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they do not sufficiently enlarge their policy to embrace the
collective welfare of their particular State, how can it be
imagined that they will make the aggregate prosperity of the
Union, and the dignity and respectability of its government, the
objects of their affections and consultations? For the same
reason that the members of the State legislatures will be
unlikely to attach themselves sufficiently to national objects,
the members of the federal legislature will be likely to attach
themselves too much to local objects. The States will be to the
latter what counties and towns are to the former. Measures will
too often be decided according to their probable effect, not on
the national prosperity and happiness, but on the prejudices,
interests, and pursuits of the governments and people of the
individual States. What is the spirit that has in general
characterized the proceedings of Congress? A perusal of their
journals, as well as the candid acknowledgments of such as have
had a seat in that assembly, will inform us, that the members
have but too frequently displayed the character, rather of
partisans of their respective States, than of impartial guardians
of a common interest; that where on one occasion improper
sacrifices have been made of local considerations, to the
aggrandizement of the federal government, the great interests of
the nation have suffered on a hundred, from an undue attention to
the local prejudices, interests, and views of the particular
States. I mean not by these reflections to insinuate, that the
new federal government will not embrace a more enlarged plan of
policy than the existing government may have pursued; much less,
that its views will be as confined as those of the State
legislatures; but only that it will partake sufficiently of the
spirit of both, to be disinclined to invade the rights of the
individual States, or the preorgatives of their governments. The
motives on the part of the State governments, to augment their
prerogatives by defalcations from the federal government, will be
overruled by no reciprocal predispositions in the members. Were
it admitted, however, that the Federal government may feel an
equal disposition with the State governments to extend its power
beyond the due limits, the latter would still have the advantage
in the means of defeating such encroachments. If an act of a
particular State, though unfriendly to the national government,
be generally popular in that State and should not too grossly
violate the oaths of the State officers, it is executed
immediately and, of course, by means on the spot and depending on
the State alone. The opposition of the federal government, or the
interposition of federal officers, would but inflame the zeal of
all parties on the side of the State, and the evil could not be
prevented or repaired, if at all, without the employment of means
which must always be resorted to with reluctance and difficulty.
On the other hand, should an unwarrantable measure of the federal
government be unpopular in particular States, which would seldom
fail to be the case, or even a warrantable measure be so, which
may sometimes be the case, the means of opposition to it are
powerful and at hand. The disquietude of the people; their
repugnance and, perhaps, refusal to co-operate with the officers
of the Union; the frowns of the executive magistracy of the
State; the embarrassments created by legislative devices, which
would often be added on such occasions, would oppose, in any
State, difficulties not to be despised; would form, in a large
State, very serious impediments; and where the sentiments of
several adjoining States happened to be in unison, would present
obstructions which the federal government would hardly be willing
to encounter. But ambitious encroachments of the federal
government, on the authority of the State governments, would not
excite the opposition of a single State, or of a few States
only. They would be signals of general alarm. Every government
would espouse the common cause. A correspondence would be
opened. Plans of resistance would be concerted. One spirit would
animate and conduct the whole. The same combinations, in short,
would result from an apprehension of the federal, as was produced
by the dread of a foreign, yoke; and unless the projected
innovations should be voluntarily renounced, the same appeal to
a trial of force would be made in the one case as was made in the
other. But what degree of madness could ever drive the federal
government to such an extremity. In the contest with Great
Britain, one part of the empire was employed against the other.
The more numerous part invaded the rights of the less numerous
part. The attempt was unjust and unwise; but it was not in
speculation absolutely chimerical. But what would be the contest
in the case we are supposing? Who would be the parties? A few
representatives of the people would be opposed to the people
themselves; or rather one set of representatives would be
contending against thirteen sets of representatives, with the
whole body of their common constituents on the side of the
latter. The only refuge left for those who prophesy the downfall
of the State governments is the visionary supposition that the
federal government may previously accumulate a military force for
the projects of ambition. The reasonings contained in these
papers must have been employed to little purpose indeed, if it
could be necessary now to disprove the reality of this danger.
That the people and the States should, for a sufficient period of
time, elect an uninterrupted succession of men ready to betray
both; that the traitors should, throughout this period,
uniformly and systematically pursue some fixed plan for the
extension of the military establishment; that the governments
and the people of the States should silently and patiently behold
the gathering storm, and continue to supply the materials, until
it should be prepared to burst on their own heads, must appear to
every one more like the incoherent dreams of a delirious
jealousy, or the misjudged exaggerations of a counterfeit zeal,
than like the sober apprehensions of genuine patriotism.
Extravagant as the supposition is, let it however be made. Let a
regular army, fully equal to the resources of the country, be
formed; and let it be entirely at the devotion of the federal
government; still it would not be going too far to say, that the
State governments, with the people on their side, would be able
to repel the danger. The highest number to which, according to
the best computation, a standing army can be carried in any
country, does not exceed one hundredth part of the whole number
of souls; or one twenty-fifth part of the number able to bear
arms. This proportion would not yield, in the United States, an
army of more than twenty-five or thirty thousand men. To these
would be opposed a militia amounting to near half a million of
citizens with arms in their hands, officered by men chosen from
among themselves, fighting for their common liberties, and united
and conducted by governments possessing their affections and
confidence. It may well be doubted, whether a militia thus
circumstanced could ever be conquered by such a proportion of
regular troops. Those who are best acquainted with the last
successful resistance of this country against the British arms,
will be most inclined to deny the possibility of it. Besides the
advantage of being armed, which the Americans possess over the
people of almost every other nation, the existence of
subordinate governments, to which the people are attached, and by
which the militia officers are appointed, forms a barrier against
the enterprises of ambition, more insurmountable than any which a
simple government of any form can admit of. Notwithstanding the
military establishments in the several kingdoms of Europe, which
are carried as far as the public resources will bear, the
governments are afraid to trust the people with arms. And it is
not certain, that with this aid alone they would not be able to
shake off their yokes. But were the people to possess the
additional advantages of local governments chosen by themselves,
who could collect the national will and direct the national
force, and of officers appointed out of the militia, by these
governments, and attached both to them and to the militia, it may
be affirmed with the greatest assurance, that the throne of every
tyranny in Europe would be speedily overturned in spite of the
legions which surround it. Let us not insult the free and gallant
citizens of America with the suspicion, that they would be less
able to defend the rights of which they would be in actual
possession, than the debased subjects of arbitrary power would be
to rescue theirs from the hands of their oppressors. Let us
rather no longer insult them with the supposition that they can
ever reduce themselves to the necessity of making the experiment,
by a blind and tame submission to the long train of insidious
measures which must precede and produce it. The argument under
the present head may be put into a very concise form, which
appears altogether conclusive. Either the mode in which the
federal government is to be constructed will render it
sufficiently dependent on the people, or it will not. On the
first supposition, it will be restrained by that dependence from
forming schemes obnoxious to their constituents. On the other
supposition, it will not possess the confidence of the people,
and its schemes of usurpation will be easily defeated by the
State governments, who will be supported by the people. On
summing up the considerations stated in this and the last paper,
they seem to amount to the most convincing evidence, that the
powers proposed to be lodged in the federal government are as
little formidable to those reserved to the individual States, as
they are indispensably necessary to accomplish the purposes of
the Union; and that all those alarms which have been sounded, of
a meditated and consequential annihilation of the State
governments, must, on the most favorable interpretation, be
ascribed to the chimerical fears of the authors of them. PUBLIUS.


The Particular Structure of the New Government and the
Distribution of Power Among Its Different Parts
From the New York Packet. Friday, February 1, 1788.


To the People of the State of New York:
HAVING reviewed the general form of the proposed government and
the general mass of power allotted to it, I proceed to examine
the particular structure of this government, and the distribution
of this mass of power among its constituent parts. One of the
principal objections inculcated by the more respectable
adversaries to the Constitution, is its supposed violation of the
political maxim, that the legislative, executive, and judiciary
departments ought to be separate and distinct. In the structure
of the federal government, no regard, it is said, seems to have
been paid to this essential precaution in favor of liberty. The
several departments of power are distributed and blended in such
a manner as at once to destroy all symmetry and beauty of form,
and to expose some of the essential parts of the edifice to the
danger of being crushed by the disproportionate weight of other
parts. No political truth is certainly of greater intrinsic
value, or is stamped with the authority of more enlightened
patrons of liberty, than that on which the objection is founded.
The accumulation of all powers, legislative, executive, and
judiciary, in the same hands, whether of one, a few, or many, and
whether hereditary, selfappointed, or elective, may justly be
pronounced the very definition of tyranny. Were the federal
Constitution, therefore, really chargeable with the accumulation
of power, or with a mixture of powers, having a dangerous
tendency to such an accumulation, no further arguments would be
necessary to inspire a universal reprobation of the system. I
persuade myself, however, that it will be made apparent to every
one, that the charge cannot be supported, and that the maxim on
which it relies has been totally misconceived and misapplied. In
order to form correct ideas on this important subject, it will be
proper to investigate the sense in which the preservation of
liberty requires that the three great departments of power should
be separate and distinct. The oracle who is always consulted and
cited on this subject is the celebrated Montesquieu. If he be not
the author of this invaluable precept in the science of politics,
he has the merit at least of displaying and recommending it most
effectually to the attention of mankind. Let us endeavor, in the
first place, to ascertain his meaning on this point. The British
Constitution was to Montesquieu what Homer has been to the
didactic writers on epic poetry. As the latter have considered
the work of the immortal bard as the perfect model from which the
principles and rules of the epic art were to be drawn, and by
which all similar works were to be judged, so this great
political critic appears to have viewed the Constitution of
England as the standard, or to use his own expression, as the
mirror of political liberty; and to have delivered, in the form
of elementary truths, the several characteristic principles of
that particular system. That we may be sure, then, not to mistake
his meaning in this case, let us recur to the source from which
the maxim was drawn.
On the slightest view of the British
Constitution, we must perceive that the legislative, executive,
and judiciary departments are by no means totally separate and
distinct from each other. The executive magistrate forms an
integral part of the legislative authority. He alone has the
prerogative of making treaties with foreign sovereigns, which,
when made, have, under certain limitations, the force of
legislative acts. All the members of the judiciary department are
appointed by him, can be removed by him on the address of the two
Houses of Parliament, and form, when he pleases to consult them,
one of his constitutional councils. One branch of the legislative
department forms also a great constitutional council to the
executive chief, as, on another hand, it is the sole depositary
of judicial power in cases of impeachment, and is invested with
the supreme appellate jurisdiction in all other cases. The
judges, again, are so far connected with the legislative
department as often to attend and participate in its
deliberations, though not admitted to a legislative vote. From
these facts, by which Montesquieu was guided, it may clearly be
inferred that, in saying ``There can be no liberty where the
legislative and executive powers are united in the same person,
or body of magistrates,'' or, ``if the power of judging be not
separated from the legislative and executive powers,'' he did not
mean that these departments ought to have no PARTIAL AGENCY in,
or no CONTROL over, the acts of each other. His meaning, as his
own words import, and still more conclusively as illustrated by
the example in his eye, can amount to no more than this, that
where the WHOLE power of one department is exercised by the same
hands which possess the WHOLE power of another department, the
fundamental principles of a free constitution are subverted. This
would have been the case in the constitution examined by him, if
the king, who is the sole executive magistrate, had possessed
also the complete legislative power, or the supreme
administration of justice; or if the entire legislative body had
possessed the supreme judiciary, or the supreme executive
authority. This, however, is not among the vices of that
constitution. The magistrate in whom the whole executive power
resides cannot of himself make a law, though he can put a
negative on every law; nor administer justice in person, though
he has the appointment of those who do administer it. The judges
can exercise no executive prerogative, though they are shoots
from the executive stock; nor any legislative function, though
they may be advised with by the legislative councils. The entire
legislature can perform no judiciary act, though by the joint act
of two of its branches the judges may be removed from their
offices, and though one of its branches is possessed of the
judicial power in the last resort. The entire legislature, again,
can exercise no executive prerogative, though one of its branches
constitutes the supreme executive magistracy, and another, on the
impeachment of a third, can try and condemn all the subordinate
officers in the executive department. The reasons on which
Montesquieu grounds his maxim are a further demonstration of his
meaning. ``When the legislative and executive powers are united
in the same person or body,'' says he, ``there can be no liberty,
because apprehensions may arise lest THE SAME monarch or senate
should ENACT tyrannical laws to EXECUTE them in a tyrannical
manner. '' Again: ``Were the power of judging joined with the
legislative, the life and liberty of the subject would be exposed
to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave
with all the violence of AN OPPRESSOR. '' Some of these reasons
are more fully explained in other passages; but briefly stated as
they are here, they sufficiently establish the meaning which we
have put on this celebrated maxim of this celebrated author.

