they depend
upon positive violations of the articles of union, by acts of the
State legislatures, will belong exclusively to the jurisdiction of
the State tribunals. Add to this, that admiralty causes, and almost
all those which are of equity jurisdiction, are determinable under
our own government without the intervention of a jury, and the
inference from the whole will be, that this institution, as it
exists with us at present, cannot possibly be affected to any great
extent by the proposed alteration in our system of government.
The friends and adversaries of the plan of the convention, if
they agree in nothing else, concur at least in the value they set
upon the trial by jury; or if there is any difference between them
it consists in this: the former regard it as a valuable safeguard
to liberty; the latter represent it as the very palladium of free
government. For my own part, the more the operation of the
institution has fallen under my observation, the more reason I have
discovered for holding it in high estimation; and it would be
altogether superfluous to examine to what extent it deserves to be
esteemed useful or essential in a representative republic, or how
much more merit it may be entitled to, as a defense against the
oppressions of an hereditary monarch, than as a barrier to the
tyranny of popular magistrates in a popular government. Discussions
of this kind would be more curious than beneficial, as all are
satisfied of the utility of the institution, and of its friendly
aspect to liberty. But I must acknowledge that I cannot readily
discern the inseparable connection between the existence of liberty,
and the trial by jury in civil cases. Arbitrary impeachments,
arbitrary methods of prosecuting pretended offenses, and arbitrary
punishments upon arbitrary convictions, have ever appeared to me to
be the great engines of judicial despotism; and these have all
relation to criminal proceedings. The trial by jury in criminal
cases, aided by the habeas-corpus act, seems therefore to be
alone concerned in the question. And both of these are provided
for, in the most ample manner, in the plan of the convention.
It has been observed, that trial by jury is a safeguard against
an oppressive exercise of the power of taxation. This observation
deserves to be canvassed.
It is evident that it can have no influence upon the
legislature, in regard to the AMOUNT of taxes to be laid, to the
OBJECTS upon which they are to be imposed, or to the RULE by which
they are to be apportioned. If it can have any influence,
therefore, it must be upon the mode of collection, and the conduct
of the officers intrusted with the execution of the revenue laws.
As to the mode of collection in this State, under our own
Constitution, the trial by jury is in most cases out of use. The
taxes are usually levied by the more summary proceeding of distress
and sale, as in cases of rent. And it is acknowledged on all hands,
that this is essential to the efficacy of the revenue laws. The
dilatory course of a trial at law to recover the taxes imposed on
individuals, would neither suit the exigencies of the public nor
promote the convenience of the citizens. It would often occasion an
accumulation of costs, more burdensome than the original sum of the
tax to be levied.
And as to the conduct of the officers of the revenue, the
provision in favor of trial by jury in criminal cases, will afford
the security aimed at. Wilful abuses of a public authority, to the
oppression of the subject, and every species of official extortion,
are offenses against the government, for which the persons who
commit them may be indicted and punished according to the
circumstances of the case.
The excellence of the trial by jury in civil cases appears to
depend on circumstances foreign to the preservation of liberty. The
strongest argument in its favor is, that it is a security against
corruption. As there is always more time and better opportunity to
tamper with a standing body of magistrates than with a jury summoned
for the occasion, there is room to suppose that a corrupt influence
would more easily find its way to the former than to the latter.
The force of this consideration is, however, diminished by others.
The sheriff, who is the summoner of ordinary juries, and the clerks
of courts, who have the nomination of special juries, are themselves
standing officers, and, acting individually, may be supposed more
accessible to the touch of corruption than the judges, who are a
collective body. It is not difficult to see, that it would be in
the power of those officers to select jurors who would serve the
purpose of the party as well as a corrupted bench. In the next
place, it may fairly be supposed, that there would be less
difficulty in gaining some of the jurors promiscuously taken from
the public mass, than in gaining men who had been chosen by the
government for their probity and good character. But making every
deduction for these considerations, the trial by jury must still be
a valuable check upon corruption. It greatly multiplies the
impediments to its success. As matters now stand, it would be
necessary to corrupt both court and jury; for where the jury have
gone evidently wrong, the court will generally grant a new trial,
and it would be in most cases of little use to practice upon the
jury, unless the court could be likewise gained. Here then is a
double security; and it will readily be perceived that this
complicated agency tends to preserve the purity of both institutions.
By increasing the obstacles to success, it discourages attempts to
seduce the integrity of either. The temptations to prostitution
which the judges might have to surmount, must certainly be much
fewer, while the co-operation of a jury is necessary, than they
might be, if they had themselves the exclusive determination of all
causes.
Notwithstanding, therefore, the doubts I have expressed, as to
the essentiality of trial by jury in civil cases to liberty, I admit
that it is in most cases, under proper regulations, an excellent
method of determining questions of property; and that on this
account alone it would be entitled to a constitutional provision in
its favor if it were possible to fix the limits within which it
ought to be comprehended. There is, however, in all cases, great
difficulty in this; and men not blinded by enthusiasm must be
sensible that in a federal government, which is a composition of
societies whose ideas and institutions in relation to the matter
materially vary from each other, that difficulty must be not a
little augmented. For my own part, at every new view I take of the
subject, I become more convinced of the reality of the obstacles
which, we are authoritatively informed, prevented the insertion of a
provision on this head in the plan of the convention.
The great difference between the limits of the jury trial in
different States is not generally understood; and as it must have
considerable influence on the sentence we ought to pass upon the
omission complained of in regard to this point, an explanation of it
is necessary. In this State, our judicial establishments resemble,
more nearly than in any other, those of Great Britain. We have
courts of common law, courts of probates (analogous in certain
matters to the spiritual courts in England), a court of admiralty
and a court of chancery. In the courts of common law only, the
trial by jury prevails, and this with some exceptions. In all the
others a single judge presides, and proceeds in general either
according to the course of the canon or civil law, without the aid
of a jury.1 In New Jersey, there is a court of chancery which
proceeds like ours, but neither courts of admiralty nor of probates,
in the sense in which these last are established with us. In that
State the courts of common law have the cognizance of those causes
which with us are determinable in the courts of admiralty and of
probates, and of course the jury trial is more extensive in New
Jersey than in New York. In Pennsylvania, this is perhaps still
more the case, for there is no court of chancery in that State, and
its common-law courts have equity jurisdiction. It has a court of
admiralty, but none of probates, at least on the plan of ours.
