1787 Federalist 84 · Founding Made Plain

11787 Federalist No. 84

2Certain General and Miscellaneous Objections

3to the Constitution Considered and Answered

4From McLEAN's Edition, New York.

5HAMILTON

6To the People of the State of New York:

7IN THE course of the foregoing review of the Constitution,

8 I have taken notice of, and endeavored to answer

9 most of the objections which have appeared

10 against it.

11There, however, remain a few

12 which either did not fall naturally

13 under any particular head

14 or were forgotten in their proper places.

15These shall now be discussed;

16 but as the subject has been drawn into great length,

17 I shall so far consult brevity

18 as to comprise all my observations

19 on these miscellaneous points in a single paper.

20The most considerable of the remaining objections

21 is that the plan of the convention

22 contains no bill of rights.

23Among other answers given to this,

24 it has been upon different occasions remarked

25 that the constitutions of several of the States

26 are in a similar predicament.

27I add that New York is of the number.

28And yet the opposers of the new system, in this State,

29 who profess an unlimited admiration

30 for its constitution,

31 are among the most intemperate partisans

32 of a bill of rights.

33To justify their zeal in this matter,

34 they allege two things:

35 one is that, though the constitution of New York

36 has no bill of rights prefixed to it,

37 yet it contains, in the body of it,

38 various provisions in favor

39 of particular privileges and rights,

40 which, in substance amount to the same thing;

41 the other is, that the Constitution adopts,

42 in their full extent,

43 the common and statute law of Great Britain,

44 by which many other rights, not expressed in it,

45 are equally secured.

46To the first I answer,

47 that the Constitution proposed by the convention

48 contains,

49 as well as the constitution of this State,

50 a number of such provisions.

51Independent of those which relate

52 to the structure of the government,

53 we find the following:

54 Article 1, section 3, clause 7

55 "Judgment in cases of impeachment

56 shall not extend further than

57 to removal from office,

58 and disqualification to hold and enjoy

59 any office of honor, trust, or profit

60 under the United States;

61 but the party convicted shall, nevertheless,

62 be liable and subject to indictment, trial,

63 judgment, and punishment according to law."

64 Section 9, of the same article, clause 2

65 "The privilege of the writ of habeas corpus

66 shall not be suspended,

67 unless when in cases of rebellion or invasion

68 the public safety may require it."

69 Clause 3

70 "No bill of attainder or ex-post-facto law

71 shall be passed."

72 Clause 7

73 "No title of nobility shall be granted

74 by the United States;

75 and no person holding any office of profit or trust

76 under them, shall, without the consent

77 of the Congress,

78 accept of any present, emolument, office,

79 or title of any kind whatever,

80 from any king, prince, or foreign state."

81 Article 3, section 2, clause 3

82 "The trial of all crimes,

83 except in cases of impeachment, shall be by jury;

84 and such trial shall be held in the State

85 where the said crimes shall have been committed;

86 but when not committed within any State,

87 the trial shall be at such place or places

88 as the Congress may by law have directed."

89 Section 3, of the same article

90 "Treason against the United States

91 shall consist only in levying war against them,

92 or in adhering to their enemies,

93 giving them aid and comfort.

94 No person shall be convicted of treason,

95 unless on the testimony of two witnesses

96 to the same overt act,

97 or on confession in open court."

98 And clause 3, of the same section

99 "The Congress shall have power

100 to declare the punishment of treason;

101 but no attainder of treason shall work

102 corruption of blood, or forfeiture,

103 except during the life of the person attainted."

104It may well be a question,

105 whether these are not, upon the whole,

106 of equal importance with any

107 which are to be found

108 in the constitution of this State.

109The establishment of the writ of habeas corpus,

110 the prohibition of ex-post-facto laws,

111 and of TITLES OF NOBILITY,

112 TO WHICH WE HAVE NO CORRESPONDING PROVISION

113 IN OUR CONSTITUTION,

114 are perhaps greater securities

115 to liberty and republicanism than any it contains.

116The creation of crimes after the commission of the fact,

117 or, in other words,

118 the subjecting of men to punishment for things

119 which, when they were done,

120 were breaches of no law,

121 and the practice of arbitrary imprisonments,

122 have been, in all ages,

123 the favorite and most formidable instruments

124 of tyranny.