If we look into the constitutions of the several States, we find
that, notwithstanding the emphatical and, in some instances, the
unqualified terms in which this axiom has been laid down, there
is not a single instance in which the several departments of
power have been kept absolutely separate and distinct. New
Hampshire, whose constitution was the last formed, seems to have
been fully aware of the impossibility and inexpediency of
avoiding any mixture whatever of these departments, and has
qualified the doctrine by declaring ``that the legislative,
executive, and judiciary powers ought to be kept as separate
from, and independent of, each other AS THE NATURE OF A FREE
accordingly mixes these departments in several respects. The
Senate, which is a branch of the legislative department, is also
a judicial tribunal for the trial of impeachments. The
President, who is the head of the executive department, is the
presiding member also of the Senate; and, besides an equal vote
in all cases, has a casting vote in case of a tie. The executive
head is himself eventually elective every year by the
legislative department, and his council is every year chosen by
and from the members of the same department. Several of the
officers of state are also appointed by the legislature. And the
members of the judiciary department are appointed by the
executive department. The constitution of Massachusetts has
observed a sufficient though less pointed caution, in expressing
this fundamental article of liberty. It declares ``that the
legislative department shall never exercise the executive and
judicial powers, or either of them; the executive shall never
exercise the legislative and judicial powers, or either of them;
the judicial shall never exercise the legislative and executive
powers, or either of them. '' This declaration corresponds
precisely with the doctrine of Montesquieu, as it has been
explained, and is not in a single point violated by the plan of
the convention. It goes no farther than to prohibit any one of
the entire departments from exercising the powers of another
department. In the very Constitution to which it is prefixed, a
partial mixture of powers has been admitted. The executive
magistrate has a qualified negative on the legislative body, and
the Senate, which is a part of the legislature, is a court of
impeachment for members both of the executive and judiciary
departments. The members of the judiciary department, again, are
appointable by the executive department, and removable by the
same authority on the address of the two legislative branches.
Lastly, a number of the officers of government are annually
appointed by the legislative department. As the appointment to
offices, particularly executive offices, is in its nature an
executive function, the compilers of the Constitution have, in
this last point at least, violated the rule established by
themselves. I pass over the constitutions of Rhode Island and
Connecticut, because they were formed prior to the Revolution,
and even before the principle under examination had become an
object of political attention. The constitution of New York
contains no declaration on this subject; but appears very
clearly to have been framed with an eye to the danger of
improperly blending the different departments. It gives,
nevertheless, to the executive magistrate, a partial control over
the legislative department; and, what is more, gives a like
control to the judiciary department; and even blends the
executive and judiciary departments in the exercise of this
control. In its council of appointment members of the
legislative are associated with the executive authority, in the
appointment of officers, both executive and judiciary. And its
court for the trial of impeachments and correction of errors is
to consist of one branch of the legislature and the principal
members of the judiciary department. The constitution of New
Jersey has blended the different powers of government more than
any of the preceding. The governor, who is the executive
magistrate, is appointed by the legislature; is chancellor and
ordinary, or surrogate of the State; is a member of the Supreme
Court of Appeals, and president, with a casting vote, of one of
the legislative branches. The same legislative branch acts again
as executive council of the governor, and with him constitutes
the Court of Appeals. The members of the judiciary department are
appointed by the legislative department and removable by one
branch of it, on the impeachment of the other. According to the
constitution of Pennsylvania, the president, who is the head of
the executive department, is annually elected by a vote in which
the legislative department predominates. In conjunction with an
executive council, he appoints the members of the judiciary
department, and forms a court of impeachment for trial of all
officers, judiciary as well as executive. The judges of the
Supreme Court and justices of the peace seem also to be removable
by the legislature; and the executive power of pardoning in
certain cases, to be referred to the same department. The members
of the executive council are made EX-OFFICIO justices of peace
throughout the State. In Delaware, the chief executive magistrate
is annually elected by the legislative department. The speakers
of the two legislative branches are vice-presidents in the
executive department. The executive chief, with six others,
appointed, three by each of the legislative branches constitutes
the Supreme Court of Appeals; he is joined with the legislative
department in the appointment of the other judges. Throughout the
States, it appears that the members of the legislature may at the
same time be justices of the peace; in this State, the members of
one branch of it are EX-OFFICIO justices of the peace; as are
also the members of the executive council. The principal officers
of the executive department are appointed by the legislative; and
one branch of the latter forms a court of impeachments. All
officers may be removed on address of the legislature. Maryland
has adopted the maxim in the most unqualified terms; declaring
that the legislative, executive, and judicial powers of
government ought to be forever separate and distinct from each
other. Her constitution, notwithstanding, makes the executive
magistrate appointable by the legislative department; and the
members of the judiciary by the executive department. The
language of Virginia is still more pointed on this subject. Her
constitution declares, ``that the legislative, executive, and
judiciary departments shall be separate and distinct; so that
neither exercise the powers properly belonging to the other; nor
shall any person exercise the powers of more than one of them at
the same time, except that the justices of county courts shall be
eligible to either House of Assembly. '' Yet we find not only
this express exception, with respect to the members of the
inferior courts, but that the chief magistrate, with his
executive council, are appointable by the legislature; that two
members of the latter are triennially displaced at the pleasure
of the legislature; and that all the principal offices, both
executive and judiciary, are filled by the same department. The
executive prerogative of pardon, also, is in one case vested in
the legislative department. The constitution of North Carolina,
which declares ``that the legislative, executive, and supreme
judicial powers of government ought to be forever separate and
distinct from each other,'' refers, at the same time, to the
legislative department, the appointment not only of the executive
chief, but all the principal officers within both that and the
judiciary department. In South Carolina, the constitution makes
the executive magistracy eligible by the legislative department.
It gives to the latter, also, the appointment of the members of
the judiciary department, including even justices of the peace
and sheriffs; and the appointment of officers in the executive
department, down to captains in the army and navy of the State.
In the constitution of Georgia, where it is declared ``that the
legislative, executive, and judiciary departments shall be
separate and distinct, so that neither exercise the powers
properly belonging to the other,'' we find that the executive
department is to be filled by appointments of the legislature;
and the executive prerogative of pardon to be finally exercised
by the same authority. Even justices of the peace are to be
appointed by the legislature. In citing these cases, in which
the legislative, executive, and judiciary departments have not
been kept totally separate and distinct, I wish not to be
regarded as an advocate for the particular organizations of the
several State governments. I am fully aware that among the many
excellent principles which they exemplify, they carry strong
marks of the haste, and still stronger of the inexperience, under
which they were framed. It is but too obvious that in some
instances the fundamental principle under consideration has been
violated by too great a mixture, and even an actual
consolidation, of the different powers; and that in no instance
has a competent provision been made for maintaining in practice
the separation delineated on paper. What I have wished to evince
is, that the charge brought against the proposed Constitution, of
violating the sacred maxim of free government, is warranted
neither by the real meaning annexed to that maxim by its author,
nor by the sense in which it has hitherto been understood in
America. This interesting subject will be resumed in the ensuing
paper. PUBLIUS.


These Departments Should Not Be So Far Separated as to Have No
Constitutional Control Over Each Other
From the New York Packet. Friday, February 1, 1788.


