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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?
Let us attend to what would be the effects of this situation in
the very first war in which we should happen to be engaged. We will
presume, for argument's sake, that the revenue arising from the
impost duties answers the purposes of a provision for the public
debt and of a peace establishment for the Union. Thus
circumstanced, a war breaks out. What would be the probable conduct
of the government in such an emergency? Taught by experience that
proper dependence could not be placed on the success of
requisitions, unable by its own authority to lay hold of fresh
resources, and urged by considerations of national danger, would it
not be driven to the expedient of diverting the funds already
appropriated from their proper objects to the defense of the State?
It is not easy to see how a step of this kind could be avoided;
and if it should be taken, it is evident that it would prove the
destruction of public credit at the very moment that it was becoming
essential to the public safety. To imagine that at such a crisis
credit might be dispensed with, would be the extreme of infatuation.
In the modern system of war, nations the most wealthy are obliged
to have recourse to large loans. A country so little opulent as
ours must feel this necessity in a much stronger degree. But who
would lend to a government that prefaced its overtures for borrowing
by an act which demonstrated that no reliance could be placed on the
steadiness of its measures for paying? The loans it might be able
to procure would be as limited in their extent as burdensome in
their conditions. They would be made upon the same principles that
usurers commonly lend to bankrupt and fraudulent debtors, with a
sparing hand and at enormous premiums.
It may perhaps be imagined that, from the scantiness of the
resources of the country, the necessity of diverting the established
funds in the case supposed would exist, though the national
government should possess an unrestrained power of taxation. But
two considerations will serve to quiet all apprehension on this
head: one is, that we are sure the resources of the community, in
their full extent, will be brought into activity for the benefit of
the Union; the other is, that whatever deficiences there may be,
can without difficulty be supplied by loans.
The power of creating new funds upon new objects of taxation, by
its own authority, would enable the national government to borrow as
far as its necessities might require. Foreigners, as well as the
citizens of America, could then reasonably repose confidence in its
engagements; but to depend upon a government that must itself
depend upon thirteen other governments for the means of fulfilling
its contracts, when once its situation is clearly understood, would
require a degree of credulity not often to be met with in the
pecuniary transactions of mankind, and little reconcilable with the
usual sharp-sightedness of avarice.
Reflections of this kind may have trifling weight with men who
hope to see realized in America the halcyon scenes of the poetic or
fabulous age; but to those who believe we are likely to experience
a common portion of the vicissitudes and calamities which have
fallen to the lot of other nations, they must appear entitled to
serious attention. Such men must behold the actual situation of
their country with painful solicitude, and deprecate the evils which
ambition or revenge might, with too much facility, inflict upon it.
PUBLIUS.

FEDERALIST No. 31

The Same Subject Continued
(Concerning the General Power of Taxation)
From the New York Packet.
Tuesday, January 1, 1788.

HAMILTON

To the People of the State of New York:
IN DISQUISITIONS of every kind, there are certain primary
truths, or first principles, upon which all subsequent reasonings
must depend. These contain an internal evidence which, antecedent
to all reflection or combination, commands the assent of the mind.
Where it produces not this effect, it must proceed either from some
defect or disorder in the organs of perception, or from the
influence of some strong interest, or passion, or prejudice. Of
this nature are the maxims in geometry, that ``the whole is greater
than its part; things equal to the same are equal to one another;
two straight lines cannot enclose a space; and all right angles
are equal to each other.'' Of the same nature are these other
maxims in ethics and politics, that there cannot be an effect
without a cause; that the means ought to be proportioned to the
end; that every power ought to be commensurate with its object;
that there ought to be no limitation of a power destined to effect
a purpose which is itself incapable of limitation. And there are
other truths in the two latter sciences which, if they cannot
pretend to rank in the class of axioms, are yet such direct
inferences from them, and so obvious in themselves, and so agreeable
to the natural and unsophisticated dictates of common-sense, that
they challenge the assent of a sound and unbiased mind, with a
degree of force and conviction almost equally irresistible.
The objects of geometrical inquiry are so entirely abstracted
from those pursuits which stir up and put in motion the unruly
passions of the human heart, that mankind, without difficulty, adopt
not only the more simple theorems of the science, but even those
abstruse paradoxes which, however they may appear susceptible of
demonstration, are at variance with the natural conceptions which
the mind, without the aid of philosophy, would be led to entertain
upon the subject. The INFINITE DIVISIBILITY of matter, or, in other
words, the INFINITE divisibility of a FINITE thing, extending even
to the minutest atom, is a point agreed among geometricians, though
not less incomprehensible to common-sense than any of those
mysteries in religion, against which the batteries of infidelity
have been so industriously leveled.
But in the sciences of morals and politics, men are found far
less tractable. To a certain degree, it is right and useful that
this should be the case. Caution and investigation are a necessary
armor against error and imposition. But this untractableness may be
carried too far, and may degenerate into obstinacy, perverseness, or
disingenuity. Though it cannot be pretended that the principles of
moral and political knowledge have, in general, the same degree of
certainty with those of the mathematics, yet they have much better
claims in this respect than, to judge from the conduct of men in
particular situations, we should be disposed to allow them. The
obscurity is much oftener in the passions and prejudices of the
reasoner than in the subject. Men, upon too many occasions, do not
give their own understandings fair play; but, yielding to some
untoward bias, they entangle themselves in words and confound
themselves in subtleties.
How else could it happen (if we admit the objectors to be
sincere in their opposition), that positions so clear as those which
manifest the necessity of a general power of taxation in the
government of the Union, should have to encounter any adversaries
among men of discernment? Though these positions have been
elsewhere fully stated, they will perhaps not be improperly
recapitulated in this place, as introductory to an examination of
what may have been offered by way of objection to them. They are in
substance as follows:
A government ought to contain in itself every power requisite to
the full accomplishment of the objects committed to its care, and to
the complete execution of the trusts for which it is responsible,
free from every other control but a regard to the public good and to
the sense of the people.
As the duties of superintending the national defense and of
securing the public peace against foreign or domestic violence
involve a provision for casualties and dangers to which no possible
limits can be assigned, the power of making that provision ought to
know no other bounds than the exigencies of the nation and the
resources of the community.
As revenue is the essential engine by which the means of
answering the national exigencies must be procured, the power of
procuring that article in its full extent must necessarily be
comprehended in that of providing for those exigencies.
As theory and practice conspire to prove that the power of
procuring revenue is unavailing when exercised over the States in
their collective capacities, the federal government must of
necessity be invested with an unqualified power of taxation in the
ordinary modes.
Did not experience evince the contrary, it would be natural to
conclude that the propriety of a general power of taxation in the
national government might safely be permitted to rest on the
evidence of these propositions, unassisted by any additional
arguments or illustrations. But we find, in fact, that the
antagonists of the proposed Constitution, so far from acquiescing in
their justness or truth, seem to make their principal and most
zealous effort against this part of the plan. It may therefore be
satisfactory to analyze the arguments with which they combat it.
Those of them which have been most labored with that view, seem
in substance to amount to this: ``It is not true, because the
exigencies of the Union may not be susceptible of limitation, that
its power of laying taxes ought to be unconfined. Revenue is as
requisite to the purposes of the local administrations as to those
of the Union; and the former are at least of equal importance with
the latter to the happiness of the people. It is, therefore, as
necessary that the State governments should be able to command the
means of supplying their wants, as that the national government
should possess the like faculty in respect to the wants of the Union.
But an indefinite power of taxation in the LATTER might, and
probably would in time, deprive the FORMER of the means of providing
for their own necessities; and would subject them entirely to the
mercy of the national legislature. As the laws of the Union are to
become the supreme law of the land, as it is to have power to pass
all laws that may be NECESSARY for carrying into execution the
authorities with which it is proposed to vest it, the national
government might at any time abolish the taxes imposed for State
objects upon the pretense of an interference with its own. It might
allege a necessity of doing this in order to give efficacy to the
national revenues. And thus all the resources of taxation might by
degrees become the subjects of federal monopoly, to the entire
exclusion and destruction of the State governments.''
This mode of reasoning appears sometimes to turn upon the
supposition of usurpation in the national government; at other
times it seems to be designed only as a deduction from the
constitutional operation of its intended powers. It is only in the
latter light that it can be admitted to have any pretensions to
fairness. The moment we launch into conjectures about the
usurpations of the federal government, we get into an unfathomable
abyss, and fairly put ourselves out of the reach of all reasoning.
Imagination may range at pleasure till it gets bewildered amidst
the labyrinths of an enchanted castle, and knows not on which side
to turn to extricate itself from the perplexities into which it has
so rashly adventured. Whatever may be the limits or modifications
of the powers of the Union, it is easy to imagine an endless train
of possible dangers; and by indulging an excess of jealousy and
timidity, we may bring ourselves to a state of absolute scepticism
and irresolution. I repeat here what I have observed in substance
in another place, that all observations founded upon the danger of
usurpation ought to be referred to the composition and structure of
the government, not to the nature or extent of its powers. The
State governments, by their original constitutions, are invested
with complete sovereignty. In what does our security consist
against usurpation from that quarter? Doubtless in the manner of
their formation, and in a due dependence of those who are to
administer them upon the people. If the proposed construction of
the federal government be found, upon an impartial examination of
it, to be such as to afford, to a proper extent, the same species of
security, all apprehensions on the score of usurpation ought to be
discarded.
It should not be forgotten that a disposition in the State
governments to encroach upon the rights of the Union is quite as
probable as a disposition in the Union to encroach upon the rights
of the State governments. What side would be likely to prevail in
such a conflict, must depend on the means which the contending
parties could employ toward insuring success. As in republics
strength is always on the side of the people, and as there are
weighty reasons to induce a belief that the State governments will
commonly possess most influence over them, the natural conclusion is
that such contests will be most apt to end to the disadvantage of
the Union; and that there is greater probability of encroachments
by the members upon the federal head, than by the federal head upon
the members. But it is evident that all conjectures of this kind
must be extremely vague and fallible: and that it is by far the
safest course to lay them altogether aside, and to confine our
attention wholly to the nature and extent of the powers as they are
delineated in the Constitution. Every thing beyond this must be
left to the prudence and firmness of the people; who, as they will
hold the scales in their own hands, it is to be hoped, will always
take care to preserve the constitutional equilibrium between the
general and the State governments. Upon this ground, which is
evidently the true one, it will not be difficult to obviate the
objections which have been made to an indefinite power of taxation
in the United States.
PUBLIUS.

FEDERALIST No. 32

The Same Subject Continued
(Concerning the General Power of Taxation)
From the Daily Advertiser.
Thursday, January 3, 1788.