Delaware has in these respects imitated Pennsylvania. Maryland
approaches more nearly to New York, as does also Virginia, except
that the latter has a plurality of chancellors. North Carolina
bears most affinity to Pennsylvania; South Carolina to Virginia. I
believe, however, that in some of those States which have distinct
courts of admiralty, the causes depending in them are triable by
juries. In Georgia there are none but common-law courts, and an
appeal of course lies from the verdict of one jury to another, which
is called a special jury, and for which a particular mode of
appointment is marked out. In Connecticut, they have no distinct
courts either of chancery or of admiralty, and their courts of
probates have no jurisdiction of causes. Their common-law courts
have admiralty and, to a certain extent, equity jurisdiction. In
cases of importance, their General Assembly is the only court of
chancery. In Connecticut, therefore, the trial by jury extends in
PRACTICE further than in any other State yet mentioned. Rhode
Island is, I believe, in this particular, pretty much in the
situation of Connecticut. Massachusetts and New Hampshire, in
regard to the blending of law, equity, and admiralty jurisdictions,
are in a similar predicament. In the four Eastern States, the trial
by jury not only stands upon a broader foundation than in the other
States, but it is attended with a peculiarity unknown, in its full
extent, to any of them. There is an appeal OF COURSE from one jury
to another, till there have been two verdicts out of three on one
side.
From this sketch it appears that there is a material diversity,
as well in the modification as in the extent of the institution of
trial by jury in civil cases, in the several States; and from this
fact these obvious reflections flow: first, that no general rule
could have been fixed upon by the convention which would have
corresponded with the circumstances of all the States; and
secondly, that more or at least as much might have been hazarded by
taking the system of any one State for a standard, as by omitting a
provision altogether and leaving the matter, as has been done, to
legislative regulation.
The propositions which have been made for supplying the omission
have rather served to illustrate than to obviate the difficulty of
the thing. The minority of Pennsylvania have proposed this mode of
expression for the purpose ``Trial by jury shall be as
heretofore'' and this I maintain would be senseless and nugatory.
The United States, in their united or collective capacity, are the
OBJECT to which all general provisions in the Constitution must
necessarily be construed to refer. Now it is evident that though
trial by jury, with various limitations, is known in each State
individually, yet in the United States, AS SUCH, it is at this time
altogether unknown, because the present federal government has no
judiciary power whatever; and consequently there is no proper
antecedent or previous establishment to which the term HERETOFORE
could relate. It would therefore be destitute of a precise meaning,
and inoperative from its uncertainty.
As, on the one hand, the form of the provision would not fulfil
the intent of its proposers, so, on the other, if I apprehend that
intent rightly, it would be in itself inexpedient. I presume it to
be, that causes in the federal courts should be tried by jury, if,
in the State where the courts sat, that mode of trial would obtain
in a similar case in the State courts; that is to say, admiralty
causes should be tried in Connecticut by a jury, in New York without
one. The capricious operation of so dissimilar a method of trial in
the same cases, under the same government, is of itself sufficient
to indispose every wellregulated judgment towards it. Whether the
cause should be tried with or without a jury, would depend, in a
great number of cases, on the accidental situation of the court and
parties.
But this is not, in my estimation, the greatest objection. I
feel a deep and deliberate conviction that there are many cases in
which the trial by jury is an ineligible one. I think it so
particularly in cases which concern the public peace with foreign
nations that is, in most cases where the question turns wholly on
the laws of nations. Of this nature, among others, are all prize
causes. Juries cannot be supposed competent to investigations that
require a thorough knowledge of the laws and usages of nations; and
they will sometimes be under the influence of impressions which will
not suffer them to pay sufficient regard to those considerations of
public policy which ought to guide their inquiries. There would of
course be always danger that the rights of other nations might be
infringed by their decisions, so as to afford occasions of reprisal
and war. Though the proper province of juries be to determine
matters of fact, yet in most cases legal consequences are
complicated with fact in such a manner as to render a separation
impracticable.
It will add great weight to this remark, in relation to prize
causes, to mention that the method of determining them has been
thought worthy of particular regulation in various treaties between
different powers of Europe, and that, pursuant to such treaties,
they are determinable in Great Britain, in the last resort, before
the king himself, in his privy council, where the fact, as well as
the law, undergoes a re-examination. This alone demonstrates the
impolicy of inserting a fundamental provision in the Constitution
which would make the State systems a standard for the national
government in the article under consideration, and the danger of
encumbering the government with any constitutional provisions the
propriety of which is not indisputable.
My convictions are equally strong that great advantages result
from the separation of the equity from the law jurisdiction, and
that the causes which belong to the former would be improperly
committed to juries. The great and primary use of a court of equity
is to give relief IN EXTRAORDINARY CASES, which are EXCEPTIONS2
to general rules. To unite the jurisdiction of such cases with the
ordinary jurisdiction, must have a tendency to unsettle the general
rules, and to subject every case that arises to a SPECIAL
determination; while a separation of the one from the other has the
contrary effect of rendering one a sentinel over the other, and of
keeping each within the expedient limits. Besides this, the
circumstances that constitute cases proper for courts of equity are
in many instances so nice and intricate, that they are incompatible
with the genius of trials by jury. They require often such long,
deliberate, and critical investigation as would be impracticable to
men called from their occupations, and obliged to decide before they
were permitted to return to them. The simplicity and expedition
which form the distinguishing characters of this mode of trial
require that the matter to be decided should be reduced to some
single and obvious point; while the litigations usual in chancery
frequently comprehend a long train of minute and independent
particulars.
It is true that the separation of the equity from the legal
jurisdiction is peculiar to the English system of jurisprudence:
which is the model that has been followed in several of the States.
But it is equally true that the trial by jury has been unknown in
every case in which they have been united. And the separation is
essential to the preservation of that institution in its pristine
purity. The nature of a court of equity will readily permit the
extension of its jurisdiction to matters of law; but it is not a
little to be suspected, that the attempt to extend the jurisdiction
of the courts of law to matters of equity will not only be
unproductive of the advantages which may be derived from courts of
chancery, on the plan upon which they are established in this State,
but will tend gradually to change the nature of the courts of law,
and to undermine the trial by jury, by introducing questions too
complicated for a decision in that mode.
