>FEDERALIST No. 84 (Hamilton)                                  .



Certain General and Miscellaneous Objections to the Constitution

 Considered and Answered

From McLEAN's Edition, New York.



HAMILTON



To the People of the State of New York:

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

 have taken notice of, and endeavored to answer most of the

 objections which have appeared against it. There, however, remain a

 few which either did not fall naturally under any particular head or

 were forgotten in their proper places. These shall now be

 discussed; but as the subject has been drawn into great length, I

 shall so far consult brevity as to comprise all my observations on

 these miscellaneous points in a single paper.

The most considerable of the remaining objections is that the

 plan of the convention contains no bill of rights. Among other

 answers given to this, it has been upon different occasions remarked

 that the constitutions of several of the States are in a similar

 predicament. I add that New York is of the number. And yet the

 opposers of the new system, in this State, who profess an unlimited

 admiration for its constitution, are among the most intemperate

 partisans of a bill of rights. To justify their zeal in this

 matter, they allege two things: one is that, though the

 constitution of New York has no bill of rights prefixed to it, yet

 it contains, in the body of it, various provisions in favor of

 particular privileges and rights, which, in substance amount to the

 same thing; the other is, that the Constitution adopts, in their

 full extent, the common and statute law of Great Britain, by which

 many other rights, not expressed in it, are equally secured.

To the first I answer, that the Constitution proposed by the

 convention contains, as well as the constitution of this State, a

 number of such provisions.

Independent of those which relate to the structure of the

 government, we find the following: Article 1, section 3, clause 7

 ``Judgment in cases of impeachment shall not extend further than to

 removal from office, and disqualification to hold and enjoy any

 office of honor, trust, or profit under the United States; but the

 party convicted shall, nevertheless, be liable and subject to

 indictment, trial, judgment, and punishment according to law.''

 Section 9, of the same article, clause 2 ``The privilege of the

 writ of habeas corpus shall not be suspended, unless when in

 cases of rebellion or invasion the public safety may require it.''

 Clause 3 ``No bill of attainder or ex-post-facto law shall be

 passed.'' Clause 7 ``No title of nobility shall be granted by the

 United States; and no person holding any office of profit or trust

 under them, shall, without the consent of the Congress, accept of

 any present, emolument, office, or title of any kind whatever, from

 any king, prince, or foreign state.'' Article 3, section 2, clause

 3 ``The trial of all crimes, except in cases of impeachment, shall

 be by jury; and such trial shall be held in the State where the

 said crimes shall have been committed; but when not committed

 within any State, the trial shall be at such place or places as the

 Congress may by law have directed.'' Section 3, of the same

 article ``Treason against the United States shall consist only in

 levying war against them, or in adhering to their enemies, giving

 them aid and comfort. No person shall be convicted of treason,

 unless on the testimony of two witnesses to the same overt act, or

 on confession in open court.'' And clause 3, of the same

 section ``The Congress shall have power to declare the punishment of

 treason; but no attainder of treason shall work corruption of

 blood, or forfeiture, except during the life of the person attainted.''

 It may well be a question, whether these are not, upon the

 whole, of equal importance with any which are to be found in the

 constitution of this State. The establishment of the writ of

 habeas corpus, the prohibition of ex-post-facto laws, and of

 TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN

 OUR CONSTITUTION, are perhaps greater securities to liberty and

 republicanism than any it contains. The creation of crimes after

 the commission of the fact, or, in other words, the subjecting of

 men to punishment for things which, when they were done, were

 breaches of no law, and the practice of arbitrary imprisonments,

 have been, in all ages, the favorite and most formidable instruments

 of tyranny. The observations of the judicious Blackstone,1 in

 reference to the latter, are well worthy of recital: ``To bereave a

 man of life, Usays he,e or by violence to confiscate his estate,

 without accusation or trial, would be so gross and notorious an act

 of despotism, as must at once convey the alarm of tyranny throughout

 the whole nation; but confinement of the person, by secretly

 hurrying him to jail, where his sufferings are unknown or forgotten,

 is a less public, a less striking, and therefore A MORE DANGEROUS

 ENGINE of arbitrary government.'' And as a remedy for this fatal

 evil he is everywhere peculiarly emphatical in his encomiums on the

 habeas-corpus act, which in one place he calls ``the BULWARK of

 the British Constitution.''2

Nothing need be said to illustrate the importance of the

 prohibition of titles of nobility. This may truly be denominated

 the corner-stone of republican government; for so long as they are

 excluded, there can never be serious danger that the government will

 be any other than that of the people.