HAMILTON

To the People of the State of New York:
ALTHOUGH I am of opinion that there would be no real danger of
the consequences which seem to be apprehended to the State
governments from a power in the Union to control them in the levies
of money, because I am persuaded that the sense of the people, the
extreme hazard of provoking the resentments of the State
governments, and a conviction of the utility and necessity of local
administrations for local purposes, would be a complete barrier
against the oppressive use of such a power; yet I am willing here
to allow, in its full extent, the justness of the reasoning which
requires that the individual States should possess an independent
and uncontrollable authority to raise their own revenues for the
supply of their own wants. And making this concession, I affirm
that (with the sole exception of duties on imports and exports) they
would, under the plan of the convention, retain that authority in
the most absolute and unqualified sense; and that an attempt on the
part of the national government to abridge them in the exercise of
it, would be a violent assumption of power, unwarranted by any
article or clause of its Constitution.
An entire consolidation of the States into one complete national
sovereignty would imply an entire subordination of the parts; and
whatever powers might remain in them, would be altogether dependent
on the general will. But as the plan of the convention aims only at
a partial union or consolidation, the State governments would
clearly retain all the rights of sovereignty which they before had,
and which were not, by that act, EXCLUSIVELY delegated to the United
States. This exclusive delegation, or rather this alienation, of
State sovereignty, would only exist in three cases: where the
Constitution in express terms granted an exclusive authority to the
Union; where it granted in one instance an authority to the Union,
and in another prohibited the States from exercising the like
authority; and where it granted an authority to the Union, to which
a similar authority in the States would be absolutely and totally
CONTRADICTORY and REPUGNANT. I use these terms to distinguish this
last case from another which might appear to resemble it, but which
would, in fact, be essentially different; I mean where the exercise
of a concurrent jurisdiction might be productive of occasional
interferences in the POLICY of any branch of administration, but
would not imply any direct contradiction or repugnancy in point of
constitutional authority. These three cases of exclusive
jurisdiction in the federal government may be exemplified by the
following instances: The last clause but one in the eighth section
of the first article provides expressly that Congress shall exercise
``EXCLUSIVE LEGISLATION'' over the district to be appropriated as
the seat of government. This answers to the first case. The first
clause of the same section empowers Congress ``TO LAY AND COLLECT
TAXES, DUTIES, IMPOSTS AND EXCISES''; and the second clause of the
tenth section of the same article declares that, ``NO STATE SHALL,
without the consent of Congress, LAY ANY IMPOSTS OR DUTIES ON
IMPORTS OR EXPORTS, except for the purpose of executing its
inspection laws.'' Hence would result an exclusive power in the
Union to lay duties on imports and exports, with the particular
exception mentioned; but this power is abridged by another clause,
which declares that no tax or duty shall be laid on articles
exported from any State; in consequence of which qualification, it
now only extends to the DUTIES ON IMPORTS. This answers to the
second case. The third will be found in that clause which declares
that Congress shall have power ``to establish an UNIFORM RULE of
naturalization throughout the United States.'' This must
necessarily be exclusive; because if each State had power to
prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.
A case which may perhaps be thought to resemble the latter, but
which is in fact widely different, affects the question immediately
under consideration. I mean the power of imposing taxes on all
articles other than exports and imports. This, I contend, is
manifestly a concurrent and coequal authority in the United States
and in the individual States. There is plainly no expression in the
granting clause which makes that power EXCLUSIVE in the Union.
There is no independent clause or sentence which prohibits the
States from exercising it. So far is this from being the case, that
a plain and conclusive argument to the contrary is to be deduced
from the restraint laid upon the States in relation to duties on
imports and exports. This restriction implies an admission that, if
it were not inserted, the States would possess the power it
excludes; and it implies a further admission, that as to all other
taxes, the authority of the States remains undiminished. In any
other view it would be both unnecessary and dangerous; it would be
unnecessary, because if the grant to the Union of the power of
laying such duties implied the exclusion of the States, or even
their subordination in this particular, there could be no need of
such a restriction; it would be dangerous, because the introduction
of it leads directly to the conclusion which has been mentioned, and
which, if the reasoning of the objectors be just, could not have
been intended; I mean that the States, in all cases to which the
restriction did not apply, would have a concurrent power of taxation
with the Union. The restriction in question amounts to what lawyers
call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an
AFFIRMANCE of another; a negation of the authority of the States to
impose taxes on imports and exports, and an affirmance of their
authority to impose them on all other articles. It would be mere
sophistry to argue that it was meant to exclude them ABSOLUTELY from
the imposition of taxes of the former kind, and to leave them at
liberty to lay others SUBJECT TO THE CONTROL of the national
legislature. The restraining or prohibitory clause only says, that
they shall not, WITHOUT THE CONSENT OF CONGRESS, lay such duties;
and if we are to understand this in the sense last mentioned, the
Constitution would then be made to introduce a formal provision for
the sake of a very absurd conclusion; which is, that the States,
WITH THE CONSENT of the national legislature, might tax imports and
exports; and that they might tax every other article, UNLESS
CONTROLLED by the same body. If this was the intention, why not
leave it, in the first instance, to what is alleged to be the
natural operation of the original clause, conferring a general power
of taxation upon the Union? It is evident that this could not have
been the intention, and that it will not bear a construction of the
kind.
As to a supposition of repugnancy between the power of taxation
in the States and in the Union, it cannot be supported in that sense
which would be requisite to work an exclusion of the States. It is,
indeed, possible that a tax might be laid on a particular article by
a State which might render it INEXPEDIENT that thus a further tax
should be laid on the same article by the Union; but it would not
imply a constitutional inability to impose a further tax. The
quantity of the imposition, the expediency or inexpediency of an
increase on either side, would be mutually questions of prudence;
but there would be involved no direct contradiction of power. The
particular policy of the national and of the State systems of
finance might now and then not exactly coincide, and might require
reciprocal forbearances. It is not, however a mere possibility of
inconvenience in the exercise of powers, but an immediate
constitutional repugnancy that can by implication alienate and
extinguish a pre-existing right of sovereignty.
The necessity of a concurrent jurisdiction in certain cases
results from the division of the sovereign power; and the rule that
all authorities, of which the States are not explicitly divested in
favor of the Union, remain with them in full vigor, is not a
theoretical consequence of that division, but is clearly admitted by
the whole tenor of the instrument which contains the articles of the
proposed Constitution. We there find that, notwithstanding the
affirmative grants of general authorities, there has been the most
pointed care in those cases where it was deemed improper that the
like authorities should reside in the States, to insert negative
clauses prohibiting the exercise of them by the States. The tenth
section of the first article consists altogether of such provisions.
This circumstance is a clear indication of the sense of the
convention, and furnishes a rule of interpretation out of the body
of the act, which justifies the position I have advanced and refutes
every hypothesis to the contrary.
PUBLIUS.

FEDERALIST No. 33

The Same Subject Continued
(Concerning the General Power of Taxation)
From the Daily Advertiser.
January 3, 1788.

HAMILTON

To the People of the State of New York:
THE residue of the argument against the provisions of the
Constitution in respect to taxation is ingrafted upon the following
clause. The last clause of the eighth section of the first article
of the plan under consideration authorizes the national legislature
``to make all laws which shall be NECESSARY and PROPER for carrying
into execution THE POWERS by that Constitution vested in the
government of the United States, or in any department or officer
thereof''; and the second clause of the sixth article declares,
``that the Constitution and the laws of the United States made IN
PURSUANCE THEREOF, and the treaties made by their authority shall be
the SUPREME LAW of the land, any thing in the constitution or laws
of any State to the contrary notwithstanding.''
These two clauses have been the source of much virulent
invective and petulant declamation against the proposed Constitution.
They have been held up to the people in all the exaggerated colors
of misrepresentation as the pernicious engines by which their local
governments were to be destroyed and their liberties exterminated;
as the hideous monster whose devouring jaws would spare neither sex
nor age, nor high nor low, nor sacred nor profane; and yet, strange
as it may appear, after all this clamor, to those who may not have
happened to contemplate them in the same light, it may be affirmed
with perfect confidence that the constitutional operation of the
intended government would be precisely the same, if these clauses
were entirely obliterated, as if they were repeated in every article.
They are only declaratory of a truth which would have resulted by
necessary and unavoidable implication from the very act of
constituting a federal government, and vesting it with certain
specified powers. This is so clear a proposition, that moderation
itself can scarcely listen to the railings which have been so
copiously vented against this part of the plan, without emotions
that disturb its equanimity.
What is a power, but the ability or faculty of doing a thing?
What is the ability to do a thing, but the power of employing the
MEANS necessary to its execution? What is a LEGISLATIVE power, but
a power of making LAWS? What are the MEANS to execute a LEGISLATIVE
power but LAWS? What is the power of laying and collecting taxes,
but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and
collect taxes? What are the proper means of executing such a power,
but NECESSARY and PROPER laws?
This simple train of inquiry furnishes us at once with a test by
which to judge of the true nature of the clause complained of. It
conducts us to this palpable truth, that a power to lay and collect
taxes must be a power to pass all laws NECESSARY and PROPER for the
execution of that power; and what does the unfortunate and
culumniated provision in question do more than declare the same
truth, to wit, that the national legislature, to whom the power of
laying and collecting taxes had been previously given, might, in the
execution of that power, pass all laws NECESSARY and PROPER to carry
it into effect? I have applied these observations thus particularly
to the power of taxation, because it is the immediate subject under
consideration, and because it is the most important of the
authorities proposed to be conferred upon the Union. But the same
process will lead to the same result, in relation to all other
powers declared in the Constitution. And it is EXPRESSLY to execute
these powers that the sweeping clause, as it has been affectedly
called, authorizes the national legislature to pass all NECESSARY
and PROPER laws. If there is any thing exceptionable, it must be
sought for in the specific powers upon which this general
declaration is predicated. The declaration itself, though it may be
chargeable with tautology or redundancy, is at least perfectly
harmless.
But SUSPICION may ask, Why then was it introduced? The answer
is, that it could only have been done for greater caution, and to
guard against all cavilling refinements in those who might hereafter
feel a disposition to curtail and evade the legitimate authorities
of the Union. The Convention probably foresaw, what it has been a
principal aim of these papers to inculcate, that the danger which
most threatens our political welfare is that the State governments
will finally sap the foundations of the Union; and might therefore
think it necessary, in so cardinal a point, to leave nothing to
construction. Whatever may have been the inducement to it, the
wisdom of the precaution is evident from the cry which has been
raised against it; as that very cry betrays a disposition to
question the great and essential truth which it is manifestly the
object of that provision to declare.
But it may be again asked, Who is to judge of the NECESSITY and
PROPRIETY of the laws to be passed for executing the powers of the
Union? I answer, first, that this question arises as well and as
fully upon the simple grant of those powers as upon the declaratory
clause; and I answer, in the second place, that the national
government, like every other, must judge, in the first instance, of
the proper exercise of its powers, and its constituents in the last.
If the federal government should overpass the just bounds of its
authority and make a tyrannical use of its powers, the people, whose
creature it is, must appeal to the standard they have formed, and
take such measures to redress the injury done to the Constitution as
the exigency may suggest and prudence justify. The propriety of a
law, in a constitutional light, must always be determined by the
nature of the powers upon which it is founded. Suppose, by some
forced constructions of its authority (which, indeed, cannot easily
be imagined), the Federal legislature should attempt to vary the law
of descent in any State, would it not be evident that, in making
such an attempt, it had exceeded its jurisdiction, and infringed
upon that of the State? Suppose, again, that upon the pretense of
an interference with its revenues, it should undertake to abrogate a
landtax imposed by the authority of a State; would it not be
equally evident that this was an invasion of that concurrent
jurisdiction in respect to this species of tax, which its
Constitution plainly supposes to exist in the State governments? If
there ever should be a doubt on this head, the credit of it will be
entirely due to those reasoners who, in the imprudent zeal of their
animosity to the plan of the convention, have labored to envelop it
in a cloud calculated to obscure the plainest and simplest truths.
But it is said that the laws of the Union are to be the SUPREME
LAW of the land. But what inference can be drawn from this, or what
would they amount to, if they were not to be supreme? It is evident
they would amount to nothing. A LAW, by the very meaning of the
term, includes supremacy. It is a rule which those to whom it is
prescribed are bound to observe. This results from every political
association. If individuals enter into a state of society, the laws
of that society must be the supreme regulator of their conduct. If
a number of political societies enter into a larger political
society, the laws which the latter may enact, pursuant to the powers
intrusted to it by its constitution, must necessarily be supreme
over those societies, and the individuals of whom they are composed.
It would otherwise be a mere treaty, dependent on the good faith of
the parties, and not a government, which is only another word for
POLITICAL POWER AND SUPREMACY. But it will not follow from this
doctrine that acts of the large society which are NOT PURSUANT to
its constitutional powers, but which are invasions of the residuary
authorities of the smaller societies, will become the supreme law of
the land. These will be merely acts of usurpation, and will deserve
to be treated as such. Hence we perceive that the clause which
declares the supremacy of the laws of the Union, like the one we
have just before considered, only declares a truth, which flows
immediately and necessarily from the institution of a federal
government. It will not, I presume, have escaped observation, that
it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE
CONSTITUTION; which I mention merely as an instance of caution in
the convention; since that limitation would have been to be
understood, though it had not been expressed.
Though a law, therefore, laying a tax for the use of the United
States would be supreme in its nature, and could not legally be
opposed or controlled, yet a law for abrogating or preventing the
collection of a tax laid by the authority of the State, (unless upon
imports and exports), would not be the supreme law of the land, but
a usurpation of power not granted by the Constitution. As far as an
improper accumulation of taxes on the same object might tend to
render the collection difficult or precarious, this would be a
mutual inconvenience, not arising from a superiority or defect of
power on either side, but from an injudicious exercise of power by
one or the other, in a manner equally disadvantageous to both. It
is to be hoped and presumed, however, that mutual interest would
dictate a concert in this respect which would avoid any material
inconvenience. The inference from the whole is, that the individual
States would, under the proposed Constitution, retain an independent
and uncontrollable authority to raise revenue to any extent of which
they may stand in need, by every kind of taxation, except duties on
imports and exports. It will be shown in the next paper that this
CONCURRENT JURISDICTION in the article of taxation was the only
admissible substitute for an entire subordination, in respect to
this branch of power, of the State authority to that of the Union.
PUBLIUS.

