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THE FEDERALIST
PAPERS
The
Federalist
By Alexander
Hamilton
July 16,
1788
Certain General and Miscellaneous
Objections to the Constitution Considered and
Answered
To the People of the State of
New
York:
In the course of the foregoing review
of the Constitution, I have taken notice of, and endeavored to
answer most of the objections which have appeared against it.
There, however, remain a few which either did not fall
naturally under any particular head or were forgotten in their
proper places. These shall now be discussed; but as the
subject has been drawn into great length, I shall so far
consult brevity as to comprise all my observations on these
miscellaneous points in a single
paper.
The most considerable of the remaining
objections is that the plan of the convention contains no bill
of rights. Among other answers given to this, it has been upon
different occasions remarked that the constitutions of several
of the States are in a similar predicament. I add that
New
York is of the number. And yet the opposers of the new system, in this State,
who profess an unlimited admiration for its constitution, are
among the most intemperate partisans of a bill of rights. To
justify their zeal in this matter, they allege two things: one
is that, though the constitution of New York has no bill of
rights prefixed to it, yet it contains, in the body of it,
various provisions in favor of particular privileges and
rights, which, in substance amount to the same thing; the
other is, that the Constitution adopts, in their full extent,
the common and statute law of Great Britain, by which many
other rights, not expressed in it, are equally
secured.
To the first I answer, that the
Constitution proposed by the convention contains, as well as
the constitution of this State, a number of such
provisions.
Independent of those which relate to
the structure of the government, we find the following:
Article 1, section 3, clause 7 -- "Judgment in cases of
impeachment shall not extend further than to removal from
office, and disqualification to hold and enjoy any office of
honor, trust, or profit under the United States; but the party
convicted shall, nevertheless, be liable and subject to
indictment, trial, judgment, and punishment according to law."
Section 9, of the same article, clause 2 -- "The privilege of
the writ of habeas corpus shall not be suspended, unless when
in cases of rebellion or invasion the public safety may
require it." Clause 3 -- "No bill of attainder or
ex-post-facto law shall be passed." Clause 7 -- "No title of
nobility shall be granted by the
United
States; and no person holding any office of
profit or trust under them, shall, without the consent of the
Congress, accept of any present, emolument, office, or title
of any kind whatever, from any king, prince, or foreign
state." Article 3, section 2, clause 3 -- "The trial of all
crimes, except in cases of impeachment, shall be by jury; and
such trial shall be held in the State where the said crimes
shall have been committed; but when not committed within any
State, the trial shall be at such place or places as the
Congress may by law have directed." Section 3, of the same
article -- "Treason against the
United
States shall consist only in levying war
against them, or in adhering to their enemies, giving them aid
and comfort. No person shall be convicted of treason, unless
on the testimony of two witnesses to the same overt act, or on
confession in open court." And clause 3, of the same section
-- "The Congress shall have power to declare the punishment of
treason; but no attainder of treason shall work corruption of
blood, or forfeiture, except during the life of the person
attainted."
It may well be a question, whether
these are not, upon the whole, of equal importance with any
which are to be found in the constitution of this State. The
establishment of the writ of habeas
corpus, the prohibition of ex post facto laws, and of TITLES
OF NOBILITY, to which we have no corresponding provision in
our Constitution, are perhaps greater securities to liberty
and republicanism than any it contains. The creation of crimes
after the commission of the fact, or, in other words, the
subjecting of men to punishment for things which, when they
were done, were breaches of no law, and the practice of
arbitrary imprisonments, have been, in all ages, the favorite
and most formidable instruments of tyranny. The observations
of the judicious Blackstone, in reference to the latter, are
well worthy of recital: "To bereave a man of life, [says he]
or by violence to confiscate his estate, without accusation or
trial, would be so gross and notorious an act of despotism, as
must at once convey the alarm of tyranny throughout the whole
nation; but confinement of the person, by secretly hurrying
him to jail, where his sufferings are unknown or forgotten, is
a less public, a less striking, and therefore a more dangerous
engine of arbitrary government." And as a remedy for this
fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas
corpus act, which in one place he calls "the BULWARK of the
British Constitution."
Nothing need be said to illustrate the
importance of the prohibition of titles of nobility. This may
truly be denominated the corner-stone of republican
government; for so long as they are excluded, there can never
be serious danger that the government will be any other than
that of the people.