To the second that is, to the pretended establishment of the

 common and state law by the Constitution, I answer, that they are

 expressly made subject ``to such alterations and provisions as the

 legislature shall from time to time make concerning the same.''

 They are therefore at any moment liable to repeal by the ordinary

 legislative power, and of course have no constitutional sanction.

 The only use of the declaration was to recognize the ancient law

 and to remove doubts which might have been occasioned by the

 Revolution. This consequently can be considered as no part of a

 declaration of rights, which under our constitutions must be

 intended as limitations of the power of the government itself.

It has been several times truly remarked that bills of rights

 are, in their origin, stipulations between kings and their subjects,

 abridgements of prerogative in favor of privilege, reservations of

 rights not surrendered to the prince. Such was MAGNA CHARTA,

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

 the subsequent confirmations of that charter by succeeding princes.

 Such was the PETITION OF RIGHT assented to by Charles I., in the

 beginning of his reign. Such, also, was the Declaration of Right

 presented by the Lords and Commons to the Prince of Orange in 1688,

 and afterwards thrown into the form of an act of parliament called

 the Bill of Rights. It is evident, therefore, that, according to

 their primitive signification, they have no application to

 constitutions professedly founded upon the power of the people, and

 executed by their immediate representatives and servants. Here, in

 strictness, the people surrender nothing; and as they retain every

 thing they have no need of particular reservations. ``WE, THE

 PEOPLE of the United States, to secure the blessings of liberty to

 ourselves and our posterity, do ORDAIN and ESTABLISH this

 Constitution for the United States of America.'' Here is a better

 recognition of popular rights, than volumes of those aphorisms which

 make the principal figure in several of our State bills of rights,

 and which would sound much better in a treatise of ethics than in a

 constitution of government.

But a minute detail of particular rights is certainly far less

 applicable to a Constitution like that under consideration, which is

 merely intended to regulate the general political interests of the

 nation, than to a constitution which has the regulation of every

 species of personal and private concerns. If, therefore, the loud

 clamors against the plan of the convention, on this score, are well

 founded, no epithets of reprobation will be too strong for the

 constitution of this State. But the truth is, that both of them

 contain all which, in relation to their objects, is reasonably to be

 desired.

I go further, and affirm that bills of rights, in the sense and

 to the extent in which they are contended for, are not only

 unnecessary in the proposed Constitution, but would even be

 dangerous. They would contain various exceptions to powers not

 granted; and, on this very account, would afford a colorable

 pretext to claim more than were granted. For why declare that

 things shall not be done which there is no power to do? Why, for

 instance, should it be said that the liberty of the press shall not

 be restrained, when no power is given by which restrictions may be

 imposed? I will not contend that such a provision would confer a

 regulating power; but it is evident that it would furnish, to men

 disposed to usurp, a plausible pretense for claiming that power.

 They might urge with a semblance of reason, that the Constitution

 ought not to be charged with the absurdity of providing against the

 abuse of an authority which was not given, and that the provision

 against restraining the liberty of the press afforded a clear

 implication, that a power to prescribe proper regulations concerning

 it was intended to be vested in the national government. This may

 serve as a specimen of the numerous handles which would be given to

 the doctrine of constructive powers, by the indulgence of an

 injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been

 said, I cannot forbear adding a remark or two: in the first place,

 I observe, that there is not a syllable concerning it in the

 constitution of this State; in the next, I contend, that whatever

 has been said about it in that of any other State, amounts to

 nothing. What signifies a declaration, that ``the liberty of the

 press shall be inviolably preserved''? What is the liberty of the

 press? Who can give it any definition which would not leave the

 utmost latitude for evasion? I hold it to be impracticable; and

 from this I infer, that its security, whatever fine declarations may

 be inserted in any constitution respecting it, must altogether

 depend on public opinion, and on the general spirit of the people

 and of the government.3 And here, after all, as is intimated

 upon another occasion, must we seek for the only solid basis of all

 our rights.