FEDERALIST No. 34

The Same Subject Continued
(Concerning the General Power of Taxation)
From the New York Packet.
Friday, January 4, 1788.

HAMILTON

To the People of the State of New York:
I FLATTER myself it has been clearly shown in my last number
that the particular States, under the proposed Constitution, would
have COEQUAL authority with the Union in the article of revenue,
except as to duties on imports. As this leaves open to the States
far the greatest part of the resources of the community, there can
be no color for the assertion that they would not possess means as
abundant as could be desired for the supply of their own wants,
independent of all external control. That the field is sufficiently
wide will more fully appear when we come to advert to the
inconsiderable share of the public expenses for which it will fall
to the lot of the State governments to provide.
To argue upon abstract principles that this co-ordinate
authority cannot exist, is to set up supposition and theory against
fact and reality. However proper such reasonings might be to show
that a thing OUGHT NOT TO EXIST, they are wholly to be rejected when
they are made use of to prove that it does not exist contrary to the
evidence of the fact itself. It is well known that in the Roman
republic the legislative authority, in the last resort, resided for
ages in two different political bodies not as branches of the same
legislature, but as distinct and independent legislatures, in each
of which an opposite interest prevailed: in one the patrician; in
the other, the plebian. Many arguments might have been adduced to
prove the unfitness of two such seemingly contradictory authorities,
each having power to ANNUL or REPEAL the acts of the other. But a
man would have been regarded as frantic who should have attempted at
Rome to disprove their existence. It will be readily understood
that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA.
The former, in which the people voted by centuries, was so arranged
as to give a superiority to the patrician interest; in the latter,
in which numbers prevailed, the plebian interest had an entire
predominancy. And yet these two legislatures coexisted for ages,
and the Roman republic attained to the utmost height of human
greatness.
In the case particularly under consideration, there is no such
contradiction as appears in the example cited; there is no power on
either side to annul the acts of the other. And in practice there
is little reason to apprehend any inconvenience; because, in a
short course of time, the wants of the States will naturally reduce
themselves within A VERY NARROW COMPASS; and in the interim, the
United States will, in all probability, find it convenient to
abstain wholly from those objects to which the particular States
would be inclined to resort.
To form a more precise judgment of the true merits of this
question, it will be well to advert to the proportion between the
objects that will require a federal provision in respect to revenue,
and those which will require a State provision. We shall discover
that the former are altogether unlimited, and that the latter are
circumscribed within very moderate bounds. In pursuing this
inquiry, we must bear in mind that we are not to confine our view to
the present period, but to look forward to remote futurity.
Constitutions of civil government are not to be framed upon a
calculation of existing exigencies, but upon a combination of these
with the probable exigencies of ages, according to the natural and
tried course of human affairs. Nothing, therefore, can be more
fallacious than to infer the extent of any power, proper to be
lodged in the national government, from an estimate of its immediate
necessities. There ought to be a CAPACITY to provide for future
contingencies as they may happen; and as these are illimitable in
their nature, it is impossible safely to limit that capacity. It is
true, perhaps, that a computation might be made with sufficient
accuracy to answer the purpose of the quantity of revenue requisite
to discharge the subsisting engagements of the Union, and to
maintain those establishments which, for some time to come, would
suffice in time of peace. But would it be wise, or would it not
rather be the extreme of folly, to stop at this point, and to leave
the government intrusted with the care of the national defense in a
state of absolute incapacity to provide for the protection of the
community against future invasions of the public peace, by foreign
war or domestic convulsions? If, on the contrary, we ought to
exceed this point, where can we stop, short of an indefinite power
of providing for emergencies as they may arise? Though it is easy
to assert, in general terms, the possibility of forming a rational
judgment of a due provision against probable dangers, yet we may
safely challenge those who make the assertion to bring forward their
data, and may affirm that they would be found as vague and uncertain
as any that could be produced to establish the probable duration of
the world. Observations confined to the mere prospects of internal
attacks can deserve no weight; though even these will admit of no
satisfactory calculation: but if we mean to be a commercial people,
it must form a part of our policy to be able one day to defend that
commerce. The support of a navy and of naval wars would involve
contingencies that must baffle all the efforts of political
arithmetic.
Admitting that we ought to try the novel and absurd experiment
in politics of tying up the hands of government from offensive war
founded upon reasons of state, yet certainly we ought not to disable
it from guarding the community against the ambition or enmity of
other nations. A cloud has been for some time hanging over the
European world. If it should break forth into a storm, who can
insure us that in its progress a part of its fury would not be spent
upon us? No reasonable man would hastily pronounce that we are
entirely out of its reach. Or if the combustible materials that now
seem to be collecting should be dissipated without coming to
maturity, or if a flame should be kindled without extending to us,
what security can we have that our tranquillity will long remain
undisturbed from some other cause or from some other quarter? Let
us recollect that peace or war will not always be left to our
option; that however moderate or unambitious we may be, we cannot
count upon the moderation, or hope to extinguish the ambition of
others. Who could have imagined at the conclusion of the last war
that France and Britain, wearied and exhausted as they both were,
would so soon have looked with so hostile an aspect upon each other?
To judge from the history of mankind, we shall be compelled to
conclude that the fiery and destructive passions of war reign in the
human breast with much more powerful sway than the mild and
beneficent sentiments of peace; and that to model our political
systems upon speculations of lasting tranquillity, is to calculate
on the weaker springs of the human character.
What are the chief sources of expense in every government? What
has occasioned that enormous accumulation of debts with which
several of the European nations are oppressed? The answers plainly
is, wars and rebellions; the support of those institutions which
are necessary to guard the body politic against these two most
mortal diseases of society. The expenses arising from those
institutions which are relative to the mere domestic police of a
state, to the support of its legislative, executive, and judicial
departments, with their different appendages, and to the
encouragement of agriculture and manufactures (which will comprehend
almost all the objects of state expenditure), are insignificant in
comparison with those which relate to the national defense.
In the kingdom of Great Britain, where all the ostentatious
apparatus of monarchy is to be provided for, not above a fifteenth
part of the annual income of the nation is appropriated to the class
of expenses last mentioned; the other fourteen fifteenths are
absorbed in the payment of the interest of debts contracted for
carrying on the wars in which that country has been engaged, and in
the maintenance of fleets and armies. If, on the one hand, it
should be observed that the expenses incurred in the prosecution of
the ambitious enterprises and vainglorious pursuits of a monarchy
are not a proper standard by which to judge of those which might be
necessary in a republic, it ought, on the other hand, to be remarked
that there should be as great a disproportion between the profusion
and extravagance of a wealthy kingdom in its domestic
administration, and the frugality and economy which in that
particular become the modest simplicity of republican government.
If we balance a proper deduction from one side against that which
it is supposed ought to be made from the other, the proportion may
still be considered as holding good.
But let us advert to the large debt which we have ourselves
contracted in a single war, and let us only calculate on a common
share of the events which disturb the peace of nations, and we shall
instantly perceive, without the aid of any elaborate illustration,
that there must always be an immense disproportion between the
objects of federal and state expenditures. It is true that several
of the States, separately, are encumbered with considerable debts,
which are an excrescence of the late war. But this cannot happen
again, if the proposed system be adopted; and when these debts are
discharged, the only call for revenue of any consequence, which the
State governments will continue to experience, will be for the mere
support of their respective civil list; to which, if we add all
contingencies, the total amount in every State ought to fall
considerably short of two hundred thousand pounds.
In framing a government for posterity as well as ourselves, we
ought, in those provisions which are designed to be permanent, to
calculate, not on temporary, but on permanent causes of expense. If
this principle be a just one our attention would be directed to a
provision in favor of the State governments for an annual sum of
about two hundred thousand pounds; while the exigencies of the
Union could be susceptible of no limits, even in imagination. In
this view of the subject, by what logic can it be maintained that
the local governments ought to command, in perpetuity, an EXCLUSIVE
source of revenue for any sum beyond the extent of two hundred
thousand pounds? To extend its power further, in EXCLUSION of the
authority of the Union, would be to take the resources of the
community out of those hands which stood in need of them for the
public welfare, in order to put them into other hands which could
have no just or proper occasion for them.
Suppose, then, the convention had been inclined to proceed upon
the principle of a repartition of the objects of revenue, between
the Union and its members, in PROPORTION to their comparative
necessities; what particular fund could have been selected for the
use of the States, that would not either have been too much or too
little too little for their present, too much for their future
wants? As to the line of separation between external and internal
taxes, this would leave to the States, at a rough computation, the
command of two thirds of the resources of the community to defray
from a tenth to a twentieth part of its expenses; and to the Union,
one third of the resources of the community, to defray from nine
tenths to nineteen twentieths of its expenses. If we desert this
boundary and content ourselves with leaving to the States an
exclusive power of taxing houses and lands, there would still be a
great disproportion between the MEANS and the END; the possession
of one third of the resources of the community to supply, at most,
one tenth of its wants. If any fund could have been selected and
appropriated, equal to and not greater than the object, it would
have been inadequate to the discharge of the existing debts of the
particular States, and would have left them dependent on the Union
for a provision for this purpose.
The preceding train of observation will justify the position
which has been elsewhere laid down, that ``A CONCURRENT JURISDICTION
in the article of taxation was the only admissible substitute for an
entire subordination, in respect to this branch of power, of State
authority to that of the Union.'' Any separation of the objects of
revenue that could have been fallen upon, would have amounted to a
sacrifice of the great INTERESTS of the Union to the POWER of the
individual States. The convention thought the concurrent
jurisdiction preferable to that subordination; and it is evident
that it has at least the merit of reconciling an indefinite
constitutional power of taxation in the Federal government with an
adequate and independent power in the States to provide for their
own necessities. There remain a few other lights, in which this
important subject of taxation will claim a further consideration.
PUBLIUS.