To the second that is, to the
pretended establishment of the common and state law by the
Constitution, I answer, that they are expressly made subject
"to such alterations and provisions as the legislature shall
from time to time make concerning the same." They are
therefore at any moment liable to repeal by the ordinary
legislative power, and of course have no constitutional
sanction. The only use of the declaration was to recognize the
ancient law and to remove doubts which might have been
occasioned by the Revolution. This consequently can be
considered as no part of a declaration of rights, which under
our constitutions must be intended as limitations of the power
of the government itself.
It has been several times truly
remarked that bills of rights are, in their origin,
stipulations between kings and their subjects, abridgements of
prerogative in favor of privilege, reservations of rights not
surrendered to the prince. Such was MAGNA CHARTA, obtained by
the barons, sword in hand, from King John. Such were the
subsequent confirmations of that charter by succeeding
princes. Such was the Petition of Right assented to by Charles
I., in the beginning of his reign. Such, also, was the
Declaration of Right presented by the Lords and Commons to the
Prince of Orange in 1688, and afterwards thrown into
the form of an act of parliament called the Bill of Rights. It
is evident, therefore, that, according to their primitive
signification, they have no application to constitutions
professedly founded upon the power of the people, and executed
by their immediate representatives and servants. Here, in
strictness, the people surrender nothing; and as they retain
every thing they have no need of particular reservations. "WE,
THE PEOPLE of the United
States, to secure the blessings of liberty
to ourselves and our posterity, do ordain and establish this
Constitution for the
United States of
America." Here is a better recognition of
popular rights, than volumes of those aphorisms which make the
principal figure in several of our State bills of rights, and
which would sound much better in a treatise of ethics than in
a constitution of government.
But a minute detail of particular
rights is certainly far less applicable to a Constitution like
that under consideration, which is merely intended to regulate
the general political interests of the nation, than to a
constitution which has the regulation of every species of
personal and private concerns. If, therefore, the loud clamors
against the plan of the convention, on this score, are well
founded, no epithets of reprobation will be too strong for the
constitution of this State. But the truth is, that both of them contain all which, in
relation to their objects, is reasonably to be
desired.
I go further, and affirm that bills of
rights, in the sense and to the extent in which they are
contended for, are not only unnecessary in the proposed
Constitution, but would even be dangerous. They would contain
various exceptions to powers not granted; and, on this very
account, would afford a colorable pretext to claim more than
were granted. For why declare that things shall not be done
which there is no power to do? Why, for instance, should it be
said that the liberty of the press shall not be restrained,
when no power is given by which restrictions may be imposed? I
will not contend that such a provision would confer a
regulating power; but it is evident that it would furnish, to
men disposed to usurp, a plausible pretense for claiming that
power. They might urge with a semblance of reason, that the
Constitution ought not to be charged with the absurdity of
providing against the abuse of an authority which was not
given, and that the provision against restraining the liberty
of the press afforded a clear implication, that a power to
prescribe proper regulations concerning it was intended to be
vested in the national government. This may serve as a
specimen of the numerous handles which would be given to the
doctrine of constructive powers, by the indulgence of an
injudicious zeal for bills of
rights.
On the subject of the liberty of the
press, as much as has been said, I cannot forbear adding a
remark or two: in the first place, I observe, that there is
not a syllable concerning it in the constitution of this
State; in the next, I contend, that whatever has been said
about it in that of any other State, amounts to nothing. What
signifies a declaration, that "the liberty of the press shall
be inviolably preserved"? What is the liberty of the press?
Who can give it any definition which would not leave the
utmost latitude for evasion? I hold it to be impracticable;
and from this I infer, that its security, whatever fine
declarations may be inserted in any constitution respecting
it, must altogether depend on public opinion, and on the
general spirit of the people and of the government. And here,
after all, as is intimated upon another occasion, must we seek
for the only solid basis of all our
rights.