125The observations of the judicious Blackstone, 1

126 in reference to the latter, are well worthy of recital:

127 "To bereave a man of life, (says he,)

128 or by violence to confiscate his estate,

129 without accusation or trial,

130 would be so gross and notorious

131 an act of despotism,

132 as must at once convey the alarm of tyranny

133 throughout the whole nation;

134 but confinement of the person,

135 by secretly hurrying him to jail,

136 where his sufferings are unknown or forgotten,

137 is a less public, a less striking,

138 and therefore A MORE DANGEROUS ENGINE

139 of arbitrary government."

140And as a remedy for this fatal evil

141 he is everywhere peculiarly emphatical

142 in his encomiums on the habeas-corpus act,

143 which in one place he calls

144 "the BULWARK of the British Constitution." 2

145Nothing need be said to illustrate the importance

146 of the prohibition of titles of nobility.

147This may truly be denominated

148 the corner-stone of republican government;

149 for so long as they are excluded,

150 there can never be serious danger

151 that the government will be any other

152 than that of the people.

153To the second

154 that is, to the pretended establishment

155 of the common and state law by the Constitution,

156 I answer, that they are expressly made subject

157 "to such alterations and provisions

158 as the legislature shall from time to time

159 make concerning the same."

160They are therefore at any moment liable to repeal

161 by the ordinary legislative power,

162 and of course have no constitutional sanction.

163The only use of the declaration

164 was to recognize the ancient law

165 and to remove doubts

166 which might have been occasioned by the Revolution.

167This consequently can be considered

168 as no part of a declaration of rights,

169 which under our constitutions must be intended

170 as limitations of the power

171 of the government itself.

172It has been several times truly remarked

173 that bills of rights are, in their origin,

174 stipulations between kings and their subjects,

175 abridgements of prerogative in favor of privilege,

176 reservations of rights not surrendered

177 to the prince.

178Such was MAGNA CHARTA,

179 obtained by the barons, sword in hand, from King John.

180Such were the subsequent confirmations of that charter

181 by succeeding princes.

182Such was the PETITION OF RIGHT

183 assented to by Charles I.,

184 in the beginning of his reign.

185Such, also, was the Declaration of Right

186 presented by the Lords and Commons

187 to the Prince of Orange in 1688,

188 and afterwards thrown into the form of an act

189 of parliament called the Bill of Rights.

190It is evident, therefore,

191 that, according to their primitive signification,

192 they have no application to constitutions

193 professedly founded upon the power of the people,

194 and executed by their immediate representatives

195 and servants.

196Here, in strictness, the people surrender nothing;

197 and as they retain every thing

198 they have no need of particular reservations.

199"WE, THE PEOPLE of the United States,

200 to secure the blessings of liberty

201 to ourselves and our posterity,

202 do ORDAIN and ESTABLISH this Constitution

203 for the United States of America."

204Here is a better recognition of popular rights,

205 than volumes of those aphorisms

206 which make the principal figure

207 in several of our State bills of rights,

208 and which would sound much better

209 in a treatise of ethics

210 than in a constitution of government.

211But a minute detail of particular rights

212 is certainly far less applicable

213 to a Constitution like that under consideration,

214 which is merely intended to regulate

215 the general political interests of the nation,

216 than to a constitution which has the regulation

217 of every species of personal and private concerns.

218If, therefore, the loud clamors against the plan

219 of the convention, on this score, are well founded,

220 no epithets of reprobation

221 will be too strong for the constitution

222 of this State.

223But the truth is, that both of them contain all

224 which, in relation to their objects,

225 is reasonably to be desired.

226I go further, and affirm

227 that bills of rights,

228 in the sense and to the extent

229 in which they are contended for,

230 are not only unnecessary

231 in the proposed Constitution,

232 but would even be dangerous.

233They would contain various exceptions

234 to powers not granted;

235 and, on this very account,

236 would afford a colorable pretext

237 to claim more than were granted.

238For why declare that things shall not be done

239 which there is no power to do?

240Why, for instance, should it be said

241 that the liberty of the press shall not be restrained,

242 when no power is given by which restrictions

243 may be imposed?

244I will not contend

245 that such a provision would confer a regulating power;

246 but it is evident that it would furnish,

247 to men disposed to usurp,

248 a plausible pretense for claiming that power.

249They might urge with a semblance of reason,

250 that the Constitution ought not to be charged

251 with the absurdity of providing against the abuse

252 of an authority which was not given,

253 and that the provision against restraining

254 the liberty of the press

255 afforded a clear implication,

256 that a power to prescribe proper regulations

257 concerning it was intended to be vested

258 in the national government.

259This may serve as a specimen

260 of the numerous handles which would be given

261 to the doctrine of constructive powers,

262 by the indulgence of an injudicious zeal

263 for bills of rights.