These appeared to be conclusive reasons against incorporating
the systems of all the States, in the formation of the national
judiciary, according to what may be conjectured to have been the
attempt of the Pennsylvania minority. Let us now examine how far
the proposition of Massachusetts is calculated to remedy the
supposed defect.
It is in this form: ``In civil actions between citizens of
different States, every issue of fact, arising in ACTIONS AT COMMON
LAW, may be tried by a jury if the parties, or either of them
request it.''
This, at best, is a proposition confined to one description of
causes; and the inference is fair, either that the Massachusetts
convention considered that as the only class of federal causes, in
which the trial by jury would be proper; or that if desirous of a
more extensive provision, they found it impracticable to devise one
which would properly answer the end. If the first, the omission of
a regulation respecting so partial an object can never be considered
as a material imperfection in the system. If the last, it affords a
strong corroboration of the extreme difficulty of the thing.
But this is not all: if we advert to the observations already
made respecting the courts that subsist in the several States of the
Union, and the different powers exercised by them, it will appear
that there are no expressions more vague and indeterminate than
those which have been employed to characterize THAT species of
causes which it is intended shall be entitled to a trial by jury.
In this State, the boundaries between actions at common law and
actions of equitable jurisdiction, are ascertained in conformity to
the rules which prevail in England upon that subject. In many of
the other States the boundaries are less precise. In some of them
every cause is to be tried in a court of common law, and upon that
foundation every action may be considered as an action at common
law, to be determined by a jury, if the parties, or either of them,
choose it. Hence the same irregularity and confusion would be
introduced by a compliance with this proposition, that I have
already noticed as resulting from the regulation proposed by the
Pennsylvania minority. In one State a cause would receive its
determination from a jury, if the parties, or either of them,
requested it; but in another State, a cause exactly similar to the
other, must be decided without the intervention of a jury, because
the State judicatories varied as to common-law jurisdiction.
It is obvious, therefore, that the Massachusetts proposition,
upon this subject cannot operate as a general regulation, until some
uniform plan, with respect to the limits of common-law and equitable
jurisdictions, shall be adopted by the different States. To devise
a plan of that kind is a task arduous in itself, and which it would
require much time and reflection to mature. It would be extremely
difficult, if not impossible, to suggest any general regulation that
would be acceptable to all the States in the Union, or that would
perfectly quadrate with the several State institutions.
It may be asked, Why could not a reference have been made to the
constitution of this State, taking that, which is allowed by me to
be a good one, as a standard for the United States? I answer that
it is not very probable the other States would entertain the same
opinion of our institutions as we do ourselves. It is natural to
suppose that they are hitherto more attached to their own, and that
each would struggle for the preference. If the plan of taking one
State as a model for the whole had been thought of in the
convention, it is to be presumed that the adoption of it in that
body would have been rendered difficult by the predilection of each
representation in favor of its own government; and it must be
uncertain which of the States would have been taken as the model.
It has been shown that many of them would be improper ones. And I
leave it to conjecture, whether, under all circumstances, it is most
likely that New York, or some other State, would have been preferred.
But admit that a judicious selection could have been effected in
the convention, still there would have been great danger of jealousy
and disgust in the other States, at the partiality which had been
shown to the institutions of one. The enemies of the plan would
have been furnished with a fine pretext for raising a host of local
prejudices against it, which perhaps might have hazarded, in no
inconsiderable degree, its final establishment.
To avoid the embarrassments of a definition of the cases which
the trial by jury ought to embrace, it is sometimes suggested by men
of enthusiastic tempers, that a provision might have been inserted
for establishing it in all cases whatsoever. For this I believe, no
precedent is to be found in any member of the Union; and the
considerations which have been stated in discussing the proposition
of the minority of Pennsylvania, must satisfy every sober mind that
the establishment of the trial by jury in ALL cases would have been
an unpardonable error in the plan.
In short, the more it is considered the more arduous will appear
the task of fashioning a provision in such a form as not to express
too little to answer the purpose, or too much to be advisable; or
which might not have opened other sources of opposition to the great
and essential object of introducing a firm national government.
I cannot but persuade myself, on the other hand, that the
different lights in which the subject has been placed in the course
of these observations, will go far towards removing in candid minds
the apprehensions they may have entertained on the point. They have
tended to show that the security of liberty is materially concerned
only in the trial by jury in criminal cases, which is provided for
in the most ample manner in the plan of the convention; that even
in far the greatest proportion of civil cases, and those in which
the great body of the community is interested, that mode of trial
will remain in its full force, as established in the State
constitutions, untouched and unaffected by the plan of the
convention; that it is in no case abolished3 by that plan; and
that there are great if not insurmountable difficulties in the way
of making any precise and proper provision for it in a Constitution
for the United States.
The best judges of the matter will be the least anxious for a
constitutional establishment of the trial by jury in civil cases,
and will be the most ready to admit that the changes which are
continually happening in the affairs of society may render a
different mode of determining questions of property preferable in
many cases in which that mode of trial now prevails. For my part, I
acknowledge myself to be convinced that even in this State it might
be advantageously extended to some cases to which it does not at
present apply, and might as advantageously be abridged in others.
It is conceded by all reasonable men that it ought not to obtain in
all cases. The examples of innovations which contract its ancient
limits, as well in these States as in Great Britain, afford a strong
presumption that its former extent has been found inconvenient, and
give room to suppose that future experience may discover the
propriety and utility of other exceptions. I suspect it to be
impossible in the nature of the thing to fix the salutary point at
which the operation of the institution ought to stop, and this is
with me a strong argument for leaving the matter to the discretion
of the legislature.
This is now clearly understood to be the case in Great Britain,
and it is equally so in the State of Connecticut; and yet it may be
safely affirmed that more numerous encroachments have been made upon
the trial by jury in this State since the Revolution, though
provided for by a positive article of our constitution, than has
happened in the same time either in Connecticut or Great Britain.
It may be added that these encroachments have generally originated
with the men who endeavor to persuade the people they are the
warmest defenders of popular liberty, but who have rarely suffered
constitutional obstacles to arrest them in a favorite career. The
truth is that the general GENIUS of a government is all that can be
substantially relied upon for permanent effects. Particular
provisions, though not altogether useless, have far less virtue and
efficacy than are commonly ascribed to them; and the want of them
will never be, with men of sound discernment, a decisive objection
to any plan which exhibits the leading characters of a good
government.