To the People of the State of New York:
IT WAS shown in the last paper that the political apothegm there
examined does not require that the legislative, executive, and
judiciary departments should be wholly unconnected with each
other. I shall undertake, in the next place, to show that unless
these departments be so far connected and blended as to give to
each a constitutional control over the others, the degree of
separation which the maxim requires, as essential to a free
government, can never in practice be duly maintained. It is
agreed on all sides, that the powers properly belonging to one of
the departments ought not to be directly and completely
administered by either of the other departments. It is equally
evident, that none of them ought to possess, directly or
indirectly, an overruling influence over the others, in the
administration of their respective powers. It will not be denied,
that power is of an encroaching nature, and that it ought to be
effectually restrained from passing the limits assigned to it.
After discriminating, therefore, in theory, the several classes
of power, as they may in their nature be legislative, executive,
or judiciary, the next and most difficult task is to provide some
practical security for each, against the invasion of the others.
What this security ought to be, is the great problem to be
solved. Will it be sufficient to mark, with precision, the
boundaries of these departments, in the constitution of the
government, and to trust to these parchment barriers against the
encroaching spirit of power? This is the security which appears
to have been principally relied on by the compilers of most of
the American constitutions. But experience assures us, that the
efficacy of the provision has been greatly overrated; and that
some more adequate defense is indispensably necessary for the
more feeble, against the more powerful, members of the
government. The legislative department is everywhere extending
the sphere of its activity, and drawing all power into its
impetuous vortex. The founders of our republics have so much
merit for the wisdom which they have displayed, that no task can
be less pleasing than that of pointing out the errors into which
they have fallen. A respect for truth, however, obliges us to
remark, that they seem never for a moment to have turned their
eyes from the danger to liberty from the overgrown and
all-grasping prerogative of an hereditary magistrate, supported
and fortified by an hereditary branch of the legislative
authority. They seem never to have recollected the danger from
legislative usurpations, which, by assembling all power in the
same hands, must lead to the same tyranny as is threatened by
executive usurpations. In a government where numerous and
extensive prerogatives are placed in the hands of an hereditary
monarch, the executive department is very justly regarded as the
source of danger, and watched with all the jealousy which a zeal
for liberty ought to inspire. In a democracy, where a multitude
of people exercise in person the legislative functions, and are
continually exposed, by their incapacity for regular deliberation
and concerted measures, to the ambitious intrigues of their
executive magistrates, tyranny may well be apprehended, on some
favorable emergency, to start up in the same quarter. But in a
representative republic, where the executive magistracy is
carefully limited; both in the extent and the duration of its
power; and where the legislative power is exercised by an
assembly, which is inspired, by a supposed influence over the
people, with an intrepid confidence in its own strength; which is
sufficiently numerous to feel all the passions which actuate a
multitude, yet not so numerous as to be incapable of pursuing the
objects of its passions, by means which reason prescribes; it is
against the enterprising ambition of this department that the
people ought to indulge all their jealousy and exhaust all their
precautions. The legislative department derives a superiority in
our governments from other circumstances. Its constitutional
powers being at once more extensive, and less susceptible of
precise limits, it can, with the greater facility, mask, under
complicated and indirect measures, the encroachments which it
makes on the co-ordinate departments. It is not unfrequently a
question of real nicety in legislative bodies, whether the
operation of a particular measure will, or will not, extend
beyond the legislative sphere. On the other side, the executive
power being restrained within a narrower compass, and being more
simple in its nature, and the judiciary being described by
landmarks still less uncertain, projects of usurpation by either
of these departments would immediately betray and defeat
themselves. Nor is this all: as the legislative department alone
has access to the pockets of the people, and has in some
constitutions full discretion, and in all a prevailing influence,
over the pecuniary rewards of those who fill the other
departments, a dependence is thus created in the latter, which
gives still greater facility to encroachments of the former. I
have appealed to our own experience for the truth of what I
advance on this subject. Were it necessary to verify this
experience by particular proofs, they might be multiplied
without end. I might find a witness in every citizen who has
shared in, or been attentive to, the course of public
administrations. I might collect vouchers in abundance from the
records and archives of every State in the Union. But as a more
concise, and at the same time equally satisfactory, evidence, I
will refer to the example of two States, attested by two
unexceptionable authorities. The first example is that of
Virginia, a State which, as we have seen, has expressly declared
in its constitution, that the three great departments ought not
to be intermixed. The authority in support of it is Mr.
Jefferson, who, besides his other advantages for remarking the
operation of the government, was himself the chief magistrate of
it. In order to convey fully the ideas with which his experience
had impressed him on this subject, it will be necessary to quote
a passage of some length from his very interesting ``Notes on the
State of Virginia,'' p. 195. ``All the powers of government,
legislative, executive, and judiciary, result to the legislative
body. The concentrating these in the same hands, is precisely the
definition of despotic government. It will be no alleviation,
that these powers will be exercised by a plurality of hands, and
not by a single one. One hundred and seventy-three despots would
surely be as oppressive as one. Let those who doubt it, turn
their eyes on the republic of Venice. As little will it avail us,
that they are chosen by ourselves. An ELECTIVE DESPOTISM was not
the government we fought for; but one which should not only be
founded on free principles, but in which the powers of government
should be so divided and balanced among several bodies of
magistracy, as that no one could transcend their legal limits,
without being effectually checked and restrained by the others.
For this reason, that convention which passed the ordinance of
government, laid its foundation on this basis, that the
legislative, executive, and judiciary departments should be
separate and distinct, so that no person should exercise the
powers of more than one of them at the same time. BUT NO BARRIER
executive members were left dependent on the legislative for
their subsistence in office, and some of them for their
continuance in it. If, therefore, the legislature assumes
executive and judiciary powers, no opposition is likely to be
made; nor, if made, can be effectual; because in that case they
may put their proceedings into the form of acts of Assembly,
which will render them obligatory on the other branches. They
have accordingly, IN MANY instances, DECIDED RIGHTS which should
HABITUAL AND FAMILIAR. ''The other State which I shall take for
an example is Pennsylvania; and the other authority, the Council
of Censors, which assembled in the years 1783 and 1784. A part of
the duty of this body, as marked out by the constitution, was
``to inquire whether the constitution had been preserved
inviolate in every part; and whether the legislative and
executive branches of government had performed their duty as
guardians of the people, or assumed to themselves, or exercised,
other or greater powers than they are entitled to by the
constitution. '' In the execution of this trust, the council were
necessarily led to a comparison of both the legislative and
executive proceedings, with the constitutional powers of these
departments; and from the facts enumerated, and to the truth of
most of which both sides in the council subscribed, it appears
that the constitution had been flagrantly violated by the
legislature in a variety of important instances. A great number
of laws had been passed, violating, without any apparent
necessity, the rule requiring that all bills of a public nature
shall be previously printed for the consideration of the people;
although this is one of the precautions chiefly relied on by the
constitution against improper acts of legislature. The
constitutional trial by jury had been violated, and powers
assumed which had not been delegated by the constitution.
Executive powers had been usurped. The salaries of the judges,
which the constitution expressly requires to be fixed, had been
occasionally varied; and cases belonging to the judiciary
department frequently drawn within legislative cognizance and
determination. Those who wish to see the several particulars
falling under each of these heads, may consult the journals of
the council, which are in print. Some of them, it will be found,
may be imputable to peculiar circumstances connected with the
war; but the greater part of them may be considered as the
spontaneous shoots of an ill-constituted government. It appears,
also, that the executive department had not been innocent of
frequent breaches of the constitution. There are three
observations, however, which ought to be made on this head:
FIRST, a great proportion of the instances were either
immediately produced by the necessities of the war, or
recommended by Congress or the commander-in-chief; SECONDLY, in
most of the other instances, they conformed either to the
declared or the known sentiments of the legislative department;
THIRDLY, the executive department of Pennsylvania is
distinguished from that of the other States by the number of
members composing it. In this respect, it has as much affinity
to a legislative assembly as to an executive council. And being
at once exempt from the restraint of an individual responsibility
for the acts of the body, and deriving confidence from mutual
example and joint influence, unauthorized measures would, of
course, be more freely hazarded, than where the executive
department is administered by a single hand, or by a few hands.
The conclusion which I am warranted in drawing from these
observations is, that a mere demarcation on parchment of the
constitutional limits of the several departments, is not a
sufficient guard against those encroachments which lead to a
tyrannical concentration of all the powers of government in the
same hands. PUBLIUS.


Method of Guarding Against the Encroachments of Any One
Department of Government by Appealing to the People Through a
From the New York Packet. Tuesday, February 5, 1788.


To the People of the State of New York:
THE author of the ``Notes on the State of Virginia,'' quoted in
the last paper, has subjoined to that valuable work the draught
of a constitution, which had been prepared in order to be laid
before a convention, expected to be called in 1783, by the
legislature, for the establishment of a constitution for that
commonwealth. The plan, like every thing from the same pen, marks
a turn of thinking, original, comprehensive, and accurate; and is
the more worthy of attention as it equally displays a fervent
attachment to republican government and an enlightened view of
the dangerous propensities against which it ought to be guarded.
One of the precautions which he proposes, and on which he appears
ultimately to rely as a palladium to the weaker departments of
power against the invasions of the stronger, is perhaps
altogether his own, and as it immediately relates to the subject
of our present inquiry, ought not to be overlooked. His
proposition is, ``that whenever any two of the three branches of
government shall concur in opinion, each by the voices of two
thirds of their whole number, that a convention is necessary for
altering the constitution, or CORRECTING BREACHES OF IT, a
convention shall be called for the purpose. ''As the people are
the only legitimate fountain of power, and it is from them that
the constitutional charter, under which the several branches of
government hold their power, is derived, it seems strictly
consonant to the republican theory, to recur to the same original
authority, not only whenever it may be necessary to enlarge,
diminish, or new-model the powers of the government, but also
whenever any one of the departments may commit encroachments on
the chartered authorities of the others. The several departments
being perfectly co-ordinate by the terms of their common
commission, none of them, it is evident, can pretend to an
exclusive or superior right of settling the boundaries between
their respective powers; and how are the encroachments of the
stronger to be prevented, or the wrongs of the weaker to be
redressed, without an appeal to the people themselves, who, as
the grantors of the commissions, can alone declare its true
meaning, and enforce its observance? There is certainly great
force in this reasoning, and it must be allowed to prove that a
constitutional road to the decision of the people ought to be
marked out and kept open, for certain great and extraordinary
occasions. But there appear to be insuperable objections against
the proposed recurrence to the people, as a provision in all
cases for keeping the several departments of power within their
constitutional limits. In the first place, the provision does not
reach the case of a combination of two of the departments against
the third. If the legislative authority, which possesses so many
means of operating on the motives of the other departments,
should be able to gain to its interest either of the others, or
even one third of its members, the remaining department could
derive no advantage from its remedial provision. I do not dwell,
however, on this objection, because it may be thought to be
rather against the modification of the principle, than against
the principle itself. In the next place, it may be considered as
an objection inherent in the principle, that as every appeal to
the people would carry an implication of some defect in the
government, frequent appeals would, in a great measure, deprive
the government of that veneration which time bestows on every
thing, and without which perhaps the wisest and freest
governments would not possess the requisite stability. If it be
true that all governments rest on opinion, it is no less true
that the strength of opinion in each individual, and its
practical influence on his conduct, depend much on the number
which he supposes to have entertained the same opinion. The
reason of man, like man himself, is timid and cautious when left
alone, and acquires firmness and confidence in proportion to the
number with which it is associated. When the examples which
fortify opinion are ANCIENT as well as NUMEROUS, they are known
to have a double effect. In a nation of philosophers, this
consideration ought to be disregarded. A reverence for the laws
would be sufficiently inculcated by the voice of an enlightened
reason. But a nation of philosophers is as little to be expected
as the philosophical race of kings wished for by Plato. And in
every other nation, the most rational government will not find it
a superfluous advantage to have the prejudices of the community
on its side. The danger of disturbing the public tranquillity by
interesting too strongly the public passions, is a still more
serious objection against a frequent reference of constitutional
questions to the decision of the whole society. Notwithstanding
the success which has attended the revisions of our established
forms of government, and which does so much honor to the virtue
and intelligence of the people of America, it must be confessed
that the experiments are of too ticklish a nature to be
unnecessarily multiplied. We are to recollect that all the
existing constitutions were formed in the midst of a danger which
repressed the passions most unfriendly to order and concord; of
an enthusiastic confidence of the people in their patriotic
leaders, which stifled the ordinary diversity of opinions on
great national questions; of a universal ardor for new and
opposite forms, produced by a universal resentment and
indignation against the ancient government; and whilst no spirit
of party connected with the changes to be made, or the abuses to
be reformed, could mingle its leaven in the operation. The future
situations in which we must expect to be usually placed, do not
present any equivalent security against the danger which is
apprehended. But the greatest objection of all is, that the
decisions which would probably result from such appeals would not
answer the purpose of maintaining the constitutional equilibrium
of the government. We have seen that the tendency of republican
governments is to an aggrandizement of the legislative at the
expense of the other departments. The appeals to the people,
therefore, would usually be made by the executive and judiciary
departments. But whether made by one side or the other, would
each side enjoy equal advantages on the trial? Let us view their
different situations. The members of the executive and judiciary
departments are few in number, and can be personally known to a
small part only of the people. The latter, by the mode of their
appointment, as well as by the nature and permanency of it, are
too far removed from the people to share much in their
prepossessions. The former are generally the objects of jealousy,
and their administration is always liable to be discolored and
rendered unpopular. The members of the legislative department, on
the other hand, are numberous. They are distributed and dwell
among the people at large. Their connections of blood, of
friendship, and of acquaintance embrace a great proportion of the
most influential part of the society. The nature of their public
trust implies a personal influence among the people, and that
they are more immediately the confidential guardians of the
rights and liberties of the people. With these advantages, it can
hardly be supposed that the adverse party would have an equal
chance for a favorable issue. But the legislative party would not
only be able to plead their cause most successfully with the
people. They would probably be constituted themselves the judges.
The same influence which had gained them an election into the
legislature, would gain them a seat in the convention. If this
should not be the case with all, it would probably be the case
with many, and pretty certainly with those leading characters, on
whom every thing depends in such bodies. The convention, in
short, would be composed chiefly of men who had been, who
actually were, or who expected to be, members of the department
whose conduct was arraigned. They would consequently be parties
to the very question to be decided by them. It might, however,
sometimes happen, that appeals would be made under circumstances
less adverse to the executive and judiciary departments. The
usurpations of the legislature might be so flagrant and so
sudden, as to admit of no specious coloring. A strong party
among themselves might take side with the other branches. The
executive power might be in the hands of a peculiar favorite of
the people. In such a posture of things, the public decision
might be less swayed by prepossessions in favor of the
legislative party. But still it could never be expected to turn
on the true merits of the question. It would inevitably be
connected with the spirit of pre-existing parties, or of parties
springing out of the question itself. It would be connected with
persons of distinguished character and extensive influence in the
community. It would be pronounced by the very men who had been
agents in, or opponents of, the measures to which the decision
would relate. The PASSIONS, therefore, not the REASON, of the
public would sit in judgment. But it is the reason, alone, of the
public, that ought to control and regulate the government. The
passions ought to be controlled and regulated by the government.
We found in the last paper, that mere declarations in the written
constitution are not sufficient to restrain the several
departments within their legal rights. It appears in this, that
occasional appeals to the people would be neither a proper nor an
effectual provision for that purpose. How far the provisions of a
different nature contained in the plan above quoted might be
adequate, I do not examine. Some of them are unquestionably
founded on sound political principles, and all of them are framed
with singular ingenuity and precision. PUBLIUS.