264On the subject of the liberty of the press,

265 as much as has been said,

266 I cannot forbear adding a remark or two:

267 in the first place, I observe,

268 that there is not a syllable concerning it

269 in the constitution of this State;

270 in the next, I contend,

271 that whatever has been said about it

272 in that of any other State, amounts to nothing.

273What signifies a declaration,

274 that "the liberty of the press

275 shall be inviolably preserved"?

276What is the liberty of the press?

277Who can give it any definition

278 which would not leave the utmost latitude for evasion?

279I hold it to be impracticable;

280 and from this I infer,

281 that its security,

282 whatever fine declarations may be inserted

283 in any constitution respecting it,

284 must altogether depend on public opinion,

285 and on the general spirit of the people

286 and of the government. 3

287And here, after all,

288 as is intimated upon another occasion,

289 must we seek for the only solid basis

290 of all our rights.

291There remains but one other view of this matter

292 to conclude the point.

293The truth is, after all the declamations we have heard,

294 that the Constitution is itself,

295 in every rational sense,

296 and to every useful purpose,

297 A BILL OF RIGHTS.

298The several bills of rights in Great Britain

299 form its Constitution,

300 and conversely the constitution of each State

301 is its bill of rights.

302And the proposed Constitution, if adopted,

303 will be the bill of rights of the Union.

304Is it one object of a bill of rights

305 to declare and specify the political privileges

306 of the citizens

307 in the structure and administration

308 of the government?

309This is done in the most ample and precise manner

310 in the plan of the convention;

311 comprehending various precautions

312 for the public security,

313 which are not to be found

314 in any of the State constitutions.

315Is another object of a bill of rights

316 to define certain immunities and modes of proceeding,

317 which are relative to personal

318 and private concerns?

319This we have seen has also been attended to,

320 in a variety of cases, in the same plan.

321Adverting therefore to the substantial meaning

322 of a bill of rights,

323 it is absurd to allege

324 that it is not to be found

325 in the work of the convention.

326It may be said that it does not go far enough,

327 though it will not be easy to make this appear;

328 but it can with no propriety be contended

329 that there is no such thing.

330It certainly must be immaterial what mode is observed

331 as to the order of declaring the rights

332 of the citizens,

333 if they are to be found in any part of the instrument

334 which establishes the government.

335And hence it must be apparent,

336 that much of what has been said on this subject

337 rests merely on verbal and nominal distinctions,

338 entirely foreign from the substance of the thing.

339Another objection which has been made,

340 and which, from the frequency of its repetition,

341 it is to be presumed is relied on,

342 is of this nature:

343 "It is improper (say the objectors)

344 to confer such large powers, as are proposed,

345 upon the national government,

346 because the seat of that government

347 must of necessity be too remote

348 from many of the States

349 to admit of a proper knowledge on the part

350 of the constituent,

351 of the conduct of the representative body."

352This argument, if it proves any thing,

353 proves that there ought to be

354 no general government whatever.

355For the powers which, it seems to be agreed on all hands,

356 ought to be vested in the Union,

357 cannot be safely intrusted to a body

358 which is not under every requisite control.

359But there are satisfactory reasons to show

360 that the objection is in reality not well founded.

361There is in most of the arguments which relate to distance

362 a palpable illusion of the imagination.

363What are the sources of information

364 by which the people in Montgomery County

365 must regulate their judgment of the conduct

366 of their representatives in the State legislature?

367Of personal observation they can have no benefit.

368This is confined to the citizens on the spot.

369They must therefore depend on the information

370 of intelligent men, in whom they confide;

371 and how must these men obtain their information?

372Evidently from the complexion of public measures,

373 from the public prints,

374 from correspondences with their representatives,

375 and with other persons who reside

376 at the place of their deliberations.

377This does not apply to Montgomery County only,

378 but to all the counties

379 at any considerable distance

380 from the seat of government.

381It is equally evident that the same sources of information

382 would be open to the people

383 in relation to the conduct of their representatives

384 in the general government,

385 and the impediments to a prompt communication

386 which distance may be supposed to create,

387 will be overbalanced by the effects

388 of the vigilance of the State governments.

389The executive and legislative bodies of each State

390 will be so many sentinels

391 over the persons employed in every department

392 of the national administration;

393 and as it will be in their power

394 to adopt and pursue a regular and effectual system

395 of intelligence,

396 they can never be at a loss to know the behavior

397 of those who represent their constituents

398 in the national councils,

399 and can readily communicate the same knowledge

400 to the people.