It certainly sounds not a little harsh and extraordinary to
affirm that there is no security for liberty in a Constitution which
expressly establishes the trial by jury in criminal cases, because
it does not do it in civil also; while it is a notorious fact that
Connecticut, which has been always regarded as the most popular
State in the Union, can boast of no constitutional provision for
either.
PUBLIUS.
1 It has been erroneously insinuated, with regard to the court
of chancery, that this court generally tries disputed facts by a
jury. The truth is, that references to a jury in that court rarely
happen, and are in no case necessary but where the validity of a
devise of land comes into question.
2 It is true that the principles by which that relief is
governed are now reduced to a regular system; but it is not the
less true that they are in the main applicable to SPECIAL
circumstances, which form exceptions to general rules.
3 Vide No. 81, in which the supposition of its being
abolished by the appellate jurisdiction in matters of fact being
vested in the Supreme Court, is examined and refuted.

FEDERALIST No. 84

Certain General and Miscellaneous Objections to the Constitution
Considered and Answered
From McLEAN's Edition, New York.

HAMILTON

To the People of the State of New York:
IN THE course of the foregoing review of the Constitution, I
have taken notice of, and endeavored to answer most of the
objections which have appeared against it. There, however, remain a
few which either did not fall naturally under any particular head or
were forgotten in their proper places. These shall now be
discussed; but as the subject has been drawn into great length, I
shall so far consult brevity as to comprise all my observations on
these miscellaneous points in a single paper.
The most considerable of the remaining objections is that the
plan of the convention contains no bill of rights. Among other
answers given to this, it has been upon different occasions remarked
that the constitutions of several of the States are in a similar
predicament. I add that New York is of the number. And yet the
opposers of the new system, in this State, who profess an unlimited
admiration for its constitution, are among the most intemperate
partisans of a bill of rights. To justify their zeal in this
matter, they allege two things: one is that, though the
constitution of New York has no bill of rights prefixed to it, yet
it contains, in the body of it, various provisions in favor of
particular privileges and rights, which, in substance amount to the
same thing; the other is, that the Constitution adopts, in their
full extent, the common and statute law of Great Britain, by which
many other rights, not expressed in it, are equally secured.
To the first I answer, that the Constitution proposed by the
convention contains, as well as the constitution of this State, a
number of such provisions.
Independent of those which relate to the structure of the
government, we find the following: Article 1, section 3, clause 7
``Judgment in cases of impeachment shall not extend further than to
removal from office, and disqualification to hold and enjoy any
office of honor, trust, or profit under the United States; but the
party convicted shall, nevertheless, be liable and subject to
indictment, trial, judgment, and punishment according to law.''
Section 9, of the same article, clause 2 ``The privilege of the
writ of habeas corpus shall not be suspended, unless when in
cases of rebellion or invasion the public safety may require it.''
Clause 3 ``No bill of attainder or ex-post-facto law shall be
passed.'' Clause 7 ``No title of nobility shall be granted by the
United States; and no person holding any office of profit or trust
under them, shall, without the consent of the Congress, accept of
any present, emolument, office, or title of any kind whatever, from
any king, prince, or foreign state.'' Article 3, section 2, clause
3 ``The trial of all crimes, except in cases of impeachment, shall
be by jury; and such trial shall be held in the State where the
said crimes shall have been committed; but when not committed
within any State, the trial shall be at such place or places as the
Congress may by law have directed.'' Section 3, of the same
article ``Treason against the United States shall consist only in
levying war against them, or in adhering to their enemies, giving
them aid and comfort. No person shall be convicted of treason,
unless on the testimony of two witnesses to the same overt act, or
on confession in open court.'' And clause 3, of the same
section ``The Congress shall have power to declare the punishment of
treason; but no attainder of treason shall work corruption of
blood, or forfeiture, except during the life of the person attainted.''
It may well be a question, whether these are not, upon the
whole, of equal importance with any which are to be found in the
constitution of this State. The establishment of the writ of
habeas corpus, the prohibition of ex-post-facto laws, and of
TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN
OUR CONSTITUTION, are perhaps greater securities to liberty and
republicanism than any it contains. The creation of crimes after
the commission of the fact, or, in other words, the subjecting of
men to punishment for things which, when they were done, were
breaches of no law, and the practice of arbitrary imprisonments,
have been, in all ages, the favorite and most formidable instruments
of tyranny. The observations of the judicious Blackstone,1 in
reference to the latter, are well worthy of recital: ``To bereave a
man of life, Usays he,e or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious an act
of despotism, as must at once convey the alarm of tyranny throughout
the whole nation; but confinement of the person, by secretly
hurrying him to jail, where his sufferings are unknown or forgotten,
is a less public, a less striking, and therefore A MORE DANGEROUS
ENGINE of arbitrary government.'' And as a remedy for this fatal
evil he is everywhere peculiarly emphatical in his encomiums on the
habeas-corpus act, which in one place he calls ``the BULWARK of
the British Constitution.''2
Nothing need be said to illustrate the importance of the
prohibition of titles of nobility. This may truly be denominated
the corner-stone of republican government; for so long as they are
excluded, there can never be serious danger that the government will
be any other than that of the people.
To the second that is, to the pretended establishment of the
common and state law by the Constitution, I answer, that they are
expressly made subject ``to such alterations and provisions as the
legislature shall from time to time make concerning the same.''
They are therefore at any moment liable to repeal by the ordinary
legislative power, and of course have no constitutional sanction.
The only use of the declaration was to recognize the ancient law
and to remove doubts which might have been occasioned by the
Revolution. This consequently can be considered as no part of a
declaration of rights, which under our constitutions must be
intended as limitations of the power of the government itself.
It has been several times truly remarked that bills of rights
are, in their origin, stipulations between kings and their subjects,
abridgements of prerogative in favor of privilege, reservations of
rights not surrendered to the prince. Such was MAGNA CHARTA,
obtained by the barons, sword in hand, from King John. Such were
the subsequent confirmations of that charter by succeeding princes.