There remains but one other view of
this matter to conclude the point. The truth is, after all the
declamations we have heard, that the Constitution is itself,
in every rational sense, and to every useful purpose, A BILL
OF RIGHTS. The several bills of rights in
Great
Britain form its Constitution, and conversely
the constitution of each State is its bill of rights. And the
proposed Constitution, if adopted, will be the bill of rights
of the Union. Is it one object of a bill of rights
to declare and specify the political privileges of the
citizens in the structure and administration of the
government? This is done in the most ample and precise manner
in the plan of the convention; comprehending various
precautions for the public security, which are not to be found
in any of the State constitutions. Is another object of a bill
of rights to define certain immunities and modes of
proceeding, which are relative to personal and private
concerns? This we have seen has also been attended to, in a
variety of cases, in the same plan. Adverting therefore to the
substantial meaning of a bill of rights, it is absurd to
allege that it is not to be found in the work of the
convention. It may be said that it does not go far enough,
though it will not be easy to make this appear; but it can
with no propriety be contended that there is no such thing. It
certainly must be immaterial what mode is observed as to the
order of declaring the rights of the citizens, if they are to
be found in any part of the instrument which establishes the
government. And hence it must be apparent, that much of what
has been said on this subject rests merely on verbal and
nominal distinctions, entirely foreign from the substance of
the thing.
Another objection which has been made,
and which, from the frequency of its repetition, it is to be
presumed is relied on, is of this nature: "It is improper [say
the objectors] to confer such large powers, as are proposed,
upon the national government, because the seat of that
government must of necessity be too remote from many of the
States to admit of a proper knowledge on the part of the
constituent, of the conduct of the representative body." This
argument, if it proves any thing, proves that there ought to
be no general government whatever. For the powers which, it
seems to be agreed on all hands, ought to be vested in the
Union, cannot be safely intrusted to a body which is not under
every requisite control. But there are satisfactory reasons to
show that the objection is in reality not well founded. There
is in most of the arguments which relate to distance a
palpable illusion of the imagination. What are the sources of
information by which the people in
Montgomery County must regulate their judgment of the
conduct of their representatives in the State legislature? Of
personal observation they can have no benefit. This is
confined to the citizens on the spot. They must therefore
depend on the information of intelligent men, in whom they
confide; and how must these men obtain their information?
Evidently from the complexion of public measures, from the
public prints, from correspondences with theirrepresentatives, and with other
persons who reside at the place of their deliberations. This
does not apply to Montgomery County only, but to all the counties at any
considerable distance from the seat of
government.
It is equally evident that the same
sources of information would be open to the people in relation
to the conduct of their representatives in the general
government, and the impediments to a prompt communication
which distance may be supposed to create, will be overbalanced
by the effects of the vigilance of the State governments. The
executive and legislative bodies of each State will be so many
sentinels over the persons employed in every department of the
national administration; and as it will be in their power to
adopt and pursue a regular and effectual system of
intelligence, they can never be at a loss to know the behavior
of those who represent their constituents in the national
councils, and can readily communicate the same knowledge to
the people. Their disposition to apprise the community of
whatever may prejudice its interests from another quarter, may be relied upon, if it were
only from the rivalship of power.
And we may conclude with the fullest assurance that the
people, through that channel, will be better informed of the
conduct of their national representatives, than they can be by
any means they now possess of that of their State
representatives.
It ought also to be remembered that
the citizens who inhabit the country at and near the seat of
government will, in all questions that affect the general
liberty and prosperity, have the same interest with those who
are at a distance, and that they will stand ready to sound the
alarm when necessary, and to point out the actors in any
pernicious project. The public papers will be expeditious
messengers of intelligence to the most remote inhabitants of
the Union.
Among the many curious objections
which have appeared against the proposed Constitution, the
most extraordinary and the least colorable is derived from the
want of some provision respecting the debts due to the
United
States. This has been represented as a tacit
relinquishment of those debts, and as
a wicked contrivance to screen public defaulters. The
newspapers have teemed with the most inflammatory railings on
this head; yet there is nothing clearer than that the
suggestion is entirely void of foundation, the offspring of
extreme ignorance or extreme dishonesty. In addition to the
remarks I have made upon the subject in another place, I shall
only observe that as it is a plain dictate of common-sense, so
it is also an established doctrine of political law, that
"States neither lose any of their rights, nor are discharged
from any of their obligations, by a change in the form of
their civil government."
The last objection of any consequence,
which I at present recollect, turns upon the article of
expense. If it were even true, that the adoption of the
proposed government would occasion a considerable increase of
expense, it would be an objection that ought to have no weight
against the plan.
The great bulk of the citizens of
America are with reason convinced, that
Union is the basis of their political
happiness. Men of sense of all parties now, with few
exceptions, agree that it cannot be preserved under the
present system, nor without radical alterations; that new and
extensive powers ought to be granted to the national head, and
that these require a different organization of the federal
government -- a single body being an unsafe depositary of such
ample authorities. In conceding all this, the question of
expense must be given up; for it is impossible, with any
degree of safety, to narrow the foundation upon which the
system is to stand. The two branches of the legislature are,
in the first instance, to consist of only sixty-five persons,
which is the same number of which Congress, under the existing
Confederation, may be composed. It is true that this number is
intended to be increased; but this is to keep pace with the
progress of the population and resources of the country. It is
evident that a less number would, even in the first instance,
have been unsafe, and that a continuance of the present number
would, in a more advanced stage of population, be a very
inadequate representation of the
people.
Whence is the dreaded augmentation of
expense to spring? One source indicated, is the multiplication
of offices under the new government. Let us examine this a
little.
It is evident that the principal
departments of the administration under the present government, are the same which will be
required under the new. There are now
a Secretary of War, a Secretary of Foreign Affairs, a
Secretary for Domestic Affairs, a Board of Treasury,
consisting of three persons, a Treasurer, assistants, clerks,
etc. These officers are indispensable under any system, and
will suffice under the new as well as the old. As to
ambassadors and other ministers and agents in foreign
countries, the proposed Constitution can make no other
difference than to render their characters, where they reside,
more respectable, and their services more useful. As to
persons to be employed in the collection of the revenues, it
is unquestionably true that these will form a very
considerable addition to the number of federal officers; but
it will not follow that this will occasion an increase of
public expense. It will be in most cases nothing more than an
exchange of State for national officers. In the collection of
all duties, for instance, the persons employed will be wholly
of the latter description. The States individually will stand
in no need of any for this purpose. What difference can it
make in point of expense to pay officers of the customs
appointed by the State or by the
United
States? There is no good reason to suppose
that either the number or the salaries of the latter will be
greater than those of the former.
Where then are we to seek for those
additional articles of expense which are to swell the account
to the enormous size that has been represented to us? The
chief item which occurs to me respects the support of the
judges of the United
States. I do not add the President, because
there is now a president of Congress, whose expenses may not
be far, if any thing, short of those which will be incurred on
account of the President of the United States. The support of
the judges will clearly be an extra expense, but to what
extent will depend on the particular plan which may be adopted
in regard to this matter. But upon no reasonable plan can it
amount to a sum which will be an object of material
consequence.
Let us now see what there is to
counterbalance any extra expense that may attend the
establishment of the proposed government. The first thing
which presents itself is that a great part of the business
which now keeps Congress sitting through the year will be
transacted by the President. Even the management of foreign
negotiations will naturally devolve upon him, according to
general principles concerted with the Senate, and subject to
their final concurrence. Hence it is evident that a portion of
the year will suffice for the session of both the Senate and
the House of Representatives; we may suppose about a fourth
for the latter and a third, or perhaps half, for the former.
The extra business of treaties and appointments may give this
extra occupation to the Senate. From this circumstance we may
infer that, until the House of Representatives shall be
increased greatly beyond its present number, there will be a
considerable saving of expense from the difference between the
constant session of the present and the temporary session of
the future Congress.
But there is another circumstance of
great importance in the view of economy. The business of the
United
States has hitherto occupied the State
legislatures, as well as Congress. The latter has made
requisitions which the former have had to provide for. Hence
it has happened that the sessions of the State legislatures
have been protracted greatly beyond what was necessary for the
execution of the mere local business of the States. More than
half their time has been frequently employed in matters which
related to the United
States. Now the members who compose the
legislatures of the several States amount to two thousand and
upwards, which number has hitherto performed what under the
new system will be done in the first instance by sixty-five
persons, and probably at no future period by above a fourth or
fifth of that number. The Congress under the proposed
government will do all the business of the United States
themselves, without the intervention of the State
legislatures, who thenceforth will have only to attend to the
affairs of their particular States, and will not have to sit
in any proportion as long as they have heretofore done. This
difference in the time of the sessions of the State
legislatures will be clear gain, and will alone form an
article of saving, which may be regarded as an equivalent for
any additional objects of expense that may be occasioned by
the adoption of the new system.
The result from these observations is
that the sources of additional expense from the establishment
of the proposed Constitution are much fewer than may have been
imagined; that they are counterbalanced by considerable
objects of saving; and that while it is questionable on which
side the scale will preponderate, it is certain that a
government less expensive would be incompetent to the purposes
of the Union.
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