401Their disposition to apprise the community

402 of whatever may prejudice its interests

403 from another quarter,

404 may be relied upon,

405 if it were only from the rivalship of power.

406And we may conclude with the fullest assurance

407 that the people, through that channel,

408 will be better informed of the conduct

409 of their national representatives,

410 than they can be by any means they now possess

411 of that of their State representatives.

412It ought also to be remembered

413 that the citizens who inhabit the country

414 at and near the seat of government will,

415 in all questions that affect

416 the general liberty and prosperity,

417 have the same interest with those

418 who are at a distance,

419 and that they will stand ready to sound the alarm

420 when necessary,

421 and to point out the actors

422 in any pernicious project.

423The public papers will be expeditious messengers

424 of intelligence

425 to the most remote inhabitants of the Union.

426Among the many curious objections

427 which have appeared against the proposed Constitution,

428 the most extraordinary and the least colorable

429 is derived from the want of some provision

430 respecting the debts due TO the United States.

431This has been represented as a tacit relinquishment

432 of those debts,

433 and as a wicked contrivance

434 to screen public defaulters.

435The newspapers have teemed

436 with the most inflammatory railings on this head;

437 yet there is nothing clearer

438 than that the suggestion is entirely

439 void of foundation,

440 the offspring of extreme ignorance

441 or extreme dishonesty.

442In addition to the remarks I have made

443 upon the subject in another place,

444 I shall only observe

445 that as it is a plain dictate of common-sense,

446 so it is also an established doctrine

447 of political law,

448 that "STATES NEITHER LOSE ANY OF THEIR RIGHTS,

449 NOR ARE DISCHARGED FROM ANY OF THEIR OBLIGATIONS,

450 BY A CHANGE IN THE FORM

451 OF THEIR CIVIL GOVERNMENT." 4

452The last objection of any consequence,

453 which I at present recollect,

454 turns upon the article of expense.

455If it were even true,

456 that the adoption of the proposed government

457 would occasion a considerable increase of expense,

458 it would be an objection

459 that ought to have no weight against the plan.

460The great bulk of the citizens of America

461 are with reason convinced,

462 that Union is the basis

463 of their political happiness.

464Men of sense of all parties now, with few exceptions,

465 agree that it cannot be preserved

466 under the present system,

467 nor without radical alterations;

468 that new and extensive powers

469 ought to be granted to the national head,

470 and that these require a different organization

471 of the federal government

472 a single body being an unsafe depositary

473 of such ample authorities.

474In conceding all this,

475 the question of expense must be given up;

476 for it is impossible, with any degree of safety,

477 to narrow the foundation

478 upon which the system is to stand.

479The two branches of the legislature are,

480 in the first instance, to consist

481 of only sixty-five persons,

482 which is the same number of which Congress,

483 under the existing Confederation, may be composed.

484It is true that this number is intended to be increased;

485 but this is to keep pace with the progress

486 of the population and resources of the country.

487It is evident that a less number would,

488 even in the first instance, have been unsafe,

489 and that a continuance of the present number

490 would, in a more advanced stage of population,

491 be a very inadequate representation of the people.

492Whence is the dreaded augmentation of expense to spring?

493One source indicated,

494 is the multiplication of offices

495 under the new government.

496Let us examine this a little.

497It is evident that the principal departments

498 of the administration under the present government,

499 are the same which will be required under the new.

500There are now a Secretary of War,

501 a Secretary of Foreign Affairs,

502 a Secretary for Domestic Affairs,

503 a Board of Treasury, consisting of three persons,

504 a Treasurer, assistants, clerks, etc.

505These officers are indispensable under any system,

506 and will suffice under the new as well as the old.

507As to ambassadors and other ministers and agents

508 in foreign countries,

509 the proposed Constitution can make no other difference

510 than to render their characters, where they reside,

511 more respectable, and their services more useful.

512As to persons to be employed

513 in the collection of the revenues,

514 it is unquestionably true

515 that these will form a very considerable addition

516 to the number of federal officers;

517 but it will not follow

518 that this will occasion an increase

519 of public expense.

520It will be in most cases nothing more

521 than an exchange of State for national officers.

522In the collection of all duties, for instance,

523 the persons employed will be wholly

524 of the latter description.

525The States individually will stand in no need

526 of any for this purpose.

527What difference can it make in point of expense

528 to pay officers of the customs

529 appointed by the State or by the United States?

530There is no good reason to suppose

531 that either the number or the salaries of the latter

532 will be greater than those of the former.