Such was the PETITION OF RIGHT assented to by Charles I., in the
beginning of his reign. Such, also, was the Declaration of Right
presented by the Lords and Commons to the Prince of Orange in 1688,
and afterwards thrown into the form of an act of parliament called
the Bill of Rights. It is evident, therefore, that, according to
their primitive signification, they have no application to
constitutions professedly founded upon the power of the people, and
executed by their immediate representatives and servants. Here, in
strictness, the people surrender nothing; and as they retain every
thing they have no need of particular reservations. ``WE, THE
PEOPLE of the United States, to secure the blessings of liberty to
ourselves and our posterity, do ORDAIN and ESTABLISH this
Constitution for the United States of America.'' Here is a better
recognition of popular rights, than volumes of those aphorisms which
make the principal figure in several of our State bills of rights,
and which would sound much better in a treatise of ethics than in a
constitution of government.
But a minute detail of particular rights is certainly far less
applicable to a Constitution like that under consideration, which is
merely intended to regulate the general political interests of the
nation, than to a constitution which has the regulation of every
species of personal and private concerns. If, therefore, the loud
clamors against the plan of the convention, on this score, are well
founded, no epithets of reprobation will be too strong for the
constitution of this State. But the truth is, that both of them
contain all which, in relation to their objects, is reasonably to be
desired.
I go further, and affirm that bills of rights, in the sense and
to the extent in which they are contended for, are not only
unnecessary in the proposed Constitution, but would even be
dangerous. They would contain various exceptions to powers not
granted; and, on this very account, would afford a colorable
pretext to claim more than were granted. For why declare that
things shall not be done which there is no power to do? Why, for
instance, should it be said that the liberty of the press shall not
be restrained, when no power is given by which restrictions may be
imposed? I will not contend that such a provision would confer a
regulating power; but it is evident that it would furnish, to men
disposed to usurp, a plausible pretense for claiming that power.
They might urge with a semblance of reason, that the Constitution
ought not to be charged with the absurdity of providing against the
abuse of an authority which was not given, and that the provision
against restraining the liberty of the press afforded a clear
implication, that a power to prescribe proper regulations concerning
it was intended to be vested in the national government. This may
serve as a specimen of the numerous handles which would be given to
the doctrine of constructive powers, by the indulgence of an
injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much as has been
said, I cannot forbear adding a remark or two: in the first place,
I observe, that there is not a syllable concerning it in the
constitution of this State; in the next, I contend, that whatever
has been said about it in that of any other State, amounts to
nothing. What signifies a declaration, that ``the liberty of the
press shall be inviolably preserved''? What is the liberty of the
press? Who can give it any definition which would not leave the
utmost latitude for evasion? I hold it to be impracticable; and
from this I infer, that its security, whatever fine declarations may
be inserted in any constitution respecting it, must altogether
depend on public opinion, and on the general spirit of the people
and of the government.3 And here, after all, as is intimated
upon another occasion, must we seek for the only solid basis of all
our rights.
There remains but one other view of this matter to conclude the
point. The truth is, after all the declamations we have heard, that
the Constitution is itself, in every rational sense, and to every
useful purpose, A BILL OF RIGHTS. The several bills of rights in
Great Britain form its Constitution, and conversely the constitution
of each State is its bill of rights. And the proposed Constitution,
if adopted, will be the bill of rights of the Union. Is it one
object of a bill of rights to declare and specify the political
privileges of the citizens in the structure and administration of
the government? This is done in the most ample and precise manner
in the plan of the convention; comprehending various precautions
for the public security, which are not to be found in any of the
State constitutions. Is another object of a bill of rights to
define certain immunities and modes of proceeding, which are
relative to personal and private concerns? This we have seen has
also been attended to, in a variety of cases, in the same plan.
Adverting therefore to the substantial meaning of a bill of rights,
it is absurd to allege that it is not to be found in the work of the
convention. It may be said that it does not go far enough, though
it will not be easy to make this appear; but it can with no
propriety be contended that there is no such thing. It certainly
must be immaterial what mode is observed as to the order of
declaring the rights of the citizens, if they are to be found in any
part of the instrument which establishes the government. And hence
it must be apparent, that much of what has been said on this subject
rests merely on verbal and nominal distinctions, entirely foreign
from the substance of the thing.
Another objection which has been made, and which, from the
frequency of its repetition, it is to be presumed is relied on, is
of this nature: ``It is improper,'' say the objectors, ``to confer such
large powers, as are proposed, upon the national government, because
the seat of that government must of necessity be too remote from
many of the States to admit of a proper knowledge on the part of the
constituent, of the conduct of the representative body.'' This
argument, if it proves any thing, proves that there ought to be no
general government whatever. For the powers which, it seems to be
agreed on all hands, ought to be vested in the Union, cannot be
safely intrusted to a body which is not under every requisite
control. But there are satisfactory reasons to show that the
objection is in reality not well founded. There is in most of the
arguments which relate to distance a palpable illusion of the
imagination. What are the sources of information by which the
people in Montgomery County must regulate their judgment of the
conduct of their representatives in the State legislature? Of
personal observation they can have no benefit. This is confined to
the citizens on the spot. They must therefore depend on the
information of intelligent men, in whom they confide; and how must
these men obtain their information? Evidently from the complexion
of public measures, from the public prints, from correspondences
with their representatives, and with other persons who reside at the
place of their deliberations. This does not apply to Montgomery
County only, but to all the counties at any considerable distance
from the seat of government.
It is equally evident that the same sources of information would
be open to the people in relation to the conduct of their
representatives in the general government, and the impediments to a
prompt communication which distance may be supposed to create, will
be overbalanced by the effects of the vigilance of the State
governments. The executive and legislative bodies of each State
will be so many sentinels over the persons employed in every
department of the national administration; and as it will be in
their power to adopt and pursue a regular and effectual system of
intelligence, they can never be at a loss to know the behavior of
those who represent their constituents in the national councils, and
can readily communicate the same knowledge to the people. Their
disposition to apprise the community of whatever may prejudice its
interests from another quarter, may be relied upon, if it were only
from the rivalship of power. And we may conclude with the fullest
assurance that the people, through that channel, will be better
informed of the conduct of their national representatives, than they
can be by any means they now possess of that of their State
representatives.
It ought also to be remembered that the citizens who inhabit the
country at and near the seat of government will, in all questions
that affect the general liberty and prosperity, have the same
interest with those who are at a distance, and that they will stand
ready to sound the alarm when necessary, and to point out the actors
in any pernicious project. The public papers will be expeditious
messengers of intelligence to the most remote inhabitants of the
Union.