Periodical Appeals to the People Considered
From the New York Packet. Tuesday, February 5, 1788.


To the People of the State of New York:
IT MAY be contended, perhaps, that instead of OCCASIONAL appeals
to the people, which are liable to the objections urged against
them, PERIODICAL appeals are the proper and adequate means of
will be attended to, that in the examination of these expedients,
I confine myself to their aptitude for ENFORCING the
Constitution, by keeping the several departments of power within
their due bounds, without particularly considering them as
provisions for ALTERING the Constitution itself. In the first
view, appeals to the people at fixed periods appear to be nearly
as ineligible as appeals on particular occasions as they emerge.
If the periods be separated by short intervals, the measures to
be reviewed and rectified will have been of recent date, and will
be connected with all the circumstances which tend to vitiate and
pervert the result of occasional revisions. If the periods be
distant from each other, the same remark will be applicable to
all recent measures; and in proportion as the remoteness of the
others may favor a dispassionate review of them, this advantage
is inseparable from inconveniences which seem to counterbalance
it. In the first place, a distant prospect of public censure
would be a very feeble restraint on power from those excesses to
which it might be urged by the force of present motives. Is it to
be imagined that a legislative assembly, consisting of a hundred
or two hundred members, eagerly bent on some favorite object, and
breaking through the restraints of the Constitution in pursuit of
it, would be arrested in their career, by considerations drawn
from a censorial revision of their conduct at the future distance
of ten, fifteen, or twenty years? In the next place, the abuses
would often have completed their mischievous effects before the
remedial provision would be applied. And in the last place, where
this might not be the case, they would be of long standing, would
have taken deep root, and would not easily be extirpated. The
scheme of revising the constitution, in order to correct recent
breaches of it, as well as for other purposes, has been actually
tried in one of the States. One of the objects of the Council of
Censors which met in Pennsylvania in 1783 and 1784, was, as we
have seen, to inquire, ``whether the constitution had been
violated, and whether the legislative and executive departments
had encroached upon each other. '' This important and novel
experiment in politics merits, in several points of view, very
particular attention. In some of them it may, perhaps, as a
single experiment, made under circumstances somewhat peculiar, be
thought to be not absolutely conclusive. But as applied to the
case under consideration, it involves some facts, which I venture
to remark, as a complete and satisfactory illustration of the
reasoning which I have employed. First. It appears, from the
names of the gentlemen who composed the council, that some, at
least, of its most active members had also been active and
leading characters in the parties which pre-existed in the State.
Secondly. It appears that the same active and leading members of
the council had been active and influential members of the
legislative and executive branches, within the period to be
reviewed; and even patrons or opponents of the very measures to
be thus brought to the test of the constitution. Two of the
members had been vice-presidents of the State, and several other
members of the executive council, within the seven preceding
years. One of them had been speaker, and a number of others
distinguished members, of the legislative assembly within the
same period. Thirdly. Every page of their proceedings witnesses
the effect of all these circumstances on the temper of their
deliberations. Throughout the continuance of the council, it was
split into two fixed and violent parties. The fact is
acknowledged and lamented by themselves. Had this not been the
case, the face of their proceedings exhibits a proof equally
satisfactory. In all questions, however unimportant in
themselves, or unconnected with each other, the same names stand
invariably contrasted on the opposite columns. Every unbiased
observer may infer, without danger of mistake, and at the same
time without meaning to reflect on either party, or any
individuals of either party, that, unfortunately, PASSION, not
REASON, must have presided over their decisions. When men
exercise their reason coolly and freely on a variety of distinct
questions, they inevitably fall into different opinions on some
of them. When they are governed by a common passion, their
opinions, if they are so to be called, will be the same.
Fourthly. It is at least problematical, whether the decisions of
this body do not, in several instances, misconstrue the limits
prescribed for the legislative and executive departments, instead
of reducing and limiting them within their constitutional places.
Fifthly. I have never understood that the decisions of the
council on constitutional questions, whether rightly or
erroneously formed, have had any effect in varying the practice
founded on legislative constructions. It even appears, if I
mistake not, that in one instance the contemporary legislature
denied the constructions of the council, and actually prevailed
in the contest. This censorial body, therefore, proves at the
same time, by its researches, the existence of the disease, and
by its example, the inefficacy of the remedy. This conclusion
cannot be invalidated by alleging that the State in which the
experiment was made was at that crisis, and had been for a long
time before, violently heated and distracted by the rage of
party. Is it to be presumed, that at any future septennial epoch
the same State will be free from parties? Is it to be presumed
that any other State, at the same or any other given period, will
be exempt from them? Such an event ought to be neither presumed
nor desired; because an extinction of parties necessarily implies
either a universal alarm for the public safety, or an absolute
extinction of liberty. Were the precaution taken of excluding
from the assemblies elected by the people, to revise the
preceding administration of the government, all persons who
should have been concerned with the government within the given
period, the difficulties would not be obviated. The important
task would probably devolve on men, who, with inferior
capacities, would in other respects be little better qualified.
Although they might not have been personally concerned in the
administration, and therefore not immediately agents in the
measures to be examined, they would probably have been involved
in the parties connected with these measures, and have been
elected under their auspices. PUBLIUS.


The Structure of the Government Must Furnish the Proper Checks
and Balances Between the Different Departments
From the New York Packet. Friday, February 8, 1788.