FEDERALIST No. 35

The Same Subject Continued
(Concerning the General Power of Taxation)
For the Independent Journal.

HAMILTON

To the People of the State of New York:
BEFORE we proceed to examine any other objections to an
indefinite power of taxation in the Union, I shall make one general
remark; which is, that if the jurisdiction of the national
government, in the article of revenue, should be restricted to
particular objects, it would naturally occasion an undue proportion
of the public burdens to fall upon those objects. Two evils would
spring from this source: the oppression of particular branches of
industry; and an unequal distribution of the taxes, as well among
the several States as among the citizens of the same State.
Suppose, as has been contended for, the federal power of
taxation were to be confined to duties on imports, it is evident
that the government, for want of being able to command other
resources, would frequently be tempted to extend these duties to an
injurious excess. There are persons who imagine that they can never
be carried to too great a length; since the higher they are, the
more it is alleged they will tend to discourage an extravagant
consumption, to produce a favorable balance of trade, and to promote
domestic manufactures. But all extremes are pernicious in various
ways. Exorbitant duties on imported articles would beget a general
spirit of smuggling; which is always prejudicial to the fair
trader, and eventually to the revenue itself: they tend to render
other classes of the community tributary, in an improper degree, to
the manufacturing classes, to whom they give a premature monopoly of
the markets; they sometimes force industry out of its more natural
channels into others in which it flows with less advantage; and in
the last place, they oppress the merchant, who is often obliged to
pay them himself without any retribution from the consumer. When
the demand is equal to the quantity of goods at market, the consumer
generally pays the duty; but when the markets happen to be
overstocked, a great proportion falls upon the merchant, and
sometimes not only exhausts his profits, but breaks in upon his
capital. I am apt to think that a division of the duty, between the
seller and the buyer, more often happens than is commonly imagined.
It is not always possible to raise the price of a commodity in
exact proportion to every additional imposition laid upon it. The
merchant, especially in a country of small commercial capital, is
often under a necessity of keeping prices down in order to a more
expeditious sale.
The maxim that the consumer is the payer, is so much oftener
true than the reverse of the proposition, that it is far more
equitable that the duties on imports should go into a common stock,
than that they should redound to the exclusive benefit of the
importing States. But it is not so generally true as to render it
equitable, that those duties should form the only national fund.
When they are paid by the merchant they operate as an additional
tax upon the importing State, whose citizens pay their proportion of
them in the character of consumers. In this view they are
productive of inequality among the States; which inequality would
be increased with the increased extent of the duties. The
confinement of the national revenues to this species of imposts
would be attended with inequality, from a different cause, between
the manufacturing and the non-manufacturing States. The States
which can go farthest towards the supply of their own wants, by
their own manufactures, will not, according to their numbers or
wealth, consume so great a proportion of imported articles as those
States which are not in the same favorable situation. They would
not, therefore, in this mode alone contribute to the public treasury
in a ratio to their abilities. To make them do this it is necessary
that recourse be had to excises, the proper objects of which are
particular kinds of manufactures. New York is more deeply
interested in these considerations than such of her citizens as
contend for limiting the power of the Union to external taxation may
be aware of. New York is an importing State, and is not likely
speedily to be, to any great extent, a manufacturing State. She
would, of course, suffer in a double light from restraining the
jurisdiction of the Union to commercial imposts.
So far as these observations tend to inculcate a danger of the
import duties being extended to an injurious extreme it may be
observed, conformably to a remark made in another part of these
papers, that the interest of the revenue itself would be a
sufficient guard against such an extreme. I readily admit that this
would be the case, as long as other resources were open; but if the
avenues to them were closed, HOPE, stimulated by necessity, would
beget experiments, fortified by rigorous precautions and additional
penalties, which, for a time, would have the intended effect, till
there had been leisure to contrive expedients to elude these new
precautions. The first success would be apt to inspire false
opinions, which it might require a long course of subsequent
experience to correct. Necessity, especially in politics, often
occasions false hopes, false reasonings, and a system of measures
correspondingly erroneous. But even if this supposed excess should
not be a consequence of the limitation of the federal power of
taxation, the inequalities spoken of would still ensue, though not
in the same degree, from the other causes that have been noticed.
Let us now return to the examination of objections.
One which, if we may judge from the frequency of its repetition,
seems most to be relied on, is, that the House of Representatives is
not sufficiently numerous for the reception of all the different
classes of citizens, in order to combine the interests and feelings
of every part of the community, and to produce a due sympathy
between the representative body and its constituents. This argument
presents itself under a very specious and seducing form; and is
well calculated to lay hold of the prejudices of those to whom it is
addressed. But when we come to dissect it with attention, it will
appear to be made up of nothing but fair-sounding words. The object
it seems to aim at is, in the first place, impracticable, and in the
sense in which it is contended for, is unnecessary. I reserve for
another place the discussion of the question which relates to the
sufficiency of the representative body in respect to numbers, and
shall content myself with examining here the particular use which
has been made of a contrary supposition, in reference to the
immediate subject of our inquiries.
The idea of an actual representation of all classes of the
people, by persons of each class, is altogether visionary. Unless
it were expressly provided in the Constitution, that each different
occupation should send one or more members, the thing would never
take place in practice. Mechanics and manufacturers will always be
inclined, with few exceptions, to give their votes to merchants, in
preference to persons of their own professions or trades. Those
discerning citizens are well aware that the mechanic and
manufacturing arts furnish the materials of mercantile enterprise
and industry. Many of them, indeed, are immediately connected with
the operations of commerce. They know that the merchant is their
natural patron and friend; and they are aware, that however great
the confidence they may justly feel in their own good sense, their
interests can be more effectually promoted by the merchant than by
themselves. They are sensible that their habits in life have not
been such as to give them those acquired endowments, without which,
in a deliberative assembly, the greatest natural abilities are for
the most part useless; and that the influence and weight, and
superior acquirements of the merchants render them more equal to a
contest with any spirit which might happen to infuse itself into the
public councils, unfriendly to the manufacturing and trading
interests. These considerations, and many others that might be
mentioned prove, and experience confirms it, that artisans and
manufacturers will commonly be disposed to bestow their votes upon
merchants and those whom they recommend. We must therefore consider
merchants as the natural representatives of all these classes of the
community.
With regard to the learned professions, little need be observed;
they truly form no distinct interest in society, and according to
their situation and talents, will be indiscriminately the objects of
the confidence and choice of each other, and of other parts of the
community.
Nothing remains but the landed interest; and this, in a
political view, and particularly in relation to taxes, I take to be
perfectly united, from the wealthiest landlord down to the poorest
tenant. No tax can be laid on land which will not affect the
proprietor of millions of acres as well as the proprietor of a
single acre. Every landholder will therefore have a common interest
to keep the taxes on land as low as possible; and common interest
may always be reckoned upon as the surest bond of sympathy. But if
we even could suppose a distinction of interest between the opulent
landholder and the middling farmer, what reason is there to
conclude, that the first would stand a better chance of being
deputed to the national legislature than the last? If we take fact
as our guide, and look into our own senate and assembly, we shall
find that moderate proprietors of land prevail in both; nor is this
less the case in the senate, which consists of a smaller number,
than in the assembly, which is composed of a greater number. Where
the qualifications of the electors are the same, whether they have
to choose a small or a large number, their votes will fall upon
those in whom they have most confidence; whether these happen to be
men of large fortunes, or of moderate property, or of no property at
all.
It is said to be necessary, that all classes of citizens should
have some of their own number in the representative body, in order
that their feelings and interests may be the better understood and
attended to. But we have seen that this will never happen under any
arrangement that leaves the votes of the people free. Where this is
the case, the representative body, with too few exceptions to have
any influence on the spirit of the government, will be composed of
landholders, merchants, and men of the learned professions. But
where is the danger that the interests and feelings of the different
classes of citizens will not be understood or attended to by these
three descriptions of men? Will not the landholder know and feel
whatever will promote or insure the interest of landed property?
And will he not, from his own interest in that species of property,
be sufficiently prone to resist every attempt to prejudice or
encumber it? Will not the merchant understand and be disposed to
cultivate, as far as may be proper, the interests of the mechanic
and manufacturing arts, to which his commerce is so nearly allied?
Will not the man of the learned profession, who will feel a
neutrality to the rivalships between the different branches of
industry, be likely to prove an impartial arbiter between them,
ready to promote either, so far as it shall appear to him conducive
to the general interests of the society?
If we take into the account the momentary humors or dispositions
which may happen to prevail in particular parts of the society, and
to which a wise administration will never be inattentive, is the man
whose situation leads to extensive inquiry and information less
likely to be a competent judge of their nature, extent, and
foundation than one whose observation does not travel beyond the
circle of his neighbors and acquaintances? Is it not natural that a
man who is a candidate for the favor of the people, and who is
dependent on the suffrages of his fellow-citizens for the
continuance of his public honors, should take care to inform himself
of their dispositions and inclinations, and should be willing to
allow them their proper degree of influence upon his conduct? This
dependence, and the necessity of being bound himself, and his
posterity, by the laws to which he gives his assent, are the true,
and they are the strong chords of sympathy between the
representative and the constituent.
There is no part of the administration of government that
requires extensive information and a thorough knowledge of the
principles of political economy, so much as the business of taxation.
The man who understands those principles best will be least likely
to resort to oppressive expedients, or sacrifice any particular
class of citizens to the procurement of revenue. It might be
demonstrated that the most productive system of finance will always
be the least burdensome. There can be no doubt that in order to a
judicious exercise of the power of taxation, it is necessary that
the person in whose hands it should be acquainted with the general
genius, habits, and modes of thinking of the people at large, and
with the resources of the country. And this is all that can be
reasonably meant by a knowledge of the interests and feelings of the
people. In any other sense the proposition has either no meaning,
or an absurd one. And in that sense let every considerate citizen
judge for himself where the requisite qualification is most likely
to be found.
PUBLIUS.