Among the many curious objections which have appeared against
the proposed Constitution, the most extraordinary and the least
colorable is derived from the want of some provision respecting the
debts due TO the United States. This has been represented as a
tacit relinquishment of those debts, and as a wicked contrivance to
screen public defaulters. The newspapers have teemed with the most
inflammatory railings on this head; yet there is nothing clearer
than that the suggestion is entirely void of foundation, the
offspring of extreme ignorance or extreme dishonesty. In addition
to the remarks I have made upon the subject in another place, I
shall only observe that as it is a plain dictate of common-sense, so
it is also an established doctrine of political law, that ``STATES
NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY OF
THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT.''4
The last objection of any consequence, which I at present
recollect, turns upon the article of expense. If it were even true,
that the adoption of the proposed government would occasion a
considerable increase of expense, it would be an objection that
ought to have no weight against the plan.
The great bulk of the citizens of America are with reason
convinced, that Union is the basis of their political happiness.
Men of sense of all parties now, with few exceptions, agree that it
cannot be preserved under the present system, nor without radical
alterations; that new and extensive powers ought to be granted to
the national head, and that these require a different organization
of the federal government a single body being an unsafe depositary
of such ample authorities. In conceding all this, the question of
expense must be given up; for it is impossible, with any degree of
safety, to narrow the foundation upon which the system is to stand.
The two branches of the legislature are, in the first instance, to
consist of only sixty-five persons, which is the same number of
which Congress, under the existing Confederation, may be composed.
It is true that this number is intended to be increased; but this
is to keep pace with the progress of the population and resources of
the country. It is evident that a less number would, even in the
first instance, have been unsafe, and that a continuance of the
present number would, in a more advanced stage of population, be a
very inadequate representation of the people.
Whence is the dreaded augmentation of expense to spring? One
source indicated, is the multiplication of offices under the new
government. Let us examine this a little.
It is evident that the principal departments of the
administration under the present government, are the same which will
be required under the new. There are now a Secretary of War, a
Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a
Board of Treasury, consisting of three persons, a Treasurer,
assistants, clerks, etc. These officers are indispensable under any
system, and will suffice under the new as well as the old. As to
ambassadors and other ministers and agents in foreign countries, the
proposed Constitution can make no other difference than to render
their characters, where they reside, more respectable, and their
services more useful. As to persons to be employed in the
collection of the revenues, it is unquestionably true that these
will form a very considerable addition to the number of federal
officers; but it will not follow that this will occasion an
increase of public expense. It will be in most cases nothing more
than an exchange of State for national officers. In the collection
of all duties, for instance, the persons employed will be wholly of
the latter description. The States individually will stand in no
need of any for this purpose. What difference can it make in point
of expense to pay officers of the customs appointed by the State or
by the United States? There is no good reason to suppose that
either the number or the salaries of the latter will be greater than
those of the former.
Where then are we to seek for those additional articles of
expense which are to swell the account to the enormous size that has
been represented to us? The chief item which occurs to me respects
the support of the judges of the United States. I do not add the
President, because there is now a president of Congress, whose
expenses may not be far, if any thing, short of those which will be
incurred on account of the President of the United States. The
support of the judges will clearly be an extra expense, but to what
extent will depend on the particular plan which may be adopted in
regard to this matter. But upon no reasonable plan can it amount to
a sum which will be an object of material consequence.
Let us now see what there is to counterbalance any extra expense
that may attend the establishment of the proposed government. The
first thing which presents itself is that a great part of the
business which now keeps Congress sitting through the year will be
transacted by the President. Even the management of foreign
negotiations will naturally devolve upon him, according to general
principles concerted with the Senate, and subject to their final
concurrence. Hence it is evident that a portion of the year will
suffice for the session of both the Senate and the House of
Representatives; we may suppose about a fourth for the latter and a
third, or perhaps half, for the former. The extra business of
treaties and appointments may give this extra occupation to the
Senate. From this circumstance we may infer that, until the House
of Representatives shall be increased greatly beyond its present
number, there will be a considerable saving of expense from the
difference between the constant session of the present and the
temporary session of the future Congress.
But there is another circumstance of great importance in the
view of economy. The business of the United States has hitherto
occupied the State legislatures, as well as Congress. The latter
has made requisitions which the former have had to provide for.
Hence it has happened that the sessions of the State legislatures
have been protracted greatly beyond what was necessary for the
execution of the mere local business of the States. More than half
their time has been frequently employed in matters which related to
the United States. Now the members who compose the legislatures of
the several States amount to two thousand and upwards, which number
has hitherto performed what under the new system will be done in the
first instance by sixty-five persons, and probably at no future
period by above a fourth or fifth of that number. The Congress
under the proposed government will do all the business of the United
States themselves, without the intervention of the State
legislatures, who thenceforth will have only to attend to the
affairs of their particular States, and will not have to sit in any
proportion as long as they have heretofore done. This difference in
the time of the sessions of the State legislatures will be clear
gain, and will alone form an article of saving, which may be
regarded as an equivalent for any additional objects of expense that
may be occasioned by the adoption of the new system.
The result from these observations is that the sources of
additional expense from the establishment of the proposed
Constitution are much fewer than may have been imagined; that they
are counterbalanced by considerable objects of saving; and that
while it is questionable on which side the scale will preponderate,
it is certain that a government less expensive would be incompetent
to the purposes of the Union.
PUBLIUS.
1. Vide Blackstone's ``Commentaries,'' vol. 1., p. 136.
2. Vide Blackstone's ``Commentaries,'' vol. iv., p. 438.
3. To show that there is a power in the Constitution by which
the liberty of the press may be affected, recourse has been had to
the power of taxation. It is said that duties may be laid upon the
publications so high as to amount to a prohibition. I know not by
what logic it could be maintained, that the declarations in the
State constitutions, in favor of the freedom of the press, would be
a constitutional impediment to the imposition of duties upon
publications by the State legislatures. It cannot certainly be
pretended that any degree of duties, however low, would be an
abridgment of the liberty of the press. We know that newspapers
are taxed in Great Britain, and yet it is notorious that the press
nowhere enjoys greater liberty than in that country. And if duties
of any kind may be laid without a violation of that liberty, it is
evident that the extent must depend on legislative discretion,
respecting the liberty of the press, will give it no greater
security than it will have without them. The same invasions of it
may be effected under the State constitutions which contain those
declarations through the means of taxation, as under the proposed
Constitution, which has nothing of the kind. It would be quite as
significant to declare that government ought to be free, that taxes
ought not to be excessive, etc., as that the liberty of the press
ought not to be restrained.

