FEDERALIST No. 84
Certain General and Miscellaneous Objections to the Constitution
Considered and Answered
From McLEAN's Edition, New York.
Wednesday, May 28, 1788HAMILTON
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, [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."[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 [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."[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. Idem, Vol. 4, 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.4. Vide Rutherford's Institutes, Vol. 2, Book II, Chapter X, Sections
XIV and XV. Vide also Grotius, Book II, Chapter IX, Sections VIII and IX.