FEDERALIST No. 36

The Same Subject Continued
(Concerning the General Power of Taxation)
From the New York Packet.
Tuesday January 8, 1788.

HAMILTON

To the People of the State of New York:
WE HAVE seen that the result of the observations, to which the
foregoing number has been principally devoted, is, that from the
natural operation of the different interests and views of the
various classes of the community, whether the representation of the
people be more or less numerous, it will consist almost entirely of
proprietors of land, of merchants, and of members of the learned
professions, who will truly represent all those different interests
and views. If it should be objected that we have seen other
descriptions of men in the local legislatures, I answer that it is
admitted there are exceptions to the rule, but not in sufficient
number to influence the general complexion or character of the
government. There are strong minds in every walk of life that will
rise superior to the disadvantages of situation, and will command
the tribute due to their merit, not only from the classes to which
they particularly belong, but from the society in general. The door
ought to be equally open to all; and I trust, for the credit of
human nature, that we shall see examples of such vigorous plants
flourishing in the soil of federal as well as of State legislation;
but occasional instances of this sort will not render the reasoning
founded upon the general course of things, less conclusive.
The subject might be placed in several other lights that would
all lead to the same result; and in particular it might be asked,
What greater affinity or relation of interest can be conceived
between the carpenter and blacksmith, and the linen manufacturer or
stocking weaver, than between the merchant and either of them? It
is notorious that there are often as great rivalships between
different branches of the mechanic or manufacturing arts as there
are between any of the departments of labor and industry; so that,
unless the representative body were to be far more numerous than
would be consistent with any idea of regularity or wisdom in its
deliberations, it is impossible that what seems to be the spirit of
the objection we have been considering should ever be realized in
practice. But I forbear to dwell any longer on a matter which has
hitherto worn too loose a garb to admit even of an accurate
inspection of its real shape or tendency.
There is another objection of a somewhat more precise nature
that claims our attention. It has been asserted that a power of
internal taxation in the national legislature could never be
exercised with advantage, as well from the want of a sufficient
knowledge of local circumstances, as from an interference between
the revenue laws of the Union and of the particular States. The
supposition of a want of proper knowledge seems to be entirely
destitute of foundation. If any question is depending in a State
legislature respecting one of the counties, which demands a
knowledge of local details, how is it acquired? No doubt from the
information of the members of the county. Cannot the like knowledge
be obtained in the national legislature from the representatives of
each State? And is it not to be presumed that the men who will
generally be sent there will be possessed of the necessary degree of
intelligence to be able to communicate that information? Is the
knowledge of local circumstances, as applied to taxation, a minute
topographical acquaintance with all the mountains, rivers, streams,
highways, and bypaths in each State; or is it a general
acquaintance with its situation and resources, with the state of its
agriculture, commerce, manufactures, with the nature of its products
and consumptions, with the different degrees and kinds of its
wealth, property, and industry?
Nations in general, even under governments of the more popular
kind, usually commit the administration of their finances to single
men or to boards composed of a few individuals, who digest and
prepare, in the first instance, the plans of taxation, which are
afterwards passed into laws by the authority of the sovereign or
legislature.
Inquisitive and enlightened statesmen are deemed everywhere best
qualified to make a judicious selection of the objects proper for
revenue; which is a clear indication, as far as the sense of
mankind can have weight in the question, of the species of knowledge
of local circumstances requisite to the purposes of taxation.
The taxes intended to be comprised under the general
denomination of internal taxes may be subdivided into those of the
DIRECT and those of the INDIRECT kind. Though the objection be made
to both, yet the reasoning upon it seems to be confined to the
former branch. And indeed, as to the latter, by which must be
understood duties and excises on articles of consumption, one is at
a loss to conceive what can be the nature of the difficulties
apprehended. The knowledge relating to them must evidently be of a
kind that will either be suggested by the nature of the article
itself, or can easily be procured from any well-informed man,
especially of the mercantile class. The circumstances that may
distinguish its situation in one State from its situation in another
must be few, simple, and easy to be comprehended. The principal
thing to be attended to, would be to avoid those articles which had
been previously appropriated to the use of a particular State; and
there could be no difficulty in ascertaining the revenue system of
each. This could always be known from the respective codes of laws,
as well as from the information of the members from the several
States.
The objection, when applied to real property or to houses and
lands, appears to have, at first sight, more foundation, but even in
this view it will not bear a close examination. Land taxes are co
monly laid in one of two modes, either by ACTUAL valuations,
permanent or periodical, or by OCCASIONAL assessments, at the
discretion, or according to the best judgment, of certain officers
whose duty it is to make them. In either case, the EXECUTION of the
business, which alone requires the knowledge of local details, must
be devolved upon discreet persons in the character of commissioners
or assessors, elected by the people or appointed by the government
for the purpose. All that the law can do must be to name the
persons or to prescribe the manner of their election or appointment,
to fix their numbers and qualifications and to draw the general
outlines of their powers and duties. And what is there in all this
that cannot as well be performed by the national legislature as by a
State legislature? The attention of either can only reach to
general principles; local details, as already observed, must be
referred to those who are to execute the plan.
But there is a simple point of view in which this matter may be
placed that must be altogether satisfactory. The national
legislature can make use of the SYSTEM OF EACH STATE WITHIN THAT
STATE. The method of laying and collecting this species of taxes in
each State can, in all its parts, be adopted and employed by the
federal government.
Let it be recollected that the proportion of these taxes is not
to be left to the discretion of the national legislature, but is to
be determined by the numbers of each State, as described in the
second section of the first article. An actual census or
enumeration of the people must furnish the rule, a circumstance
which effectually shuts the door to partiality or oppression. The
abuse of this power of taxation seems to have been provided against
with guarded circumspection. In addition to the precaution just
mentioned, there is a provision that ``all duties, imposts, and
excises shall be UNIFORM throughout the United States.''
It has been very properly observed by different speakers and
writers on the side of the Constitution, that if the exercise of the
power of internal taxation by the Union should be discovered on
experiment to be really inconvenient, the federal government may
then forbear the use of it, and have recourse to requisitions in its
stead. By way of answer to this, it has been triumphantly asked,
Why not in the first instance omit that ambiguous power, and rely
upon the latter resource? Two solid answers may be given. The
first is, that the exercise of that power, if convenient, will be
preferable, because it will be more effectual; and it is impossible
to prove in theory, or otherwise than by the experiment, that it
cannot be advantageously exercised. The contrary, indeed, appears
most probable. The second answer is, that the existence of such a
power in the Constitution will have a strong influence in giving
efficacy to requisitions. When the States know that the Union can
apply itself without their agency, it will be a powerful motive for
exertion on their part.
As to the interference of the revenue laws of the Union, and of
its members, we have already seen that there can be no clashing or
repugnancy of authority. The laws cannot, therefore, in a legal
sense, interfere with each other; and it is far from impossible to
avoid an interference even in the policy of their different systems.
An effectual expedient for this purpose will be, mutually, to
abstain from those objects which either side may have first had
recourse to. As neither can CONTROL the other, each will have an
obvious and sensible interest in this reciprocal forbearance. And
where there is an IMMEDIATE common interest, we may safely count
upon its operation. When the particular debts of the States are
done away, and their expenses come to be limited within their
natural compass, the possibility almost of interference will vanish.
A small land tax will answer the purpose of the States, and will be
their most simple and most fit resource.
Many spectres have been raised out of this power of internal
taxation, to excite the apprehensions of the people: double sets of
revenue officers, a duplication of their burdens by double
taxations, and the frightful forms of odious and oppressive
poll-taxes, have been played off with all the ingenious dexterity of
political legerdemain.
As to the first point, there are two cases in which there can be
no room for double sets of officers: one, where the right of
imposing the tax is exclusively vested in the Union, which applies
to the duties on imports; the other, where the object has not
fallen under any State regulation or provision, which may be
applicable to a variety of objects. In other cases, the probability
is that the United States will either wholly abstain from the
objects preoccupied for local purposes, or will make use of the
State officers and State regulations for collecting the additional
imposition. This will best answer the views of revenue, because it
will save expense in the collection, and will best avoid any
occasion of disgust to the State governments and to the people. At
all events, here is a practicable expedient for avoiding such an
inconvenience; and nothing more can be required than to show that
evils predicted to not necessarily result from the plan.
As to any argument derived from a supposed system of influence,
it is a sufficient answer to say that it ought not to be presumed;
but the supposition is susceptible of a more precise answer. If
such a spirit should infest the councils of the Union, the most
certain road to the accomplishment of its aim would be to employ the
State officers as much as possible, and to attach them to the Union
by an accumulation of their emoluments. This would serve to turn
the tide of State influence into the channels of the national
government, instead of making federal influence flow in an opposite
and adverse current. But all suppositions of this kind are
invidious, and ought to be banished from the consideration of the
great question before the people. They can answer no other end than
to cast a mist over the truth.
As to the suggestion of double taxation, the answer is plain.
The wants of the Union are to be supplied in one way or another;
if to be done by the authority of the federal government, it will
not be to be done by that of the State government. The quantity of
taxes to be paid by the community must be the same in either case;
with this advantage, if the provision is to be made by the
Union that the capital resource of commercial imposts, which is the
most convenient branch of revenue, can be prudently improved to a
much greater extent under federal than under State regulation, and
of course will render it less necessary to recur to more
inconvenient methods; and with this further advantage, that as far
as there may be any real difficulty in the exercise of the power of
internal taxation, it will impose a disposition to greater care in
the choice and arrangement of the means; and must naturally tend to
make it a fixed point of policy in the national administration to go
as far as may be practicable in making the luxury of the rich
tributary to the public treasury, in order to diminish the necessity
of those impositions which might create dissatisfaction in the
poorer and most numerous classes of the society. Happy it is when
the interest which the government has in the preservation of its own
power, coincides with a proper distribution of the public burdens,
and tends to guard the least wealthy part of the community from
oppression!
As to poll taxes, I, without scruple, confess my disapprobation
of them; and though they have prevailed from an early period in
those States [1] which have uniformly been the most tenacious of
their rights, I should lament to see them introduced into practice
under the national government. But does it follow because there is
a power to lay them that they will actually be laid? Every State in
the Union has power to impose taxes of this kind; and yet in
several of them they are unknown in practice. Are the State
governments to be stigmatized as tyrannies, because they possess
this power? If they are not, with what propriety can the like power
justify such a charge against the national government, or even be
urged as an obstacle to its adoption? As little friendly as I am to
the species of imposition, I still feel a thorough conviction that
the power of having recourse to it ought to exist in the federal
government. There are certain emergencies of nations, in which
expedients, that in the ordinary state of things ought to be
forborne, become essential to the public weal. And the government,
from the possibility of such emergencies, ought ever to have the
option of making use of them. The real scarcity of objects in this
country, which may be considered as productive sources of revenue,
is a reason peculiar to itself, for not abridging the discretion of
the national councils in this respect. There may exist certain
critical and tempestuous conjunctures of the State, in which a poll
tax may become an inestimable resource. And as I know nothing to
exempt this portion of the globe from the common calamities that
have befallen other parts of it, I acknowledge my aversion to every
project that is calculated to disarm the government of a single
weapon, which in any possible contingency might be usefully employed
for the general defense and security.
I have now gone through the examination of such of the powers
proposed to be vested in the United States, which may be considered
as having an immediate relation to the energy of the government;
and have endeavored to answer the principal objections which have
been made to them. I have passed over in silence those minor
authorities, which are either too inconsiderable to have been
thought worthy of the hostilities of the opponents of the
Constitution, or of too manifest propriety to admit of controversy.
The mass of judiciary power, however, might have claimed an
investigation under this head, had it not been for the consideration
that its organization and its extent may be more advantageously
considered in connection. This has determined me to refer it to the
branch of our inquiries upon which we shall next enter.
PUBLIUS.
FNA1-@1 The New England States.