To the People of the State of New York:
TO WHAT expedient, then, shall we finally resort, for maintaining
in practice the necessary partition of power among the several
departments, as laid down in the Constitution? The only answer
that can be given is, that as all these exterior provisions are
found to be inadequate, the defect must be supplied, by so
contriving the interior structure of the government as that its
several constituent parts may, by their mutual relations, be the
means of keeping each other in their proper places. Without
presuming to undertake a full development of this important idea,
I will hazard a few general observations, which may perhaps place
it in a clearer light, and enable us to form a more correct
judgment of the principles and structure of the government
planned by the convention. In order to lay a due foundation for
that separate and distinct exercise of the different powers of
government, which to a certain extent is admitted on all hands to
be essential to the preservation of liberty, it is evident that
each department should have a will of its own; and consequently
should be so constituted that the members of each should have as
little agency as possible in the appointment of the members of
the others. Were this principle rigorously adhered to, it would
require that all the appointments for the supreme executive,
legislative, and judiciary magistracies should be drawn from the
same fountain of authority, the people, through channels having
no communication whatever with one another. Perhaps such a plan
of constructing the several departments would be less difficult
in practice than it may in contemplation appear. Some
difficulties, however, and some additional expense would attend
the execution of it. Some deviations, therefore, from the
principle must be admitted. In the constitution of the judiciary
department in particular, it might be inexpedient to insist
rigorously on the principle: first, because peculiar
qualifications being essential in the members, the primary
consideration ought to be to select that mode of choice which
best secures these qualifications; secondly, because the
permanent tenure by which the appointments are held in that
department, must soon destroy all sense of dependence on the
authority conferring them. It is equally evident, that the
members of each department should be as little dependent as
possible on those of the others, for the emoluments annexed to
their offices. Were the executive magistrate, or the judges, not
independent of the legislature in this particular, their
independence in every other would be merely nominal. But the
great security against a gradual concentration of the several
powers in the same department, consists in giving to those who
administer each department the necessary constitutional means and
personal motives to resist encroachments of the others. The
provision for defense must in this, as in all other cases, be
made commensurate to the danger of attack. Ambition must be made
to counteract ambition. The interest of the man must be
connected with the constitutional rights of the place. It may be
a reflection on human nature, that such devices should be
necessary to control the abuses of government. But what is
government itself, but the greatest of all reflections on human
nature? If men were angels, no government would be necessary. If
angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a
government which is to be administered by men over men, the great
difficulty lies in this: you must first enable the government to
control the governed; and in the next place oblige it to control
itself. A dependence on the people is, no doubt, the primary
control on the government; but experience has taught mankind the
necessity of auxiliary precautions. This policy of supplying, by
opposite and rival interests, the defect of better motives, might
be traced through the whole system of human affairs, private as
well as public. We see it particularly displayed in all the
subordinate distributions of power, where the constant aim is to
divide and arrange the several offices in such a manner as that
each may be a check on the other that the private interest of
every individual may be a sentinel over the public rights. These
inventions of prudence cannot be less requisite in the
distribution of the supreme powers of the State. But it is not
possible to give to each department an equal power of
self-defense. In republican government, the legislative
authority necessarily predominates. The remedy for this
inconveniency is to divide the legislature into different
branches; and to render them, by different modes of election and
different principles of action, as little connected with each
other as the nature of their common functions and their common
dependence on the society will admit. It may even be necessary
to guard against dangerous encroachments by still further
precautions. As the weight of the legislative authority requires
that it should be thus divided, the weakness of the executive may
require, on the other hand, that it should be fortified. An
absolute negative on the legislature appears, at first view, to
be the natural defense with which the executive magistrate should
be armed. But perhaps it would be neither altogether safe nor
alone sufficient. On ordinary occasions it might not be exerted
with the requisite firmness, and on extraordinary occasions it
might be perfidiously abused. May not this defect of an absolute
negative be supplied by some qualified connection between this
weaker department and the weaker branch of the stronger
department, by which the latter may be led to support the
constitutional rights of the former, without being too much
detached from the rights of its own department? If the principles
on which these observations are founded be just, as I persuade
myself they are, and they be applied as a criterion to the
several State constitutions, and to the federal Constitution it
will be found that if the latter does not perfectly correspond
with them, the former are infinitely less able to bear such a
test. There are, moreover, two considerations particularly
applicable to the federal system of America, which place that
system in a very interesting point of view. First. In a single
republic, all the power surrendered by the people is submitted to
the administration of a single government; and the usurpations
are guarded against by a division of the government into distinct
and separate departments. In the compound republic of America,
the power surrendered by the people is first divided between two
distinct governments, and then the portion allotted to each
subdivided among distinct and separate departments. Hence a
double security arises to the rights of the people. The different
governments will control each other, at the same time that each
will be controlled by itself. Second. It is of great importance
in a republic not only to guard the society against the
oppression of its rulers, but to guard one part of the society
against the injustice of the other part. Different interests
necessarily exist in different classes of citizens. If a
majority be united by a common interest, the rights of the
minority will be insecure. There are but two methods of
providing against this evil: the one by creating a will in the
community independent of the majority that is, of the society
itself; the other, by comprehending in the society so many
separate descriptions of citizens as will render an unjust
combination of a majority of the whole very improbable, if not
impracticable. The first method prevails in all governments
possessing an hereditary or self-appointed authority. This, at
best, is but a precarious security; because a power independent
of the society may as well espouse the unjust views of the major,
as the rightful interests of the minor party, and may possibly be
turned against both parties. The second method will be
exemplified in the federal republic of the United States. Whilst
all authority in it will be derived from and dependent on the
society, the society itself will be broken into so many parts,
interests, and classes of citizens, that the rights of
individuals, or of the minority, will be in little danger from
interested combinations of the majority. In a free government
the security for civil rights must be the same as that for
religious rights. It consists in the one case in the
multiplicity of interests, and in the other in the multiplicity
of sects. The degree of security in both cases will depend on
the number of interests and sects; and this may be presumed to
depend on the extent of country and number of people comprehended
under the same government. This view of the subject must
particularly recommend a proper federal system to all the sincere
and considerate friends of republican government, since it shows
that in exact proportion as the territory of the Union may be
formed into more circumscribed Confederacies, or States
oppressive combinations of a majority will be facilitated: the
best security, under the republican forms, for the rights of
every class of citizens, will be diminished: and consequently the
stability and independence of some member of the government, the
only other security, must be proportionately increased. Justice
is the end of government. It is the end of civil society. It
ever has been and ever will be pursued until it be obtained, or
until liberty be lost in the pursuit. In a society under the
forms of which the stronger faction can readily unite and oppress
the weaker, anarchy may as truly be said to reign as in a state
of nature, where the weaker individual is not secured against the
violence of the stronger; and as, in the latter state, even the
stronger individuals are prompted, by the uncertainty of their
condition, to submit to a government which may protect the weak
as well as themselves; so, in the former state, will the more
powerful factions or parties be gradually induced, by a like
motive, to wish for a government which will protect all parties,
the weaker as well as the more powerful. It can be little
doubted that if the State of Rhode Island was separated from the
Confederacy and left to itself, the insecurity of rights under
the popular form of government within such narrow limits would be
displayed by such reiterated oppressions of factious majorities
that some power altogether independent of the people would soon
be called for by the voice of the very factions whose misrule had
proved the necessity of it. In the extended republic of the
United States, and among the great variety of interests, parties,
and sects which it embraces, a coalition of a majority of the
whole society could seldom take place on any other principles
than those of justice and the general good; whilst there being
thus less danger to a minor from the will of a major party, there
must be less pretext, also, to provide for the security of the
former, by introducing into the government a will not dependent
on the latter, or, in other words, a will independent of the
society itself. It is no less certain than it is important,
notwithstanding the contrary opinions which have been
entertained, that the larger the society, provided it lie within
a practical sphere, the more duly capable it will be of
self-government. And happily for the REPUBLICAN CAUSE, the
practicable sphere may be carried to a very great extent, by a
judicious modification and mixture of the FEDERAL PRINCIPLE.


The House of Representatives
From the New York Packet. Friday, February 8, 1788.


To the People of the State of New York:
FROM the more general inquiries pursued in the four last papers,
I pass on to a more particular examination of the several parts
of the government. I shall begin with the House of
Representatives. The first view to be taken of this part of the
government relates to the qualifications of the electors and the
elected. Those of the former are to be the same with those of the
electors of the most numerous branch of the State legislatures.
The definition of the right of suffrage is very justly regarded
as a fundamental article of republican government. It was
incumbent on the convention, therefore, to define and establish
this right in the Constitution. To have left it open for the
occasional regulation of the Congress, would have been improper
for the reason just mentioned. To have submitted it to the
legislative discretion of the States, would have been improper
for the same reason; and for the additional reason that it would
have rendered too dependent on the State governments that branch
of the federal government which ought to be dependent on the
people alone. To have reduced the different qualifications in the
different States to one uniform rule, would probably have been as
dissatisfactory to some of the States as it would have been
difficult to the convention. The provision made by the convention
appears, therefore, to be the best that lay within their option.
It must be satisfactory to every State, because it is conformable
to the standard already established, or which may be established,
by the State itself. It will be safe to the United States,
because, being fixed by the State constitutions, it is not
alterable by the State governments, and it cannot be feared that
the people of the States will alter this part of their
constitutions in such a manner as to abridge the rights secured
to them by the federal Constitution. The qualifications of the
elected, being less carefully and properly defined by the State
constitutions, and being at the same time more susceptible of
uniformity, have been very properly considered and regulated by
the convention. A representative of the United States must be of
the age of twenty-five years; must have been seven years a
citizen of the United States; must, at the time of his election,
be an inhabitant of the State he is to represent; and, during the
time of his service, must be in no office under the United
States. Under these reasonable limitations, the door of this part
of the federal government is open to merit of every description,
whether native or adoptive, whether young or old, and without
regard to poverty or wealth, or to any particular profession of
religious faith. The term for which the representatives are to be
elected falls under a second view which may be taken of this
branch. In order to decide on the propriety of this article, two
questions must be considered: first, whether biennial elections
will, in this case, be safe; secondly, whether they be necessary
or useful. First. As it is essential to liberty that the
government in general should have a common interest with the
people, so it is particularly essential that the branch of it
under consideration should have an immediate dependence on, and
an intimate sympathy with, the people. Frequent elections are
unquestionably the only policy by which this dependence and
sympathy can be effectually secured. But what particular degree
of frequency may be absolutely necessary for the purpose, does
not appear to be susceptible of any precise calculation, and must
depend on a variety of circumstances with which it may be
connected. Let us consult experience, the guide that ought always
to be followed whenever it can be found. The scheme of
representation, as a substitute for a meeting of the citizens in
person, being at most but very imperfectly known to ancient
polity, it is in more modern times only that we are to expect
instructive examples. And even here, in order to avoid a research
too vague and diffusive, it will be proper to confine ourselves
to the few examples which are best known, and which bear the
greatest analogy to our particular case. The first to which this
character ought to be applied, is the House of Commons in Great
Britain. The history of this branch of the English Constitution,
anterior to the date of Magna Charta, is too obscure to yield
instruction. The very existence of it has been made a question
among political antiquaries. The earliest records of subsequent
date prove that parliaments were to SIT only every year; not that
they were to be ELECTED every year. And even these annual
sessions were left so much at the discretion of the monarch,
that, under various pretexts, very long and dangerous
intermissions were often contrived by royal ambition. To remedy
this grievance, it was provided by a statute in the reign of
Charles II. , that the intermissions should not be protracted
beyond a period of three years. On the accession of William III.,
when a revolution took place in the government, the subject was
still more seriously resumed, and it was declared to be among the
fundamental rights of the people that parliaments ought to be
held FREQUENTLY. By another statute, which passed a few years
later in the same reign, the term ``frequently,'' which had
alluded to the triennial period settled in the time of Charles
II., is reduced to a precise meaning, it being expressly enacted
that a new parliament shall be called within three years after
the termination of the former. The last change, from three to
seven years, is well known to have been introduced pretty early
in the present century, under on alarm for the Hanoverian
succession. From these facts it appears that the greatest
frequency of elections which has been deemed necessary in that
kingdom, for binding the representatives to their constituents,
does not exceed a triennial return of them. And if we may argue
from the degree of liberty retained even under septennial
elections, and all the other vicious ingredients in the
parliamentary constitution, we cannot doubt that a reduction of
the period from seven to three years, with the other necessary
reforms, would so far extend the influence of the people over
their representatives as to satisfy us that biennial elections,
under the federal system, cannot possibly be dangerous to the
requisite dependence of the House of Representatives on their
constituents. Elections in Ireland, till of late, were regulated
entirely by the discretion of the crown, and were seldom
repeated, except on the accession of a new prince, or some other
contingent event. The parliament which commenced with George II.
was continued throughout his whole reign, a period of about
thirty-five years. The only dependence of the representatives on
the people consisted in the right of the latter to supply
occasional vacancies by the election of new members, and in the
chance of some event which might produce a general new election.
The ability also of the Irish parliament to maintain the rights
of their constituents, so far as the disposition might exist, was
extremely shackled by the control of the crown over the subjects
of their deliberation. Of late these shackles, if I mistake not,
have been broken; and octennial parliaments have besides been
established. What effect may be produced by this partial reform,
must be left to further experience. The example of Ireland, from
this view of it, can throw but little light on the subject. As
far as we can draw any conclusion from it, it must be that if the
people of that country have been able under all these
disadvantages to retain any liberty whatever, the advantage of
biennial elections would secure to them every degree of liberty,
which might depend on a due connection between their
representatives and themselves. Let us bring our inquiries nearer
home. The example of these States, when British colonies, claims
particular attention, at the same time that it is so well known
as to require little to be said on it. The principle of
representation, in one branch of the legislature at least, was
established in all of them. But the periods of election were
different. They varied from one to seven years. Have we any
reason to infer, from the spirit and conduct of the
representatives of the people, prior to the Revolution, that
biennial elections would have been dangerous to the public
liberties? The spirit which everywhere displayed itself at the
commencement of the struggle, and which vanquished the obstacles
to independence, is the best of proofs that a sufficient portion
of liberty had been everywhere enjoyed to inspire both a sense of
its worth and a zeal for its proper enlargement This remark holds
good, as well with regard to the then colonies whose elections
were least frequent, as to those whose elections were most
frequent Virginia was the colony which stood first in resisting
the parliamentary usurpations of Great Britain; it was the first
also in espousing, by public act, the resolution of independence.
In Virginia, nevertheless, if I have not been misinformed,
elections under the former government were septennial. This
particular example is brought into view, not as a proof of any
peculiar merit, for the priority in those instances was probably
accidental; and still less of any advantage in SEPTENNIAL
elections, for when compared with a greater frequency they are
inadmissible; but merely as a proof, and I conceive it to be a
very substantial proof, that the liberties of the people can be
in no danger from BIENNIAL elections. The conclusion resulting
from these examples will be not a little strengthened by
recollecting three circumstances. The first is, that the federal
legislature will possess a part only of that supreme legislative
authority which is vested completely in the British Parliament;
and which, with a few exceptions, was exercised by the colonial
assemblies and the Irish legislature. It is a received and
well-founded maxim, that where no other circumstances affect the
case, the greater the power is, the shorter ought to be its
duration; and, conversely, the smaller the power, the more safely
may its duration be protracted. In the second place, it has, on
another occasion, been shown that the federal legislature will
not only be restrained by its dependence on its people, as other
legislative bodies are, but that it will be, moreover, watched
and controlled by the several collateral legislatures, which
other legislative bodies are not. And in the third place, no
comparison can be made between the means that will be possessed
by the more permanent branches of the federal government for
seducing, if they should be disposed to seduce, the House of
Representatives from their duty to the people, and the means of
influence over the popular branch possessed by the other branches
of the government above cited. With less power, therefore, to
abuse, the federal representatives can be less tempted on one
side, and will be doubly watched on the other. PUBLIUS.