There remains but one other view of this matter to conclude the

 point. The truth is, after all the declamations we have heard, that

 the Constitution is itself, in every rational sense, and to every

 useful purpose, A BILL OF RIGHTS. The several bills of rights in

 Great Britain form its Constitution, and conversely the constitution

 of each State is its bill of rights. And the proposed Constitution,

 if adopted, will be the bill of rights of the Union. Is it one

 object of a bill of rights to declare and specify the political

 privileges of the citizens in the structure and administration of

 the government? This is done in the most ample and precise manner

 in the plan of the convention; comprehending various precautions

 for the public security, which are not to be found in any of the

 State constitutions. Is another object of a bill of rights to

 define certain immunities and modes of proceeding, which are

 relative to personal and private concerns? This we have seen has

 also been attended to, in a variety of cases, in the same plan.

 Adverting therefore to the substantial meaning of a bill of rights,

 it is absurd to allege that it is not to be found in the work of the

 convention. It may be said that it does not go far enough, though

 it will not be easy to make this appear; but it can with no

 propriety be contended that there is no such thing. It certainly

 must be immaterial what mode is observed as to the order of

 declaring the rights of the citizens, if they are to be found in any

 part of the instrument which establishes the government. And hence

 it must be apparent, that much of what has been said on this subject

 rests merely on verbal and nominal distinctions, entirely foreign

 from the substance of the thing.

Another objection which has been made, and which, from the

 frequency of its repetition, it is to be presumed is relied on, is

 of this nature: ``It is improper Usay the objectorse 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.''4

 The last objection of any consequence, which I at present

 recollect, turns upon the article of expense. If it were even true,

 that the adoption of the proposed government would occasion a

 considerable increase of expense, it would be an objection that

 ought to have no weight against the plan.

The great bulk of the citizens of America are with reason

 convinced, that Union is the basis of their political happiness.

 Men of sense of all parties now, with few exceptions, agree that it

 cannot be preserved under the present system, nor without radical

 alterations; that new and extensive powers ought to be granted to

 the national head, and that these require a different organization

 of the federal government a single body being an unsafe depositary

 of such ample authorities. In conceding all this, the question of

 expense must be given up; for it is impossible, with any degree of

 safety, to narrow the foundation upon which the system is to stand.

 The two branches of the legislature are, in the first instance, to

 consist of only sixty-five persons, which is the same number of

 which Congress, under the existing Confederation, may be composed.

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

 is to keep pace with the progress of the population and resources of

 the country. It is evident that a less number would, even in the

 first instance, have been unsafe, and that a continuance of the

 present number would, in a more advanced stage of population, be a

 very inadequate representation of the people.

Whence is the dreaded augmentation of expense to spring? One

 source indicated, is the multiplication of offices under the new

 government. Let us examine this a little.

It is evident that the principal departments of the

 administration under the present government, are the same which will

 be required under the new. There are now a Secretary of War, a

 Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a

 Board of Treasury, consisting of three persons, a Treasurer,

 assistants, clerks, etc. These officers are indispensable under any

 system, and will suffice under the new as well as the old. As to

 ambassadors and other ministers and agents in foreign countries, the

 proposed Constitution can make no other difference than to render

 their characters, where they reside, more respectable, and their

 services more useful. As to persons to be employed in the

 collection of the revenues, it is unquestionably true that these

 will form a very considerable addition to the number of federal

 officers; but it will not follow that this will occasion an

 increase of public expense. It will be in most cases nothing more

 than an exchange of State for national officers. In the collection

 of all duties, for instance, the persons employed will be wholly of

 the latter description. The States individually will stand in no

 need of any for this purpose. What difference can it make in point

 of expense to pay officers of the customs appointed by the State or

 by the United States? There is no good reason to suppose that

 either the number or the salaries of the latter will be greater than

 those of the former.