FEDERALIST No. 37

Concerning the Difficulties of the Convention in Devising a Proper
Form of Government
From the Daily Advertiser.
Friday, January 11, 1788.

MADISON

To the People of the State of New York:
IN REVIEWING the defects of the existing Confederation, and
showing that they cannot be supplied by a government of less energy
than that before the public, several of the most important
principles of the latter fell of course under consideration. But as
the ultimate object of these papers is to determine clearly and
fully the merits of this Constitution, and the expediency of
adopting it, our plan cannot be complete without taking a more
critical and thorough survey of the work of the convention, without
examining it on all its sides, comparing it in all its parts, and
calculating its probable effects.
That this remaining task may be executed under impressions
conducive to a just and fair result, some reflections must in this
place be indulged, which candor previously suggests.
It is a misfortune, inseparable from human affairs, that public
measures are rarely investigated with that spirit of moderation
which is essential to a just estimate of their real tendency to
advance or obstruct the public good; and that this spirit is more
apt to be diminished than promoted, by those occasions which require
an unusual exercise of it. To those who have been led by experience
to attend to this consideration, it could not appear surprising,
that the act of the convention, which recommends so many important
changes and innovations, which may be viewed in so many lights and
relations, and which touches the springs of so many passions and
interests, should find or excite dispositions unfriendly, both on
one side and on the other, to a fair discussion and accurate
judgment of its merits. In some, it has been too evident from their
own publications, that they have scanned the proposed Constitution,
not only with a predisposition to censure, but with a
predetermination to condemn; as the language held by others betrays
an opposite predetermination or bias, which must render their
opinions also of little moment in the question. In placing,
however, these different characters on a level, with respect to the
weight of their opinions, I wish not to insinuate that there may not
be a material difference in the purity of their intentions. It is
but just to remark in favor of the latter description, that as our
situation is universally admitted to be peculiarly critical, and to
require indispensably that something should be done for our relief,
the predetermined patron of what has been actually done may have
taken his bias from the weight of these considerations, as well as
from considerations of a sinister nature. The predetermined
adversary, on the other hand, can have been governed by no venial
motive whatever. The intentions of the first may be upright, as
they may on the contrary be culpable. The views of the last cannot
be upright, and must be culpable. But the truth is, that these
papers are not addressed to persons falling under either of these
characters. They solicit the attention of those only, who add to a
sincere zeal for the happiness of their country, a temper favorable
to a just estimate of the means of promoting it.
Persons of this character will proceed to an examination of the
plan submitted by the convention, not only without a disposition to
find or to magnify faults; but will see the propriety of
reflecting, that a faultless plan was not to be expected. Nor will
they barely make allowances for the errors which may be chargeable
on the fallibility to which the convention, as a body of men, were
liable; but will keep in mind, that they themselves also are but
men, and ought not to assume an infallibility in rejudging the
fallible opinions of others.
With equal readiness will it be perceived, that besides these
inducements to candor, many allowances ought to be made for the
difficulties inherent in the very nature of the undertaking referred
to the convention.
The novelty of the undertaking immediately strikes us. It has
been shown in the course of these papers, that the existing
Confederation is founded on principles which are fallacious; that
we must consequently change this first foundation, and with it the
superstructure resting upon it. It has been shown, that the other
confederacies which could be consulted as precedents have been
vitiated by the same erroneous principles, and can therefore furnish
no other light than that of beacons, which give warning of the
course to be shunned, without pointing out that which ought to be
pursued. The most that the convention could do in such a situation,
was to avoid the errors suggested by the past experience of other
countries, as well as of our own; and to provide a convenient mode
of rectifying their own errors, as future experiences may unfold
them.
Among the difficulties encountered by the convention, a very
important one must have lain in combining the requisite stability
and energy in government, with the inviolable attention due to
liberty and to the republican form. Without substantially
accomplishing this part of their undertaking, they would have very
imperfectly fulfilled the object of their appointment, or the
expectation of the public; yet that it could not be easily
accomplished, will be denied by no one who is unwilling to betray
his ignorance of the subject. Energy in government is essential to
that security against external and internal danger, and to that
prompt and salutary execution of the laws which enter into the very
definition of good government. Stability in government is essential
to national character and to the advantages annexed to it, as well
as to that repose and confidence in the minds of the people, which
are among the chief blessings of civil society. An irregular and
mutable legislation is not more an evil in itself than it is odious
to the people; and it may be pronounced with assurance that the
people of this country, enlightened as they are with regard to the
nature, and interested, as the great body of them are, in the
effects of good government, will never be satisfied till some remedy
be applied to the vicissitudes and uncertainties which characterize
the State administrations. On comparing, however, these valuable
ingredients with the vital principles of liberty, we must perceive
at once the difficulty of mingling them together in their due
proportions. The genius of republican liberty seems to demand on
one side, not only that all power should be derived from the people,
but that those intrusted with it should be kept in independence on
the people, by a short duration of their appointments; and that
even during this short period the trust should be placed not in a
few, but a number of hands. Stability, on the contrary, requires
that the hands in which power is lodged should continue for a length
of time the same. A frequent change of men will result from a
frequent return of elections; and a frequent change of measures
from a frequent change of men: whilst energy in government requires
not only a certain duration of power, but the execution of it by a
single hand.
How far the convention may have succeeded in this part of their
work, will better appear on a more accurate view of it. From the
cursory view here taken, it must clearly appear to have been an
arduous part.
Not less arduous must have been the task of marking the proper
line of partition between the authority of the general and that of
the State governments. Every man will be sensible of this
difficulty, in proportion as he has been accustomed to contemplate
and discriminate objects extensive and complicated in their nature.
The faculties of the mind itself have never yet been distinguished
and defined, with satisfactory precision, by all the efforts of the
most acute and metaphysical philosophers. Sense, perception,
judgment, desire, volition, memory, imagination, are found to be
separated by such delicate shades and minute gradations that their
boundaries have eluded the most subtle investigations, and remain a
pregnant source of ingenious disquisition and controversy. The
boundaries between the great kingdom of nature, and, still more,
between the various provinces, and lesser portions, into which they
are subdivided, afford another illustration of the same important
truth. The most sagacious and laborious naturalists have never yet
succeeded in tracing with certainty the line which separates the
district of vegetable life from the neighboring region of
unorganized matter, or which marks the termination of the former and
the commencement of the animal empire. A still greater obscurity
lies in the distinctive characters by which the objects in each of
these great departments of nature have been arranged and assorted.
When we pass from the works of nature, in which all the
delineations are perfectly accurate, and appear to be otherwise only
from the imperfection of the eye which surveys them, to the
institutions of man, in which the obscurity arises as well from the
object itself as from the organ by which it is contemplated, we must
perceive the necessity of moderating still further our expectations
and hopes from the efforts of human sagacity. Experience has
instructed us that no skill in the science of government has yet
been able to discriminate and define, with sufficient certainty, its
three great provinces the legislative, executive, and judiciary; or
even the privileges and powers of the different legislative branches.
Questions daily occur in the course of practice, which prove the
obscurity which reins in these subjects, and which puzzle the
greatest adepts in political science.
The experience of ages, with the continued and combined labors
of the most enlightened legislatures and jurists, has been equally
unsuccessful in delineating the several objects and limits of
different codes of laws and different tribunals of justice. The
precise extent of the common law, and the statute law, the maritime
law, the ecclesiastical law, the law of corporations, and other
local laws and customs, remains still to be clearly and finally
established in Great Britain, where accuracy in such subjects has
been more industriously pursued than in any other part of the world.
The jurisdiction of her several courts, general and local, of law,
of equity, of admiralty, etc., is not less a source of frequent and
intricate discussions, sufficiently denoting the indeterminate
limits by which they are respectively circumscribed. All new laws,
though penned with the greatest technical skill, and passed on the
fullest and most mature deliberation, are considered as more or less
obscure and equivocal, until their meaning be liquidated and
ascertained by a series of particular discussions and adjudications.
Besides the obscurity arising from the complexity of objects, and
the imperfection of the human faculties, the medium through which
the conceptions of men are conveyed to each other adds a fresh
embarrassment. The use of words is to express ideas. Perspicuity,
therefore, requires not only that the ideas should be distinctly
formed, but that they should be expressed by words distinctly and
exclusively appropriate to them. But no language is so copious as
to supply words and phrases for every complex idea, or so correct as
not to include many equivocally denoting different ideas. Hence it
must happen that however accurately objects may be discriminated in
themselves, and however accurately the discrimination may be
considered, the definition of them may be rendered inaccurate by the
inaccuracy of the terms in which it is delivered. And this
unavoidable inaccuracy must be greater or less, according to the
complexity and novelty of the objects defined. When the Almighty
himself condescends to address mankind in their own language, his
meaning, luminous as it must be, is rendered dim and doubtful by the
cloudy medium through which it is communicated.
Here, then, are three sources of vague and incorrect
definitions: indistinctness of the object, imperfection of the
organ of conception, inadequateness of the vehicle of ideas. Any
one of these must produce a certain degree of obscurity. The
convention, in delineating the boundary between the federal and
State jurisdictions, must have experienced the full effect of them
all.
To the difficulties already mentioned may be added the
interfering pretensions of the larger and smaller States. We cannot
err in supposing that the former would contend for a participation
in the government, fully proportioned to their superior wealth and
importance; and that the latter would not be less tenacious of the
equality at present enjoyed by them. We may well suppose that
neither side would entirely yield to the other, and consequently
that the struggle could be terminated only by compromise. It is
extremely probable, also, that after the ratio of representation had
been adjusted, this very compromise must have produced a fresh
struggle between the same parties, to give such a turn to the
organization of the government, and to the distribution of its
powers, as would increase the importance of the branches, in forming
which they had respectively obtained the greatest share of influence.
There are features in the Constitution which warrant each of these
suppositions; and as far as either of them is well founded, it
shows that the convention must have been compelled to sacrifice
theoretical propriety to the force of extraneous considerations.
Nor could it have been the large and small States only, which
would marshal themselves in opposition to each other on various
points. Other combinations, resulting from a difference of local
position and policy, must have created additional difficulties. As
every State may be divided into different districts, and its
citizens into different classes, which give birth to contending
interests and local jealousies, so the different parts of the United
States are distinguished from each other by a variety of
circumstances, which produce a like effect on a larger scale. And
although this variety of interests, for reasons sufficiently
explained in a former paper, may have a salutary influence on the
administration of the government when formed, yet every one must be
sensible of the contrary influence, which must have been experienced
in the task of forming it.
Would it be wonderful if, under the pressure of all these
difficulties, the convention should have been forced into some
deviations from that artificial structure and regular symmetry which
an abstract view of the subject might lead an ingenious theorist to
bestow on a Constitution planned in his closet or in his
imagination? The real wonder is that so many difficulties should
have been surmounted, and surmounted with a unanimity almost as
unprecedented as it must have been unexpected. It is impossible for
any man of candor to reflect on this circumstance without partaking
of the astonishment. It is impossible for the man of pious
reflection not to perceive in it a finger of that Almighty hand
which has been so frequently and signally extended to our relief in
the critical stages of the revolution.
We had occasion, in a former paper, to take notice of the
repeated trials which have been unsuccessfully made in the United
Netherlands for reforming the baneful and notorious vices of their
constitution. The history of almost all the great councils and
consultations held among mankind for reconciling their discordant
opinions, assuaging their mutual jealousies, and adjusting their
respective interests, is a history of factions, contentions, and
disappointments, and may be classed among the most dark and degraded
pictures which display the infirmities and depravities of the human
character. If, in a few scattered instances, a brighter aspect is
presented, they serve only as exceptions to admonish us of the
general truth; and by their lustre to darken the gloom of the
adverse prospect to which they are contrasted. In revolving the
causes from which these exceptions result, and applying them to the
particular instances before us, we are necessarily led to two
important conclusions. The first is, that the convention must have
enjoyed, in a very singular degree, an exemption from the
pestilential influence of party animosities the disease most
incident to deliberative bodies, and most apt to contaminate their
proceedings. The second conclusion is that all the deputations
composing the convention were satisfactorily accommodated by the
final act, or were induced to accede to it by a deep conviction of
the necessity of sacrificing private opinions and partial interests
to the public good, and by a despair of seeing this necessity
diminished by delays or by new experiments.