The Same Subject Continued (The House of Representatives)
From the New York Packet. Tuesday, February 12, 1788.


To the People of the State of New York:
I SHALL here, perhaps, be reminded of a current observation,
``that where annual elections end, tyranny begins. '' If it be
true, as has often been remarked, that sayings which become
proverbial are generally founded in reason, it is not less true,
that when once established, they are often applied to cases to
which the reason of them does not extend. I need not look for a
proof beyond the case before us. What is the reason on which this
proverbial observation is founded? No man will subject himself to
the ridicule of pretending that any natural connection subsists
between the sun or the seasons, and the period within which human
virtue can bear the temptations of power. Happily for mankind,
liberty is not, in this respect, confined to any single point of
time; but lies within extremes, which afford sufficient latitude
for all the variations which may be required by the various
situations and circumstances of civil society. The election of
magistrates might be, if it were found expedient, as in some
instances it actually has been, daily, weekly, or monthly, as
well as annual; and if circumstances may require a deviation from
the rule on one side, why not also on the other side? Turning our
attention to the periods established among ourselves, for the
election of the most numerous branches of the State legislatures,
we find them by no means coinciding any more in this instance,
than in the elections of other civil magistrates. In Connecticut
and Rhode Island, the periods are half-yearly. In the other
States, South Carolina excepted, they are annual. In South
Carolina they are biennial as is proposed in the federal
government. Here is a difference, as four to one, between the
longest and shortest periods; and yet it would be not easy to
show, that Connecticut or Rhode Island is better governed, or
enjoys a greater share of rational liberty, than South Carolina;
or that either the one or the other of these States is
distinguished in these respects, and by these causes, from the
States whose elections are different from both. In searching for
the grounds of this doctrine, I can discover but one, and that is
wholly inapplicable to our case. The important distinction so
well understood in America, between a Constitution established by
the people and unalterable by the government, and a law
established by the government and alterable by the government,
seems to have been little understood and less observed in any
other country. Wherever the supreme power of legislation has
resided, has been supposed to reside also a full power to change
the form of the government. Even in Great Britain, where the
principles of political and civil liberty have been most
discussed, and where we hear most of the rights of the
Constitution, it is maintained that the authority of the
Parliament is transcendent and uncontrollable, as well with
regard to the Constitution, as the ordinary objects of
legislative provision. They have accordingly, in several
instances, actually changed, by legislative acts, some of the
most fundamental articles of the government. They have in
particular, on several occasions, changed the period of election;
and, on the last occasion, not only introduced septennial in
place of triennial elections, but by the same act, continued
themselves in place four years beyond the term for which they
were elected by the people. An attention to these dangerous
practices has produced a very natural alarm in the votaries of
free government, of which frequency of elections is the
corner-stone; and has led them to seek for some security to
liberty, against the danger to which it is exposed. Where no
Constitution, paramount to the government, either existed or
could be obtained, no constitutional security, similar to that
established in the United States, was to be attempted. Some
other security, therefore, was to be sought for; and what better
security would the case admit, than that of selecting and
appealing to some simple and familiar portion of time, as a
standard for measuring the danger of innovations, for fixing the
national sentiment, and for uniting the patriotic exertions? The
most simple and familiar portion of time, applicable to the
subject was that of a year; and hence the doctrine has been
inculcated by a laudable zeal, to erect some barrier against the
gradual innovations of an unlimited government, that the advance
towards tyranny was to be calculated by the distance of departure
from the fixed point of annual elections. But what necessity can
there be of applying this expedient to a government limited, as
the federal government will be, by the authority of a paramount
Constitution? Or who will pretend that the liberties of the
people of America will not be more secure under biennial
elections, unalterably fixed by such a Constitution, than those
of any other nation would be, where elections were annual, or
even more frequent, but subject to alterations by the ordinary
power of the government? The second question stated is, whether
biennial elections be necessary or useful. The propriety of
answering this question in the affirmative will appear from
several very obvious considerations.
No man can be a
competent legislator who does not add to an upright intention and
a sound judgment a certain degree of knowledge of the subjects on
which he is to legislate. A part of this knowledge may be
acquired by means of information which lie within the compass of
men in private as well as public stations. Another part can only
be attained, or at least thoroughly attained, by actual
experience in the station which requires the use of it. The
period of service, ought, therefore, in all such cases, to bear
some proportion to the extent of practical knowledge requisite to
the due performance of the service. The period of legislative
service established in most of the States for the more numerous
branch is, as we have seen, one year. The question then may be
put into this simple form: does the period of two years bear no
greater proportion to the knowledge requisite for federal
legislation than one year does to the knowledge requisite for
State legislation? The very statement of the question, in this
form, suggests the answer that ought to be given to it. In a
single State, the requisite knowledge relates to the existing
laws which are uniform throughout the State, and with which all
the citizens are more or less conversant; and to the general
affairs of the State, which lie within a small compass, are not
very diversified, and occupy much of the attention and
conversation of every class of people. The great theatre of the
United States presents a very different scene. The laws are so
far from being uniform, that they vary in every State; whilst the
public affairs of the Union are spread throughout a very
extensive region, and are extremely diversified by t e local
affairs connected with them, and can with difficulty be correctly
learnt in any other place than in the central councils to which a
knowledge of them will be brought by the representatives of every
part of the empire. Yet some knowledge of the affairs, and even
of the laws, of all the States, ought to be possessed by the
members from each of the States. How can foreign trade be
properly regulated by uniform laws, without some acquaintance
with the commerce, the ports, the usages, and the regulatious of
the different States? How can the trade between the different
States be duly regulated, without some knowledge of their
relative situations in these and other respects? How can taxes
be judiciously imposed and effectually collected, if they be not
accommodated to the different laws and local circumstances
relating to these objects in the different States? How can
uniform regulations for the militia be duly provided, without a
similar knowledge of many internal circumstances by which the
States are distinguished from each other? These are the
principal objects of federal legislation, and suggest most
forcibly the extensive information which the representatives
ought to acquire. The other interior objects will require a
proportional degree of information with regard to them. It is
true that all these difficulties will, by degrees, be very much
diminished. The most laborious task will be the proper
inauguration of the government and the primeval formation of a
federal code. Improvements on the first draughts will every year
become both easier and fewer. Past transactions of the
government will be a ready and accurate source of information to
new members. The affairs of the Union will become more and more
objects of curiosity and conversation among the citizens at
large. And the increased intercourse among those of different
States will contribute not a little to diffuse a mutual knowledge
of their affairs, as this again will contribute to a general
assimilation of their manners and laws. But with all these
abatements, the business of federal legislation must continue so
far to exceed, both in novelty and difficulty, the legislative
business of a single State, as to justify the longer period of
service assigned to those who are to transact it. A branch of
knowledge which belongs to the acquirements of a federal
representative, and which has not been mentioned is that of
foreign affairs. In regulating our own commerce he ought to be
not only acquainted with the treaties between the United States
and other nations, but also with the commercial policy and laws
of other nations. He ought not to be altogether ignorant of the
law of nations; for that, as far as it is a proper object of
municipal legislation, is submitted to the federal government.
And although the House of Representatives is not immediately to
participate in foreign negotiations and arrangements, yet from
the necessary connection between the several branches of public
affairs, those particular branches will frequently deserve
attention in the ordinary course of legislation, and will
sometimes demand particular legislative sanction and
co-operation. Some portion of this knowledge may, no doubt, be
acquired in a man's closet; but some of it also can only be
derived from the public sources of information; and all of it
will be acquired to best effect by a practical attention to the
subject during the period of actual service in the legislature.
There are other considerations, of less importance, perhaps, but
which are not unworthy of notice. The distance which many of the
representatives will be obliged to travel, and the arrangements
rendered necessary by that circumstance, might be much more
serious objections with fit men to this service, if limited to a
single year, than if extended to two years. No argument can be
drawn on this subject, from the case of the delegates to the
existing Congress. They are elected annually, it is true; but
their re-election is considered by the legislative assemblies
almost as a matter of course. The election of the representatives
by the people would not be governed by the same principle. A few
of the members, as happens in all such assemblies, will possess
superior talents; will, by frequent reelections, become members
of long standing; will be thoroughly masters of the public
business, and perhaps not unwilling to avail themselves of those
advantages. The greater the proportion of new members, and the
less the information of the bulk of the members the more apt will
they be to fall into the snares that may be laid for them. This
remark is no less applicable to the relation which will subsist
between the House of Representatives and the Senate. It is an
inconvenience mingled with the advantages of our frequent
elections even in single States, where they are large, and hold
but one legislative session in a year, that spurious elections
cannot be investigated and annulled in time for the decision to
have its due effect. If a return can be obtained, no matter by
what unlawful means, the irregular member, who takes his seat of
course, is sure of holding it a sufficient time to answer his
purposes. Hence, a very pernicious encouragement is given to the
use of unlawful means, for obtaining irregular returns. Were
elections for the federal legislature to be annual, this practice
might become a very serious abuse, particularly in the more
distant States. Each house is, as it necessarily must be, the
judge of the elections, qualifications, and returns of its
members; and whatever improvements may be suggested by
experience, for simplifying and accelerating the process in
disputed cases, so great a portion of a year would unavoidably
elapse, before an illegitimate member could be dispossessed of
his seat, that the prospect of such an event would be little
check to unfair and illicit means of obtaining a seat. All these
considerations taken together warrant us in affirming, that
biennial elections will be as useful to the affairs of the public
as we have seen that they will be safe to the liberty of the
people. PUBLIUS.