Where then are we to seek for those additional articles of

 expense which are to swell the account to the enormous size that has

 been represented to us? The chief item which occurs to me respects

 the support of the judges of the United States. I do not add the

 President, because there is now a president of Congress, whose

 expenses may not be far, if any thing, short of those which will be

 incurred on account of the President of the United States. The

 support of the judges will clearly be an extra expense, but to what

 extent will depend on the particular plan which may be adopted in

 regard to this matter. But upon no reasonable plan can it amount to

 a sum which will be an object of material consequence.

Let us now see what there is to counterbalance any extra expense

 that may attend the establishment of the proposed government. The

 first thing which presents itself is that a great part of the

 business which now keeps Congress sitting through the year will be

 transacted by the President. Even the management of foreign

 negotiations will naturally devolve upon him, according to general

 principles concerted with the Senate, and subject to their final

 concurrence. Hence it is evident that a portion of the year will

 suffice for the session of both the Senate and the House of

 Representatives; we may suppose about a fourth for the latter and a

 third, or perhaps half, for the former. The extra business of

 treaties and appointments may give this extra occupation to the

 Senate. From this circumstance we may infer that, until the House

 of Representatives shall be increased greatly beyond its present

 number, there will be a considerable saving of expense from the

 difference between the constant session of the present and the

 temporary session of the future Congress.

But there is another circumstance of great importance in the

 view of economy. The business of the United States has hitherto

 occupied the State legislatures, as well as Congress. The latter

 has made requisitions which the former have had to provide for.

 Hence it has happened that the sessions of the State legislatures

 have been protracted greatly beyond what was necessary for the

 execution of the mere local business of the States. More than half

 their time has been frequently employed in matters which related to

 the United States. Now the members who compose the legislatures of

 the several States amount to two thousand and upwards, which number

 has hitherto performed what under the new system will be done in the

 first instance by sixty-five persons, and probably at no future

 period by above a fourth or fifth of that number. The Congress

 under the proposed government will do all the business of the United

 States themselves, without the intervention of the State

 legislatures, who thenceforth will have only to attend to the

 affairs of their particular States, and will not have to sit in any

 proportion as long as they have heretofore done. This difference in

 the time of the sessions of the State legislatures will be clear

 gain, and will alone form an article of saving, which may be

 regarded as an equivalent for any additional objects of expense that

 may be occasioned by the adoption of the new system.

The result from these observations is that the sources of

 additional expense from the establishment of the proposed

 Constitution are much fewer than may have been imagined; that they

 are counterbalanced by considerable objects of saving; and that

 while it is questionable on which side the scale will preponderate,

 it is certain that a government less expensive would be incompetent

 to the purposes of the Union.

PUBLIUS.

1. Vide Blackstone's ``Commentaries,'' vol. 1., p. 136.

2. Vide Blackstone's ``Commentaries,'' vol. iv., p. 438.

3. To show that there is a power in the Constitution by which

 the liberty of the press may be affected, recourse has been had to

 the power of taxation.  It is said that duties may be laid upon the

 publications so high as to amount to a prohibition.  I know not by

 what logic it could be maintained, that the declarations in the

 State constitutions, in favor of the freedom of the press, would be

 a constitutional impediment to the imposition of duties upon

 publications by the State legislatures. It cannot certainly be

 pretended that any degree of duties, however low, would be an

 abridgment of the liberty of the press.  We know that newspapers

 are taxed in Great Britain, and yet it is notorious that the press

 nowhere enjoys greater liberty than in that country. And if duties

 of any kind may be laid without a violation of that liberty, it is

 evident that the extent must depend on legislative discretion,

 respecting the liberty of the press, will give it no greater

 security than it will have without them. The same invasions of it

 may be effected under the State constitutions which contain those

 declarations through the means of taxation, as under the proposed

 Constitution, which has nothing of the kind. It would be quite as

 significant to declare that government ought to be free, that taxes

 ought not to be excessive, etc., as that the liberty of the press

 ought not to be restrained.





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