FEDERALIST No. 38

The Same Subject Continued, and the Incoherence of the Objections
to the New Plan Exposed
From the New York Packet.
Tuesday, January 15, 1788.

MADISON

To the People of the State of New York:
IT IS not a little remarkable that in every case reported by
ancient history, in which government has been established with
deliberation and consent, the task of framing it has not been
committed to an assembly of men, but has been performed by some
individual citizen of preeminent wisdom and approved integrity.
Minos, we learn, was the primitive founder of the government of
Crete, as Zaleucus was of that of the Locrians. Theseus first, and
after him Draco and Solon, instituted the government of Athens.
Lycurgus was the lawgiver of Sparta. The foundation of the
original government of Rome was laid by Romulus, and the work
completed by two of his elective successors, Numa and Tullius
Hostilius. On the abolition of royalty the consular administration
was substituted by Brutus, who stepped forward with a project for
such a reform, which, he alleged, had been prepared by Tullius
Hostilius, and to which his address obtained the assent and
ratification of the senate and people. This remark is applicable to
confederate governments also. Amphictyon, we are told, was the
author of that which bore his name. The Achaean league received its
first birth from Achaeus, and its second from Aratus.
What degree of agency these reputed lawgivers might have in
their respective establishments, or how far they might be clothed
with the legitimate authority of the people, cannot in every
instance be ascertained. In some, however, the proceeding was
strictly regular. Draco appears to have been intrusted by the
people of Athens with indefinite powers to reform its government and
laws. And Solon, according to Plutarch, was in a manner compelled,
by the universal suffrage of his fellow-citizens, to take upon him
the sole and absolute power of new-modeling the constitution. The
proceedings under Lycurgus were less regular; but as far as the
advocates for a regular reform could prevail, they all turned their
eyes towards the single efforts of that celebrated patriot and sage,
instead of seeking to bring about a revolution by the intervention
of a deliberative body of citizens.
Whence could it have proceeded, that a people, jealous as the
Greeks were of their liberty, should so far abandon the rules of
caution as to place their destiny in the hands of a single citizen?
Whence could it have proceeded, that the Athenians, a people who
would not suffer an army to be commanded by fewer than ten generals,
and who required no other proof of danger to their liberties than
the illustrious merit of a fellow-citizen, should consider one
illustrious citizen as a more eligible depositary of the fortunes of
themselves and their posterity, than a select body of citizens, from
whose common deliberations more wisdom, as well as more safety,
might have been expected? These questions cannot be fully answered,
without supposing that the fears of discord and disunion among a
number of counsellors exceeded the apprehension of treachery or
incapacity in a single individual. History informs us, likewise, of
the difficulties with which these celebrated reformers had to
contend, as well as the expedients which they were obliged to employ
in order to carry their reforms into effect. Solon, who seems to
have indulged a more temporizing policy, confessed that he had not
given to his countrymen the government best suited to their
happiness, but most tolerable to their prejudices. And Lycurgus,
more true to his object, was under the necessity of mixing a portion
of violence with the authority of superstition, and of securing his
final success by a voluntary renunciation, first of his country, and
then of his life. If these lessons teach us, on one hand, to admire
the improvement made by America on the ancient mode of preparing and
establishing regular plans of government, they serve not less, on
the other, to admonish us of the hazards and difficulties incident
to such experiments, and of the great imprudence of unnecessarily
multiplying them.
Is it an unreasonable conjecture, that the errors which may be
contained in the plan of the convention are such as have resulted
rather from the defect of antecedent experience on this complicated
and difficult subject, than from a want of accuracy or care in the
investigation of it; and, consequently such as will not be
ascertained until an actual trial shall have pointed them out? This
conjecture is rendered probable, not only by many considerations of
a general nature, but by the particular case of the Articles of
Confederation. It is observable that among the numerous objections
and amendments suggested by the several States, when these articles
were submitted for their ratification, not one is found which
alludes to the great and radical error which on actual trial has
discovered itself. And if we except the observations which New
Jersey was led to make, rather by her local situation, than by her
peculiar foresight, it may be questioned whether a single suggestion
was of sufficient moment to justify a revision of the system. There
is abundant reason, nevertheless, to suppose that immaterial as
these objections were, they would have been adhered to with a very
dangerous inflexibility, in some States, had not a zeal for their
opinions and supposed interests been stifled by the more powerful
sentiment of selfpreservation. One State, we may remember,
persisted for several years in refusing her concurrence, although
the enemy remained the whole period at our gates, or rather in the
very bowels of our country. Nor was her pliancy in the end effected
by a less motive, than the fear of being chargeable with protracting
the public calamities, and endangering the event of the contest.
Every candid reader will make the proper reflections on these
important facts.
A patient who finds his disorder daily growing worse, and that
an efficacious remedy can no longer be delayed without extreme
danger, after coolly revolving his situation, and the characters of
different physicians, selects and calls in such of them as he judges
most capable of administering relief, and best entitled to his
confidence. The physicians attend; the case of the patient is
carefully examined; a consultation is held; they are unanimously
agreed that the symptoms are critical, but that the case, with
proper and timely relief, is so far from being desperate, that it
may be made to issue in an improvement of his constitution. They
are equally unanimous in prescribing the remedy, by which this happy
effect is to be produced. The prescription is no sooner made known,
however, than a number of persons interpose, and, without denying
the reality or danger of the disorder, assure the patient that the
prescription will be poison to his constitution, and forbid him,
under pain of certain death, to make use of it. Might not the
patient reasonably demand, before he ventured to follow this advice,
that the authors of it should at least agree among themselves on
some other remedy to be substituted? And if he found them differing
as much from one another as from his first counsellors, would he not
act prudently in trying the experiment unanimously recommended by
the latter, rather than be hearkening to those who could neither
deny the necessity of a speedy remedy, nor agree in proposing one?
Such a patient and in such a situation is America at this moment.
She has been sensible of her malady. She has obtained a regular
and unanimous advice from men of her own deliberate choice. And she
is warned by others against following this advice under pain of the
most fatal consequences. Do the monitors deny the reality of her
danger? No. Do they deny the necessity of some speedy and powerful
remedy? No. Are they agreed, are any two of them agreed, in their
objections to the remedy proposed, or in the proper one to be
substituted? Let them speak for themselves. This one tells us that
the proposed Constitution ought to be rejected, because it is not a
confederation of the States, but a government over individuals.
Another admits that it ought to be a government over individuals to
a certain extent, but by no means to the extent proposed. A third
does not object to the government over individuals, or to the extent
proposed, but to the want of a bill of rights. A fourth concurs in
the absolute necessity of a bill of rights, but contends that it
ought to be declaratory, not of the personal rights of individuals,
but of the rights reserved to the States in their political capacity.
A fifth is of opinion that a bill of rights of any sort would be
superfluous and misplaced, and that the plan would be
unexceptionable but for the fatal power of regulating the times and
places of election. An objector in a large State exclaims loudly
against the unreasonable equality of representation in the Senate.
An objector in a small State is equally loud against the dangerous
inequality in the House of Representatives. From this quarter, we
are alarmed with the amazing expense, from the number of persons who
are to administer the new government. From another quarter, and
sometimes from the same quarter, on another occasion, the cry is
that the Congress will be but a shadow of a representation, and that
the government would be far less objectionable if the number and the
expense were doubled. A patriot in a State that does not import or
export, discerns insuperable objections against the power of direct
taxation. The patriotic adversary in a State of great exports and
imports, is not less dissatisfied that the whole burden of taxes may
be thrown on consumption. This politician discovers in the
Constitution a direct and irresistible tendency to monarchy; that
is equally sure it will end in aristocracy. Another is puzzled to
say which of these shapes it will ultimately assume, but sees
clearly it must be one or other of them; whilst a fourth is not
wanting, who with no less confidence affirms that the Constitution
is so far from having a bias towards either of these dangers, that
the weight on that side will not be sufficient to keep it upright
and firm against its opposite propensities. With another class of
adversaries to the Constitution the language is that the
legislative, executive, and judiciary departments are intermixed in
such a manner as to contradict all the ideas of regular government
and all the requisite precautions in favor of liberty. Whilst this
objection circulates in vague and general expressions, there are but
a few who lend their sanction to it. Let each one come forward with
his particular explanation, and scarce any two are exactly agreed
upon the subject. In the eyes of one the junction of the Senate
with the President in the responsible function of appointing to
offices, instead of vesting this executive power in the Executive
alone, is the vicious part of the organization. To another, the
exclusion of the House of Representatives, whose numbers alone could
be a due security against corruption and partiality in the exercise
of such a power, is equally obnoxious. With another, the admission
of the President into any share of a power which ever must be a
dangerous engine in the hands of the executive magistrate, is an
unpardonable violation of the maxims of republican jealousy. No
part of the arrangement, according to some, is more inadmissible
than the trial of impeachments by the Senate, which is alternately a
member both of the legislative and executive departments, when this
power so evidently belonged to the judiciary department. ``We
concur fully,'' reply others, ``in the objection to this part of the
plan, but we can never agree that a reference of impeachments to the
judiciary authority would be an amendment of the error. Our
principal dislike to the organization arises from the extensive
powers already lodged in that department.'' Even among the zealous
patrons of a council of state the most irreconcilable variance is
discovered concerning the mode in which it ought to be constituted.
The demand of one gentleman is, that the council should consist of
a small number to be appointed by the most numerous branch of the
legislature. Another would prefer a larger number, and considers it
as a fundamental condition that the appointment should be made by
the President himself.
As it can give no umbrage to the writers against the plan of the
federal Constitution, let us suppose, that as they are the most
zealous, so they are also the most sagacious, of those who think the
late convention were unequal to the task assigned them, and that a
wiser and better plan might and ought to be substituted. Let us
further suppose that their country should concur, both in this
favorable opinion of their merits, and in their unfavorable opinion
of the convention; and should accordingly proceed to form them into
a second convention, with full powers, and for the express purpose
of revising and remoulding the work of the first. Were the
experiment to be seriously made, though it required some effort to
view it seriously even in fiction, I leave it to be decided by the
sample of opinions just exhibited, whether, with all their enmity to
their predecessors, they would, in any one point, depart so widely
from their example, as in the discord and ferment that would mark
their own deliberations; and whether the Constitution, now before
the public, would not stand as fair a chance for immortality, as
Lycurgus gave to that of Sparta, by making its change to depend on
his own return from exile and death, if it were to be immediately
adopted, and were to continue in force, not until a BETTER, but
until ANOTHER should be agreed upon by this new assembly of
lawgivers.
It is a matter both of wonder and regret, that those who raise
so many objections against the new Constitution should never call to
mind the defects of that which is to be exchanged for it. It is not
necessary that the former should be perfect; it is sufficient that
the latter is more imperfect. No man would refuse to give brass for
silver or gold, because the latter had some alloy in it. No man
would refuse to quit a shattered and tottering habitation for a firm
and commodious building, because the latter had not a porch to it,
or because some of the rooms might be a little larger or smaller, or
the ceilings a little higher or lower than his fancy would have
planned them. But waiving illustrations of this sort, is it not
manifest that most of the capital objections urged against the new
system lie with tenfold weight against the existing Confederation?
Is an indefinite power to raise money dangerous in the hands of the
federal government? The present Congress can make requisitions to
any amount they please, and the States are constitutionally bound to
furnish them; they can emit bills of credit as long as they will
pay for the paper; they can borrow, both abroad and at home, as
long as a shilling will be lent. Is an indefinite power to raise
troops dangerous? The Confederation gives to Congress that power
also; and they have already begun to make use of it. Is it
improper and unsafe to intermix the different powers of government
in the same body of men? Congress, a single body of men, are the
sole depositary of all the federal powers. Is it particularly
dangerous to give the keys of the treasury, and the command of the
army, into the same hands? The Confederation places them both in
the hands of Congress. Is a bill of rights essential to liberty?
The Confederation has no bill of rights. Is it an objection
against the new Constitution, that it empowers the Senate, with the
concurrence of the Executive, to make treaties which are to be the
laws of the land? The existing Congress, without any such control,
can make treaties which they themselves have declared, and most of
the States have recognized, to be the supreme law of the land. Is
the importation of slaves permitted by the new Constitution for
twenty years? By the old it is permitted forever.
I shall be told, that however dangerous this mixture of powers
may be in theory, it is rendered harmless by the dependence of
Congress on the State for the means of carrying them into practice;
that however large the mass of powers may be, it is in fact a
lifeless mass. Then, say I, in the first place, that the
Confederation is chargeable with the still greater folly of
declaring certain powers in the federal government to be absolutely
necessary, and at the same time rendering them absolutely nugatory;
and, in the next place, that if the Union is to continue, and no
better government be substituted, effective powers must either be
granted to, or assumed by, the existing Congress; in either of
which events, the contrast just stated will hold good. But this is
not all. Out of this lifeless mass has already grown an excrescent
power, which tends to realize all the dangers that can be
apprehended from a defective construction of the supreme government
of the Union. It is now no longer a point of speculation and hope,
that the Western territory is a mine of vast wealth to the United
States; and although it is not of such a nature as to extricate
them from their present distresses, or for some time to come, to
yield any regular supplies for the public expenses, yet must it
hereafter be able, under proper management, both to effect a gradual
discharge of the domestic debt, and to furnish, for a certain
period, liberal tributes to the federal treasury. A very large
proportion of this fund has been already surrendered by individual
States; and it may with reason be expected that the remaining
States will not persist in withholding similar proofs of their
equity and generosity. We may calculate, therefore, that a rich and
fertile country, of an area equal to the inhabited extent of the
United States, will soon become a national stock. Congress have
assumed the administration of this stock. They have begun to render
it productive. Congress have undertaken to do more: they have
proceeded to form new States, to erect temporary governments, to
appoint officers for them, and to prescribe the conditions on which
such States shall be admitted into the Confederacy. All this has
been done; and done without the least color of constitutional
authority. Yet no blame has been whispered; no alarm has been
sounded. A GREAT and INDEPENDENT fund of revenue is passing into
the hands of a SINGLE BODY of men, who can RAISE TROOPS to an
INDEFINITE NUMBER, and appropriate money to their support for an
INDEFINITE PERIOD OF TIME. And yet there are men, who have not only
been silent spectators of this prospect, but who are advocates for
the system which exhibits it; and, at the same time, urge against
the new system the objections which we have heard. Would they not
act with more consistency, in urging the establishment of the
latter, as no less necessary to guard the Union against the future
powers and resources of a body constructed like the existing
Congress, than to save it from the dangers threatened by the present
impotency of that Assembly?
I mean not, by any thing here said, to throw censure on the
measures which have been pursued by Congress. I am sensible they
could not have done otherwise. The public interest, the necessity
of the case, imposed upon them the task of overleaping their
constitutional limits. But is not the fact an alarming proof of the
danger resulting from a government which does not possess regular
powers commensurate to its objects? A dissolution or usurpation is
the dreadful dilemma to which it is continually exposed.
PUBLIUS.