The Apportionment of Members Among the States

From the New York Packet. Tuesday, February 12, 1788.


To the People of the State of New York:
THE next view which I shall take of the House of Representatives
relates to the appointment of its members to the several States
which is to be determined by the same rule with that of direct
It is not contended that the number of people in each
State ought not to be the standard for regulating the proportion
of those who are to represent the people of each State. The
establishment of the same rule for the appointment of taxes, will
probably be as little contested; though the rule itself in this
case, is by no means founded on the same principle. In the former
case, the rule is understood to refer to the personal rights of
the people, with which it has a natural and universal connection.
In the latter, it has reference to the proportion of wealth, of
which it is in no case a precise measure, and in ordinary cases a
very unfit one. But notwithstanding the imperfection of the rule
as applied to the relative wealth and contributions of the
States, it is evidently the least objectionable among the
practicable rules, and had too recently obtained the general
sanction of America, not to have found a ready preference with
the convention. All this is admitted, it will perhaps be said;
but does it follow, from an admission of numbers for the measure
of representation, or of slaves combined with free citizens as a
ratio of taxation, that slaves ought to be included in the
numerical rule of representation? Slaves are considered as
property, not as persons. They ought therefore to be comprehended
in estimates of taxation which are founded on property, and to be
excluded from representation which is regulated by a census of
persons. This is the objection, as I understand it, stated in its
full force. I shall be equally candid in stating the reasoning
which may be offered on the opposite side. ``We subscribe to the
doctrine,'' might one of our Southern brethren observe, ``that
representation relates more immediately to persons, and taxation
more immediately to property, and we join in the application of
this distinction to the case of our slaves. But we must deny the
fact, that slaves are considered merely as property, and in no
respect whatever as persons. The true state of the case is, that
they partake of both these qualities: being considered by our
laws, in some respects, as persons, and in other respects as
property. In being compelled to labor, not for himself, but for
a master; in being vendible by one master to another master; and
in being subject at all times to be restrained in his liberty and
chastised in his body, by the capricious will of another, the
slave may appear to be degraded from the human rank, and classed
with those irrational animals which fall under the legal
denomination of property. In being protected, on the other hand,
in his life and in his limbs, against the violence of all
others, even the master of his labor and his liberty; and in
being punishable himself for all violence committed against
others, the slave is no less evidently regarded by the law as a
member of the society, not as a part of the irrational creation;
as a moral person, not as a mere article of property. The
federal Constitution, therefore, decides with great propriety on
the case of our slaves, when it views them in the mixed character
of persons and of property. This is in fact their true
character. It is the character bestowed on them by the laws
under which they live; and it will not be denied, that these are
the proper criterion; because it is only under the pretext that
the laws have transformed the negroes into subjects of property,
that a place is disputed them in the computation of numbers; and
it is admitted, that if the laws were to restore the rights which
have been taken away, the negroes could no longer be refused an
equal share of representation with the other inhabitants. ``This
question may be placed in another light. It is agreed on all
sides, that numbers are the best scale of wealth and taxation, as
they are the only proper scale of representation. Would the
convention have been impartial or consistent, if they had
rejected the slaves from the list of inhabitants, when the shares
of representation were to be calculated, and inserted them on the
lists when the tariff of contributions was to be adjusted? Could
it be reasonably expected, that the Southern States would concur
in a system, which considered their slaves in some degree as men,
when burdens were to be imposed, but refused to consider them in
the same light, when advantages were to be conferred? Might not
some surprise also be expressed, that those who reproach the
Southern States with the barbarous policy of considering as
property a part of their human brethren, should themselves
contend, that the government to which all the States are to be
parties, ought to consider this unfortunate race more completely
in the unnatural light of property, than the very laws of which
they complain? ``It may be replied, perhaps, that slaves are not
included in the estimate of representatives in any of the States
possessing them. They neither vote themselves nor increase the
votes of their masters. Upon what principle, then, ought they to
be taken into the federal estimate of representation? In
rejecting them altogether, the Constitution would, in this
respect, have followed the very laws which have been appealed to
as the proper guide. ``This objection is repelled by a single
observation. It is a fundamental principle of the proposed
Constitution, that as the aggregate number of representatives
allotted to the several States is to be determined by a federal
rule, founded on the aggregate number of inhabitants, so the
right of choosing this allotted number in each State is to be
exercised by such part of the inhabitants as the State itself may
designate. The qualifications on which the right of suffrage
depend are not, perhaps, the same in any two States. In some of
the States the difference is very material. In every State, a
certain proportion of inhabitants are deprived of this right by
the constitution of the State, who will be included in the census
by which the federal Constitution apportions the representatives.
In this point of view the Southern States might retort the
complaint, by insisting that the principle laid down by the
convention required that no regard should be had to the policy of
particular States towards their own inhabitants; and
consequently, that the slaves, as inhabitants, should have been
admitted into the census according to their full number, in like
manner with other inhabitants, who, by the policy of other
States, are not admitted to all the rights of citizens. A
rigorous adherence, however, to this principle, is waived by
those who would be gainers by it. All that they ask is that
equal moderation be shown on the other side. Let the case of the
slaves be considered, as it is in truth, a peculiar one. Let the
compromising expedient of the Constitution be mutually adopted,
which regards them as inhabitants, but as debased by servitude
below the equal level of free inhabitants, which regards the
SLAVE as divested of two fifths of the MAN. ``After all, may not
another ground be taken on which this article of the
Constitution will admit of a still more ready defense? We have
hitherto proceeded on the idea that representation related to
persons only, and not at all to property. But is it a just idea?
Government is instituted no less for protection of the property,
than of the persons, of individuals. The one as well as the
other, therefore, may be considered as represented by those who
are charged with the government. Upon this principle it is, that
in several of the States, and particularly in the State of New
York, one branch of the government is intended more especially to
be the guardian of property, and is accordingly elected by that
part of the society which is most interested in this object of
government. In the federal Constitution, this policy does not
prevail. The rights of property are committed into the same hands
with the personal rights. Some attention ought, therefore, to be
paid to property in the choice of those hands. ``For another
reason, the votes allowed in the federal legislature to the
people of each State, ought to bear some proportion to the
comparative wealth of the States. States have not, like
individuals, an influence over each other, arising from superior
advantages of fortune. If the law allows an opulent citizen but a
single vote in the choice of his representative, the respect and
consequence which he derives from his fortunate situation very
frequently guide the votes of others to the objects of his
choice; and through this imperceptible channel the rights of
property are conveyed into the public representation. A State
possesses no such influence over other States. It is not probable
that the richest State in the Confederacy will ever influence the
choice of a single representative in any other State. Nor will
the representatives of the larger and richer States possess any
other advantage in the federal legislature, over the
representatives of other States, than what may result from their
superior number alone. As far, therefore, as their superior
wealth and weight may justly entitle them to any advantage, it
ought to be secured to them by a superior share of
representation. The new Constitution is, in this respect,
materially different from the existing Confederation, as well as
from that of the United Netherlands, and other similar
confederacies. In each of the latter, the efficacy of the
federal resolutions depends on the subsequent and voluntary
resolutions of the states composing the union. Hence the states,
though possessing an equal vote in the public councils, have an
unequal influence, corresponding with the unequal importance of
these subsequent and voluntary resolutions. Under the proposed
Constitution, the federal acts will take effect without the
necessary intervention of the individual States. They will depend
merely on the majority of votes in the federal legislature, and
consequently each vote, whether proceeding from a larger or
smaller State, or a State more or less wealthy or powerful, will
have an equal weight and efficacy: in the same manner as the
votes individually given in a State legislature, by the
representatives of unequal counties or other districts, have
each a precise equality of value and effect; or if there be any
difference in the case, it proceeds from the difference in the
personal character of the individual representative, rather than
from any regard to the extent of the district from which he
comes. ''Such is the reasoning which an advocate for the
Southern interests might employ on this subject; and although it
may appear to be a little strained in some points, yet, on the
whole, I must confess that it fully reconciles me to the scale of
representation which the convention have established. In one
respect, the establishment of a common measure for representation
and taxation will have a very salutary effect. As the accuracy
of the census to be obtained by the Congress will necessarily
depend, in a considerable degree on the disposition, if not on
the co-operation, of the States, it is of great importance that
the States should feel as little bias as possible, to swell or to
reduce the amount of their numbers. Were their share of
representation alone to be governed by this rule, they would have
an interest in exaggerating their inhabitants. Were the rule to
decide their share of taxation alone, a contrary temptation would
prevail. By extending the rule to both objects, the States will
have opposite interests, which will control and balance each
other, and produce the requisite impartiality. PUBLIUS.


The Total Number of the House of Representatives
From the New York Packet. Friday, February 15, 1788.


To the People of the State of New York:
THE number of which the House of Representatives is to consist,
forms another and a very interesting point of view, under which
this branch of the federal legislature may be contemplated.
Scarce any article, indeed, in the whole Constitution seems to be
rendered more worthy of attention, by the weight of character and
the apparent force of argument with which it has been assailed.
The charges exhibited against it are, first, that so small a
number of representatives will be an unsafe depositary of the
public interests; secondly, that they will not possess a proper
knowledge of the local circumstances of their numerous
constituents; thirdly, that they will be taken from that class of
citizens which will sympathize least with the feelings of the
mass of the people, and be most likely to aim at a permanent
elevation of the few on the depression of the many; fourthly,
that defective as the number will be in the first instance, it
will be more and more disproportionate, by the increase of the
people, and the obstacles which will prevent a correspondent
increase of the representatives. In general it may be remarked on
this subject, that no political problem is less susceptible of a
precise solution than that which relates to the number most
convenient for a representative legislature; nor is there any
point on which the policy of the several States is more at
variance, whether we compare their legislative assemblies
directly with each other, or consider the proportions which they
respectively bear to the number of their constituents. Passing
over the difference between the smallest and largest States, as
Delaware, whose most numerous branch consists of twenty-one
representatives, and Massachusetts, where it amounts to between
three and four hundred, a very considerable difference is
observable among States nearly equal in population. The number of
representatives in Pennsylvania is not more than one fifth of
that in the State last mentioned. New York, whose population is
to that of South Carolina as six to five, has little more than
one third of the number of representatives. As great a disparity
prevails between the States of Georgia and Delaware or Rhode
Island. In Pennsylvania, the representatives do not bear a
greater proportion to their constituents than of one for every
four or five thousand. In Rhode Island, they bear a proportion of
at least one for every thousand. And according to the
constitution of Georgia, the proportion may be carried to one to
every ten electors; and must unavoidably far exceed the
proportion in any of the other States. Another general remark to
be made is, that the ratio between the representatives and the
people ought not to be the same where the latter are very
numerous as where they are very few. Were the representatives in
Virginia to be regulated by the standard in Rhode Island, they
would, at this time, amount to between four and five hundred; and
twenty or thirty years hence, to a thousand. On the other hand,
the ratio of Pennsylvania, if applied to the State of Delaware,
would reduce the representative assembly of the latter to seven
or eight members. Nothing can be more fallacious than to found
our political calculations on arithmetical principles. Sixty or
seventy men may be more properly trusted with a given degree of
power than six or seven. But it does not follow that six or seven
hundred would be proportionably a better depositary. And if we
carry on the supposition to six or seven thousand, the whole
reasoning ought to be reversed. The truth is, that in all cases a
certain number at least seems to be necessary to secure the
benefits of free consultation and discussion, and to guard
against too easy a combination for improper purposes; as, on the
other hand, the number ought at most to be kept within a certain
limit, in order to avoid the confusion and intemperance of a
multitude. In all very numerous assemblies, of whatever character
composed, passion never fails to wrest the sceptre from reason.
Had every Athenian citizen been a Socrates, every Athenian
assembly would still have been a mob.
It is necessary also to
recollect here the observations which were applied to the case of
biennial elections. For the same reason that the limited powers
of the Congress, and the control of the State legislatures,
justify less frequent elections than the public safely might
otherwise require, the members of the Congress need be less
numerous than if they possessed the whole power of legislation,
and were under no other than the ordinary restraints of other
legislative bodies. With these general ideas in our mind, let us
weigh the objections which have been stated against the number of
members proposed for the House of Representatives. It is said, in
the first place, that so small a number cannot be safely trusted
with so much power. The number of which this branch of the
legislature is to consist, at the outset of the government, will
be sixtyfive. Within three years a census is to be taken, when
the number may be augmented to one for every thirty thousand
inhabitants; and within every successive period of ten years the
census is to be renewed, and augmentations may continue to be
made under the above limitation. It will not be thought an
extravagant conjecture that the first census will, at the rate of
one for every thirty thousand, raise the number of
representatives to at least one hundred. Estimating the negroes
in the proportion of three fifths, it can scarcely be doubted
that the population of the United States will by that time, if it
does not already, amount to three millions. At the expiration of
twenty-five years, according to the computed rate of increase,
the number of representatives will amount to two hundred, and of
fifty years, to four hundred. This is a number which, I presume,
will put an end to all fears arising from the smallness of the
body. I take for granted here what I shall, in answering the
fourth objection, hereafter show, that the number of
representatives will be augmented from time to time in the
manner provided by the Constitution. On a contrary supposition, I
should admit the objection to have very great weight indeed. The
true question to be decided then is, whether the smallness of the
number, as a temporary regulation, be dangerous to the public
liberty? Whether sixty-five members for a few years, and a
hundred or two hundred for a few more, be a safe depositary for a
limited and well-guarded power of legislating for the United
States? I must own that I could not give a negative answer to
this question, without first obliterating every impression which
I have received with regard to the present genius of the people
of America, the spirit which actuates the State legislatures, and
the principles which are incorporated with the political
character of every class of citizens I am unable to conceive that
the people of America, in their present temper, or under any
circumstances which can speedily happen, will choose, and every
second year repeat the choice of, sixty-five or a hundred men who
would be disposed to form and pursue a scheme of tyranny or
treachery. I am unable to conceive that the State legislatures,
which must feel so many motives to watch, and which possess so
many means of counteracting, the federal legislature, would fail
either to detect or to defeat a conspiracy of the latter against
the liberties of their common constituents. I am equally unable
to conceive that there are at this time, or can be in any short
time, in the United States, any sixty-five or a hundred men
capable of recommending themselves to the choice of the people at
large, who would either desire or dare, within the short space of
two years, to betray the solemn trust committed to them. What
change of circumstances, time, and a fuller population of our
country may produce, requires a prophetic spirit to declare,
which makes no part of my pretensions. But judging from the
circumstances now before us, and from the probable state of them
within a moderate period of time, I must pronounce that the
liberties of America cannot be unsafe in the number of hands
proposed by the federal Constitution. From what quarter can the
danger proceed? Are we afraid of foreign gold? If foreign gold
could so easily corrupt our federal rulers and enable them to
ensnare and betray their constituents, how has it happened that
we are at this time a free and independent nation? The Congress
which conducted us through the Revolution was a less numerous
body than their successors will be; they were not chosen by, nor
responsible to, their fellowcitizens at large; though appointed
from year to year, and recallable at pleasure, they were
generally continued for three years, and prior to the
ratification of the federal articles, for a still longer term.
They held their consultations always under the veil of secrecy;
they had the sole transaction of our affairs with foreign
nations; through the whole course of the war they had the fate of
their country more in their hands than it is to be hoped will
ever be the case with our future representatives; and from the
greatness of the prize at stake, and the eagerness of the party
which lost it, it may well be supposed that the use of other
means than force would not have been scrupled. Yet we know by
happy experience that the public trust was not betrayed; nor has
the purity of our public councils in this particular ever
suffered, even from the whispers of calumny. Is the danger
apprehended from the other branches of the federal government?
But where are the means to be found by the President, or the
Senate, or both? Their emoluments of office, it is to be
presumed, will not, and without a previous corruption of the
House of Representatives cannot, more than suffice for very
different purposes; their private fortunes, as they must allbe
American citizens, cannot possibly be sources of danger. The
only means, then, which they can possess, will be in the
dispensation of appointments. Is it here that suspicion rests
her charge? Sometimes we are told that this fund of corruption
is to be exhausted by the President in subduing the virtue of the
Senate. Now, the fidelity of the other House is to be the
victim. The improbability of such a mercenary and perfidious
combination of the several members of government, standing on as
different foundations as republican principles will well admit,
and at the same time accountable to the society over which they
are placed, ought alone to quiet this apprehension. But,
fortunately, the Constitution has provided a still further
safeguard. The members of the Congress are rendered ineligible
to any civil offices that may be created, or of which the
emoluments may be increased, during the term of their election.
No offices therefore can be dealt out to the existing members but
such as may become vacant by ordinary casualties: and to suppose
that these would be sufficient to purchase the guardians of the
people, selected by the people themselves, is to renounce every
rule by which events ought to be calculated, and to substitute an
indiscriminate and unbounded jealousy, with which all reasoning
must be vain. The sincere friends of liberty, who give
themselves up to the extravagancies of this passion, are not
aware of the injury they do their own cause. As there is a
degree of depravity in mankind which requires a certain degree of
circumspection and distrust, so there are other qualities in
human nature which justify a certain portion of esteem and
confidence. Republican government presupposes the existence of
these qualities in a higher degree than any other form. Were the
pictures which have been drawn by the political jealousy of some
among us faithful likenesses of the human character, the
inference would be, that there is not sufficient virtue among men
for self-government; and that nothing less than the chains of
despotism can restrain them from destroying and devouring one
another. PUBLIUS.


The Same Subject Continued (The Total Number of the House of
From the New York Packet. Tuesday, February 19, 1788.


To the People of the State of New York:
THE SECOND charge against the House of Representatives is, that
it will be too small to possess a due knowledge of the interests
of its constituents. As this objection evidently proceeds from a
comparison of the proposed number of representatives with the
great extent of the United States, the number of their
inhabitants, and the diversity of their interests, without taking
into view at the same time the circumstances which will
distinguish the Congress from other legislative bodies, the best
answer that can be given to it will be a brief explanation of
these peculiarities. It is a sound and important principle that
the representative ought to be acquainted with the interests and
circumstances of his constituents. But this principle can extend
no further than to those circumstances and interests to which the
authority and care of the representative relate. An ignorance of
a variety of minute and particular objects, which do not lie
within the compass of legislation, is consistent with every
attribute necessary to a due performance of the legislative
trust. In determining the extent of information required in the
exercise of a particular authority, recourse then must be had to
the objects within the purview of that authority. What are to be
the objects of federal legislation? Those which are of most
importance, and which seem most to require local knowledge, are
commerce, taxation, and the militia. A proper regulation of
commerce requires much information, as has been elsewhere
remarked; but as far as this information relates to the laws and
local situation of each individual State, a very few
representatives would be very sufficient vehicles of it to the
federal councils. Taxation will consist, in a great measure, of
duties which will be involved in the regulation of commerce. So
far the preceding remark is applicable to this object. As far as
it may consist of internal collections, a more diffusive
knowledge of the circumstances of the State may be necessary. But
will not this also be possessed in sufficient degree by a very
few intelligent men, diffusively elected within the State? Divide
the largest State into ten or twelve districts, and it will be
found that there will be no peculiar local interests in either,
which will not be within the knowledge of the representative of
the district. Besides this source of information, the laws of the
State, framed by representatives from every part of it, will be
almost of themselves a sufficient guide. In every State there
have been made, and must continue to be made, regulations on this
subject which will, in many cases, leave little more to be done
by the federal legislature, than to review the different laws,
and reduce them in one general act. A skillful individual in his
closet with all the local codes before him, might compile a law
on some subjects of taxation for the whole union, without any aid
from oral information, and it may be expected that whenever
internal taxes may be necessary, and particularly in cases

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