FEDERALIST No. 85

Concluding Remarks
From MCLEAN's Edition, New York.

HAMILTON

To the People of the State of New York:
ACCORDING to the formal division of the subject of these papers,
announced in my first number, there would appear still to remain for
discussion two points: ``the analogy of the proposed government to
your own State constitution,'' and ``the additional security which
its adoption will afford to republican government, to liberty, and
to property.'' But these heads have been so fully anticipated and
exhausted in the progress of the work, that it would now scarcely be
possible to do any thing more than repeat, in a more dilated form,
what has been heretofore said, which the advanced stage of the
question, and the time already spent upon it, conspire to forbid.
It is remarkable, that the resemblance of the plan of the
convention to the act which organizes the government of this State
holds, not less with regard to many of the supposed defects, than to
the real excellences of the former. Among the pretended defects are
the re-eligibility of the Executive, the want of a council, the
omission of a formal bill of rights, the omission of a provision
respecting the liberty of the press. These and several others which
have been noted in the course of our inquiries are as much
chargeable on the existing constitution of this State, as on the one
proposed for the Union; and a man must have slender pretensions to
consistency, who can rail at the latter for imperfections which he
finds no difficulty in excusing in the former. Nor indeed can there
be a better proof of the insincerity and affectation of some of the
zealous adversaries of the plan of the convention among us, who
profess to be the devoted admirers of the government under which
they live, than the fury with which they have attacked that plan,
for matters in regard to which our own constitution is equally or
perhaps more vulnerable.
The additional securities to republican government, to liberty
and to property, to be derived from the adoption of the plan under
consideration, consist chiefly in the restraints which the
preservation of the Union will impose on local factions and
insurrections, and on the ambition of powerful individuals in single
States, who may acquire credit and influence enough, from leaders
and favorites, to become the despots of the people; in the
diminution of the opportunities to foreign intrigue, which the
dissolution of the Confederacy would invite and facilitate; in the
prevention of extensive military establishments, which could not
fail to grow out of wars between the States in a disunited
situation; in the express guaranty of a republican form of
government to each; in the absolute and universal exclusion of
titles of nobility; and in the precautions against the repetition
of those practices on the part of the State governments which have
undermined the foundations of property and credit, have planted
mutual distrust in the breasts of all classes of citizens, and have
occasioned an almost universal prostration of morals.
Thus have I, fellow-citizens, executed the task I had assigned
to myself; with what success, your conduct must determine. I trust
at least you will admit that I have not failed in the assurance I
gave you respecting the spirit with which my endeavors should be
conducted. I have addressed myself purely to your judgments, and
have studiously avoided those asperities which are too apt to
disgrace political disputants of all parties, and which have been
not a little provoked by the language and conduct of the opponents
of the Constitution. The charge of a conspiracy against the
liberties of the people, which has been indiscriminately brought
against the advocates of the plan, has something in it too wanton
and too malignant, not to excite the indignation of every man who
feels in his own bosom a refutation of the calumny. The perpetual
changes which have been rung upon the wealthy, the well-born, and
the great, have been such as to inspire the disgust of all sensible
men. And the unwarrantable concealments and misrepresentations
which have been in various ways practiced to keep the truth from the
public eye, have been of a nature to demand the reprobation of all
honest men. It is not impossible that these circumstances may have
occasionally betrayed me into intemperances of expression which I
did not intend; it is certain that I have frequently felt a
struggle between sensibility and moderation; and if the former has
in some instances prevailed, it must be my excuse that it has been
neither often nor much.
Let us now pause and ask ourselves whether, in the course of
these papers, the proposed Constitution has not been satisfactorily
vindicated from the aspersions thrown upon it; and whether it has
not been shown to be worthy of the public approbation, and necessary
to the public safety and prosperity. Every man is bound to answer
these questions to himself, according to the best of his conscience
and understanding, and to act agreeably to the genuine and sober
dictates of his judgment. This is a duty from which nothing can
give him a dispensation. 'T is one that he is called upon, nay,
constrained by all the obligations that form the bands of society,
to discharge sincerely and honestly. No partial motive, no
particular interest, no pride of opinion, no temporary passion or
prejudice, will justify to himself, to his country, or to his
posterity, an improper election of the part he is to act. Let him
beware of an obstinate adherence to party; let him reflect that the
object upon which he is to decide is not a particular interest of
the community, but the very existence of the nation; and let him
remember that a majority of America has already given its sanction
to the plan which he is to approve or reject.
I shall not dissemble that I feel an entire confidence in the
arguments which recommend the proposed system to your adoption, and
that I am unable to discern any real force in those by which it has
been opposed. I am persuaded that it is the best which our
political situation, habits, and opinions will admit, and superior
to any the revolution has produced.
Concessions on the part of the friends of the plan, that it has
not a claim to absolute perfection, have afforded matter of no small
triumph to its enemies. ``Why,'' say they, ``should we adopt an
imperfect thing? Why not amend it and make it perfect before it is
irrevocably established?'' This may be plausible enough, but it is
only plausible. In the first place I remark, that the extent of
these concessions has been greatly exaggerated. They have been
stated as amounting to an admission that the plan is radically
defective, and that without material alterations the rights and the
interests of the community cannot be safely confided to it. This,
as far as I have understood the meaning of those who make the
concessions, is an entire perversion of their sense. No advocate of
the measure can be found, who will not declare as his sentiment,
that the system, though it may not be perfect in every part, is,
upon the whole, a good one; is the best that the present views and
circumstances of the country will permit; and is such an one as
promises every species of security which a reasonable people can
desire.
I answer in the next place, that I should esteem it the extreme
of imprudence to prolong the precarious state of our national
affairs, and to expose the Union to the jeopardy of successive
experiments, in the chimerical pursuit of a perfect plan. I never
expect to see a perfect work from imperfect man. The result of the
deliberations of all collective bodies must necessarily be a
compound, as well of the errors and prejudices, as of the good sense
and wisdom, of the individuals of whom they are composed. The
compacts which are to embrace thirteen distinct States in a common
bond of amity and union, must as necessarily be a compromise of as
many dissimilar interests and inclinations. How can perfection
spring from such materials?