FEDERALIST No. 39

The Conformity of the Plan to Republican Principles
For the Independent Journal.

MADISON

To the People of the State of New York:
THE last paper having concluded the observations which were
meant to introduce a candid survey of the plan of government
reported by the convention, we now proceed to the execution of that
part of our undertaking.
The first question that offers itself is, whether the general
form and aspect of the government be strictly republican. It is
evident that no other form would be reconcilable with the genius of
the people of America; with the fundamental principles of the
Revolution; or with that honorable determination which animates
every votary of freedom, to rest all our political experiments on
the capacity of mankind for self-government. If the plan of the
convention, therefore, be found to depart from the republican
character, its advocates must abandon it as no longer defensible.
What, then, are the distinctive characters of the republican
form? Were an answer to this question to be sought, not by
recurring to principles, but in the application of the term by
political writers, to the constitution of different States, no
satisfactory one would ever be found. Holland, in which no particle
of the supreme authority is derived from the people, has passed
almost universally under the denomination of a republic. The same
title has been bestowed on Venice, where absolute power over the
great body of the people is exercised, in the most absolute manner,
by a small body of hereditary nobles. Poland, which is a mixture of
aristocracy and of monarchy in their worst forms, has been dignified
with the same appellation. The government of England, which has one
republican branch only, combined with an hereditary aristocracy and
monarchy, has, with equal impropriety, been frequently placed on the
list of republics. These examples, which are nearly as dissimilar
to each other as to a genuine republic, show the extreme inaccuracy
with which the term has been used in political disquisitions.
If we resort for a criterion to the different principles on
which different forms of government are established, we may define a
republic to be, or at least may bestow that name on, a government
which derives all its powers directly or indirectly from the great
body of the people, and is administered by persons holding their
offices during pleasure, for a limited period, or during good
behavior. It is ESSENTIAL to such a government that it be derived
from the great body of the society, not from an inconsiderable
proportion, or a favored class of it; otherwise a handful of
tyrannical nobles, exercising their oppressions by a delegation of
their powers, might aspire to the rank of republicans, and claim for
their government the honorable title of republic. It is SUFFICIENT
for such a government that the persons administering it be
appointed, either directly or indirectly, by the people; and that
they hold their appointments by either of the tenures just
specified; otherwise every government in the United States, as well
as every other popular government that has been or can be well
organized or well executed, would be degraded from the republican
character. According to the constitution of every State in the
Union, some or other of the officers of government are appointed
indirectly only by the people. According to most of them, the chief
magistrate himself is so appointed. And according to one, this mode
of appointment is extended to one of the co-ordinate branches of the
legislature. According to all the constitutions, also, the tenure
of the highest offices is extended to a definite period, and in many
instances, both within the legislative and executive departments, to
a period of years. According to the provisions of most of the
constitutions, again, as well as according to the most respectable
and received opinions on the subject, the members of the judiciary
department are to retain their offices by the firm tenure of good
behavior.
On comparing the Constitution planned by the convention with the
standard here fixed, we perceive at once that it is, in the most
rigid sense, conformable to it. The House of Representatives, like
that of one branch at least of all the State legislatures, is
elected immediately by the great body of the people. The Senate,
like the present Congress, and the Senate of Maryland, derives its
appointment indirectly from the people. The President is indirectly
derived from the choice of the people, according to the example in
most of the States. Even the judges, with all other officers of the
Union, will, as in the several States, be the choice, though a
remote choice, of the people themselves, the duration of the
appointments is equally conformable to the republican standard, and
to the model of State constitutions The House of Representatives is
periodically elective, as in all the States; and for the period of
two years, as in the State of South Carolina. The Senate is
elective, for the period of six years; which is but one year more
than the period of the Senate of Maryland, and but two more than
that of the Senates of New York and Virginia. The President is to
continue in office for the period of four years; as in New York and
Delaware, the chief magistrate is elected for three years, and in
South Carolina for two years. In the other States the election is
annual. In several of the States, however, no constitutional
provision is made for the impeachment of the chief magistrate. And
in Delaware and Virginia he is not impeachable till out of office.
The President of the United States is impeachable at any time
during his continuance in office. The tenure by which the judges
are to hold their places, is, as it unquestionably ought to be, that
of good behavior. The tenure of the ministerial offices generally,
will be a subject of legal regulation, conformably to the reason of
the case and the example of the State constitutions.
Could any further proof be required of the republican complexion
of this system, the most decisive one might be found in its absolute
prohibition of titles of nobility, both under the federal and the
State governments; and in its express guaranty of the republican
form to each of the latter.
``But it was not sufficient,'' say the adversaries of the
proposed Constitution, ``for the convention to adhere to the
republican form. They ought, with equal care, to have preserved the
FEDERAL form, which regards the Union as a CONFEDERACY of sovereign
states; instead of which, they have framed a NATIONAL government,
which regards the Union as a CONSOLIDATION of the States.'' And it
is asked by what authority this bold and radical innovation was
undertaken? The handle which has been made of this objection
requires that it should be examined with some precision.
Without inquiring into the accuracy of the distinction on which
the objection is founded, it will be necessary to a just estimate of
its force, first, to ascertain the real character of the government
in question; secondly, to inquire how far the convention were
authorized to propose such a government; and thirdly, how far the
duty they owed to their country could supply any defect of regular
authority.
First. In order to ascertain the real character of the
government, it may be considered in relation to the foundation on
which it is to be established; to the sources from which its
ordinary powers are to be drawn; to the operation of those powers;
to the extent of them; and to the authority by which future
changes in the government are to be introduced.
On examining the first relation, it appears, on one hand, that
the Constitution is to be founded on the assent and ratification of

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