533Where then are we to seek

534 for those additional articles of expense

535 which are to swell the account

536 to the enormous size that has been

537 represented to us?

538The chief item which occurs to me

539 respects the support of the judges

540 of the United States.

541I do not add the President,

542 because there is now a president of Congress,

543 whose expenses may not be far, if any thing,

544 short of those which will be incurred

545 on account of the President of the United States.

546The support of the judges will clearly be an extra expense,

547 but to what extent will depend

548 on the particular plan

549 which may be adopted in regard to this matter.

550But upon no reasonable plan can it amount to a sum

551 which will be an object of material consequence.

552Let us now see what there is to counterbalance

553 any extra expense that may attend the establishment

554 of the proposed government.

555The first thing which presents itself

556 is that a great part of the business

557 which now keeps Congress sitting through the year

558 will be transacted by the President.

559Even the management of foreign negotiations

560 will naturally devolve upon him,

561 according to general principles

562 concerted with the Senate,

563 and subject to their final concurrence.

564Hence it is evident that a portion of the year

565 will suffice for the session

566 of both the Senate

567 and the House of Representatives;

568 we may suppose about a fourth for the latter

569 and a third, or perhaps half, for the former.

570The extra business of treaties and appointments

571 may give this extra occupation to the Senate.

572From this circumstance we may infer that,

573 until the House of Representatives

574 shall be increased greatly beyond

575 its present number,

576 there will be a considerable saving of expense

577 from the difference between the constant session

578 of the present and the temporary session

579 of the future Congress.

580But there is another circumstance

581 of great importance in the view of economy.

582The business of the United States

583 has hitherto occupied the State legislatures,

584 as well as Congress.

585The latter has made requisitions

586 which the former have had to provide for.

587Hence it has happened

588 that the sessions of the State legislatures

589 have been protracted greatly beyond

590 what was necessary for the execution

591 of the mere local business of the States.

592More than half their time has been frequently employed

593 in matters which related to the United States.

594Now the members who compose the legislatures

595 of the several States amount

596 to two thousand and upwards,

597 which number has hitherto performed

598 what under the new system will be done

599 in the first instance by sixty-five persons,

600 and probably at no future period

601 by above a fourth or fifth of that number.

602The Congress under the proposed government

603 will do all the business of the United States

604 themselves,

605 without the intervention of the State legislatures,

606 who thenceforth will have only to attend

607 to the affairs of their particular States,

608 and will not have to sit in any proportion

609 as long as they have heretofore done.

610This difference in the time of the sessions

611 of the State legislatures will be clear gain,

612 and will alone form an article of saving,

613 which may be regarded as an equivalent

614 for any additional objects of expense

615 that may be occasioned

616 by the adoption of the new system.

617The result from these observations is

618 that the sources of additional expense

619 from the establishment of the proposed Constitution

620 are much fewer than may have been imagined;

621 that they are counterbalanced

622 by considerable objects of saving;

623 and that while it is questionable

624 on which side the scale will preponderate,

625 it is certain that a government less expensive

626 would be incompetent to the purposes of the Union.

627PUBLIUS.

6281. Vide Blackstone's "Commentaries,'' vol. 1., p. 136.

6292. Vide Blackstone's "Commentaries,'' vol. iv., p. 438.

6303. To show that there is a power in the Constitution

631 by which the liberty of the press may be affected,

632 recourse has been had to the power of taxation.

633It is said that duties may be laid upon the publications

634 so high as to amount to a prohibition.

635I know not by what logic it could be maintained,

636 that the declarations in the State constitutions,

637 in favor of the freedom of the press,

638 would be a constitutional impediment

639 to the imposition of duties upon publications

640 by the State legislatures.

641It cannot certainly be pretended

642 that any degree of duties, however low,

643 would be an abridgment of the liberty of the press.

644We know that newspapers are taxed in Great Britain,

645 and yet it is notorious

646 that the press nowhere enjoys greater liberty

647 than in that country.

648And if duties of any kind may be laid

649 without a violation of that liberty,

650 it is evident that the extent

651 must depend on legislative discretion,

652 respecting the liberty of the press,

653 will give it no greater security

654 than it will have without them.

655The same invasions of it may be effected

656 under the State constitutions

657 which contain those declarations

658 through the means of taxation,

659 as under the proposed Constitution,

660 which has nothing of the kind.

661It would be quite as significant to declare

662 that government ought to be free,

663 that taxes ought not to be excessive, etc.,

664 as that the liberty of the press

665 ought not to be restrained.

6664.