The reasons assigned in an excellent little pamphlet lately
published in this city,1 are unanswerable to show the utter
improbability of assembling a new convention, under circumstances in
any degree so favorable to a happy issue, as those in which the late
convention met, deliberated, and concluded. I will not repeat the
arguments there used, as I presume the production itself has had an
extensive circulation. It is certainly well worthy the perusal of
every friend to his country. There is, however, one point of light
in which the subject of amendments still remains to be considered,
and in which it has not yet been exhibited to public view. I cannot
resolve to conclude without first taking a survey of it in this
aspect.
It appears to me susceptible of absolute demonstration, that it
will be far more easy to obtain subsequent than previous amendments
to the Constitution. The moment an alteration is made in the
present plan, it becomes, to the purpose of adoption, a new one, and
must undergo a new decision of each State. To its complete
establishment throughout the Union, it will therefore require the
concurrence of thirteen States. If, on the contrary, the
Constitution proposed should once be ratified by all the States as
it stands, alterations in it may at any time be effected by nine
States. Here, then, the chances are as thirteen to nine2 in
favor of subsequent amendment, rather than of the original adoption
of an entire system.
This is not all. Every Constitution for the United States must
inevitably consist of a great variety of particulars, in which
thirteen independent States are to be accommodated in their
interests or opinions of interest. We may of course expect to see,
in any body of men charged with its original formation, very
different combinations of the parts upon different points. Many of
those who form a majority on one question, may become the minority
on a second, and an association dissimilar to either may constitute
the majority on a third. Hence the necessity of moulding and
arranging all the particulars which are to compose the whole, in
such a manner as to satisfy all the parties to the compact; and
hence, also, an immense multiplication of difficulties and
casualties in obtaining the collective assent to a final act. The
degree of that multiplication must evidently be in a ratio to the
number of particulars and the number of parties.
But every amendment to the Constitution, if once established,
would be a single proposition, and might be brought forward singly.
There would then be no necessity for management or compromise, in
relation to any other point no giving nor taking. The will of the
requisite number would at once bring the matter to a decisive issue.
And consequently, whenever nine, or rather ten States, were united
in the desire of a particular amendment, that amendment must
infallibly take place. There can, therefore, be no comparison
between the facility of affecting an amendment, and that of
establishing in the first instance a complete Constitution.
In opposition to the probability of subsequent amendments, it
has been urged that the persons delegated to the administration of
the national government will always be disinclined to yield up any
portion of the authority of which they were once possessed. For my
own part I acknowledge a thorough conviction that any amendments
which may, upon mature consideration, be thought useful, will be
applicable to the organization of the government, not to the mass of
its powers; and on this account alone, I think there is no weight
in the observation just stated. I also think there is little weight
in it on another account. The intrinsic difficulty of governing
thirteen States at any rate, independent of calculations upon an
ordinary degree of public spirit and integrity, will, in my opinion
constantly impose on the national rulers the necessity of a spirit
of accommodation to the reasonable expectations of their
constituents. But there is yet a further consideration, which
proves beyond the possibility of a doubt, that the observation is
futile. It is this that the national rulers, whenever nine States
concur, will have no option upon the subject. By the fifth article
of the plan, the Congress will be obliged ``on the application of the
legislatures of two thirds of the States, which at present amount to
nine, to call a convention for proposing amendments, which shall be
valid, to all intents and purposes, as part of the Constitution,
when ratified by the legislatures of three fourths of the States, or
by conventions in three fourths thereof.'' The words of this
article are peremptory. The Congress ``shall call a convention.''
Nothing in this particular is left to the discretion of that body.
And of consequence, all the declamation about the disinclination to
a change vanishes in air. Nor however difficult it may be supposed
to unite two thirds or three fourths of the State legislatures, in
amendments which may affect local interests, can there be any room
to apprehend any such difficulty in a union on points which are
merely relative to the general liberty or security of the people.
We may safely rely on the disposition of the State legislatures to
erect barriers against the encroachments of the national authority.
If the foregoing argument is a fallacy, certain it is that I am
myself deceived by it, for it is, in my conception, one of those
rare instances in which a political truth can be brought to the test
of a mathematical demonstration. Those who see the matter in the
same light with me, however zealous they may be for amendments, must
agree in the propriety of a previous adoption, as the most direct
road to their own object.
The zeal for attempts to amend, prior to the establishment of
the Constitution, must abate in every man who is ready to accede to
the truth of the following observations of a writer equally solid
and ingenious: ``To balance a large state or society Usays hee,
whether monarchical or republican, on general laws, is a work of so
great difficulty, that no human genius, however comprehensive, is
able, by the mere dint of reason and reflection, to effect it. The
judgments of many must unite in the work; experience must guide
their labor; time must bring it to perfection, and the feeling of
inconveniences must correct the mistakes which they INEVITABLY fall
into in their first trials and experiments.''3 These judicious
reflections contain a lesson of moderation to all the sincere lovers
of the Union, and ought to put them upon their guard against
hazarding anarchy, civil war, a perpetual alienation of the States
from each other, and perhaps the military despotism of a victorious
demagogue, in the pursuit of what they are not likely to obtain, but
from time and experience. It may be in me a defect of political
fortitude, but I acknowledge that I cannot entertain an equal
tranquillity with those who affect to treat the dangers of a longer
continuance in our present situation as imaginary. A nation,
without a national government, is, in my view, an awful spectacle.
The establishment of a Constitution, in time of profound peace, by
the voluntary consent of a whole people, is a prodigy, to the
completion of which I look forward with trembling anxiety. I can
reconcile it to no rules of prudence to let go the hold we now have,
in so arduous an enterprise, upon seven out of the thirteen States,
and after having passed over so considerable a part of the ground,
to recommence the course. I dread the more the consequences of new
attempts, because I know that powerful individuals, in this and in
other States, are enemies to a general national government in every
possible shape.
PUBLIUS.
1 Entitled ``An Address to the People of the State of New
York.''
2 It may rather be said TEN, for though two thirds may set on
foot the measure, three fourths must ratify.
3 Hume's ``Essays,'' vol. i., page 128: ``The Rise of Arts and
Sciences.''

Book of the day: