finally transform it into a tyrannical aristocracy,"
considered, 442
i. the impossibility of such a result averred and dis-
cussed, 443
ii. the organization of the Senate of Maryland re-
ferred to, 443
iii. the organization of the two Houses of the British
Parliament, 444
iv. the examples of the ancient republics referred to,. 444
i. Sparta and her Ephori, 444
ii. Rome and her Tribunes, 444
iii. Carthage and her Senate, 445
V. the controlling influence of the House of Repre-
sentatives 445
E. " the powers vested in the Senate," LXHI. 446
a. the treaty-making power, 446
i. the great importance of that power, 44G
ii. the authority to exercise it vested in those who
will be best qualified to exercise it, 446
iii. a popular assembly does not possess such qualifi-
cations, 447
I. an intimate acquaintance with public aflairs ne-
cessary, 447
ii. secrecy and despatch are often required, 449
iv. objections to this part of the proposed Constitution
considered, 450
i. that the treaty-making power has not been dele-
gated to men invested with legislative author-
ity, 450
ii. that treaties so entered into are to be of supreme
authority, 451
iii. that treaties so entered into are not repealable
at pleasure, like Acts of Assembly, 451
iv. that they may be made instruments of oppres-
sion, 451
V. thatproper guards against corruption are wanting, 452
A. the responsibility of senators considered, 452
V. concluding remarks, 458
6. the appointing of public officers, LXIV. 453
c. its authority as a court for the trial of impeach-
ments, 453
i. the difficulty in forming such a court, in an elective
government, 453
xl Contents.
Essay. Page
ii. the subjects of its jurisdiction render the trust a
delicate one, No. LXIV. 453
iii. the Senate the most fit depositary of that trust, . . 454
iv. the propriety of delegating that authority to the
Supreme Court considered, 455
t that court will not possess the fortitude, credit,
and authority requisite to the execution of the
duties of the trust, 455
tV. the membership of the Supreme Court will be
too limited, 456
iii. as the punishment inflicted by the Court of Im-
peachment will not terminate the proceedings,
it will be improper to bring the offender twice
before the same court, 456
V the propriety of a junction of the Supreme Court
with the Senate in this trust, considered and de-
nied, 457
vi. the propriety of delegating this authority to those
who are wholly disconnected with other depart-
ments of the government, considered and denied, 458
vii. the proposed Constitution should not be rejected
for that cause, even if this feature is not the
most desirable, 459
viii. objections to this portion of the new Constitu-
tion considered, LXV. 400
i. it unites legislative and judicial authority in the
same body, 460
A. the inconsistency of those who raise the ob-
jection while they admire the constitution
of New York, in which similar provisions
exist 461
ii, it contributes to an undue accumulation of pow-
er in the Senate, and tend>! toward the estab-
lishment of an aristocracy, 461
iii. as an appointing power, the Senate will be too
lenient judges of the conduct of those whom
they shall have appointed to office, 463
iv. as a treaty-making power, the Senate may be
called to try themselves for corrupt or perfidi-
ous action, 465
d. the Executive department, LXVI. 467
A. the misrepresentations of this subject considered, 467
B. the mode of electing the President considered,
LXVII. 472
a, the only part of the new Constitution which its oppo-
nents do not condemn, 472
Contents, xli
' Essay. Page
6. " it is pretty well guarded," No. LXVII. ^73
c. "it was desirable that tlie sense of the People should
operate in the choice," 473
d. it was desirable that the choice should be made by
competent persons 473
c. it was desirable to avoid tumult and disorder, 473
/ it was desirable to avoid cabal, intrigue, and corrup-
tion, 474
g. it was desirable to maintain the independence of the
President on all but the People themselves, 475
h. " all these advantages will happily combine " in the
proposed Constitution, 475
t. the choice will seldom fall on one who will not be
qualified, 475
C the choice of a Vice-President by the People consid-
ered and approved, 476
D. " the real cliaracters of the proposed Executive " con-
siderril generall}^ LXVIII. 477
a. the executive authority is delegated, generally, to
one person.
477
i. compared with King of Great Britain, 478
ii. compared with Governor of New York 478
6. he is elected for four years, and is reeligible, 478
i. compared with King of Great Britain, 478
ii. compared witli Governor of New York, 478
c. he is liable to impeachment, trial, removal from of-
fice, and subsequent punishment by the civil
law, 478
i. compared with King of Great Britain, 478
ii. compared with Governor of New York, 478
iii. compared with the Governors of Maryland and
Delaware, 478
d. he has the power of vetoing any measure passed by
Congress, 479
i. his authority in this case compared with that of
the King of Great Britain, 479
ii. his authority in this case compared with that of
the Council of Revision in New York, 479
iii. his authority in this case compared with that of
the Governor of New York, 479
iv. his authority in this case compared with that of
the Governor of Massachusetts, 479
e. he is commander-in-chief of the militia, when in the
Foederal service, 480
i. his authority in this case compared with that of
the King of Great Britain, 480
xlii Contents.
Essay. Page
ii. his authority in this case compared with that of
the Governor of New York, No. LXVIII. 480
f. he is commander-in-chief of the army and navy of
tlie United States 480
i. his autliority tlierein compared witli that of the
King of Great Britain, 480
ii. his authority therein compared with tliat of the
Governor of New Yorl<, 480
iii. his authority therein compared witli that of the
Governors of New Hampshire and Massachu-
setts, 481
g. his power to pardon offenders against the laws, 481
i. liis authority tlierein compared with that of the
Governor of New York, 481
h. his power, in one case, to adjourn the Congress,. . . . 482
i. his power therein compared with that of the King
of Great Britain, 482
ii. his power therein compared with that of tlie Gov-
ernor of New York, 482
t. his treaty-making power, .... 482
i. his power therein compared witli tlsat of the King
of Great Britain, 482
j. his power to receive ambassadors and public ministers, 483
k. his power, in connection witli the Senate, to appoint
ambassadors and other ministers, 483
i. his power therein compared with that of the King
of Great Britain 484
ii. his power therein compared witli that of the Gov-
ernor of New York 484
I. the general authority of the President reviewed, and
compared with that of the Governor of New
York, 485
m. the general authority of the President reviewed, and
compared with that of the King of Great Britain,.. 485
E. the provisions of the new Constitution, concerning the
Executive, further considered, LXIX. 486
a. the idea that a vigorous executive is inconsistent
with the genius of republican government exam-
ined and refuted, 486
h. " the ingredients which constitute energy in the Ex-
ecutive " considered, 487
i. unity 488
i. it has been approved by the soundest political
writers 488
ii. it is indisputably conducive to energy, 488
iii. in what manner it may be destroyed, 488
Contents. xliii
Essay. Page
A. by vesting the authority in two or more mag-
istrates, No. LXIX. 488
B. by making tlie authority subject to the coop-
eration and control of a council, 488
a. plurality of magistrates considered, 489
b. the controlling authority of a council con-
sidered, 491
C- the argument reviewed and concluded, 491
1. plurality removes responsibility and de-
stroys the force of popular opinion, 492
2. it tends to concealment of wrong-doing,. 492
3. councils are unnecessary where the mag-
istrate is personally responsible, 494
4. plurality in the Executive will be more
dangerous to liberty, 495
5. plurality will be more expensive,..- 496
duration in office of the Executive, LXX. 496
i, it affects his personal firmness in the employ-
ment of his constitutional powers, 496
A. more interest will be felt in that which is
permanent, 497
B. subserviency to popular impulses not desira-
ble in the Executive, 497
C. subserviency to the humors of the legislature
equally improper, 498
D. independence of the several departments of
government necessary, 499
E. shortness of the term of office will affect the
independence of the Executive, 500
p. a term of four years compared with longer
and shorter terms, 500
It. it affects the stability of his system of adminis-
tration, LXXI. 502
A. the term "administration of government"
defined, 502
B. the heads of foreign, finance, militarj', and
naval departments are only " assistants or
deputies of the cliief magistrate," and ought
to be appointed by him and be subject to his
superintendence, 502
C. changes in the Executive will produce, pri-
marily, changes in these departments, and,
ultimately, changes in the system of admin-
istration, 503
in. the reeligibility of the Executive considered, . . . 503
A. the opposition thereto considered, 503
xliv Contents.
Essay. Page
B. the effects of confining the eligibility to a
single term No. LXXI. 504
a. the inducements to good behavior would be
diminished, 504
b. temptations would be offered to selfishness,
peculation, and usurpation, 504
C. it would deprive the country of experi-
ence in the magistracy, 505
d. it would deprive the country of the servi-
ces of those who can be most useful in
cases of emergency, 506
e. it would operate as a constitutional inter-
diction of stability in the administration,. 606
C. an examination of the supposed advantages
of such a limitation of eligibility, 507
a. greater independence in the magistracy,. . . 507
b. greater security to the People, 507
D. conclusions, on the impropriety of confining
the choice of tlie People, when incumbents
are qualified, to other and inexperienced can-
didates, 508
iii. an adequate provision for its support, LXXII. 508
i. without such a provision the Executive would
be at the mercy of the legislature, 509
u. the independence of tlie Executive cannot be
impaired, 509
iv. competent powers, 510
i. the power of returning bills to the legislature
â– without approval 510
A. the propensity of the legislature to usurp
authority considered, 510
B. the propriety of delegating this authority to
the Executive considered, 510
a. to defend the Executive from legislative
aggressions, 510
b. to defend tiie People from improper legisla-
tion, 511
C. objection, that " one man cannot possess more
wisdom and virtue than a number of men,"
considered, 511
D. objection, that " the power of preventing bad
laws includes tliat of preventing good ones,"
considered, "'â– ^
E. the influence of tlie legislature will prevent
the frequent and incautious use of this
..512
power, "**
Contents. xlv
Essay. Page
p. the greater danger is that it will not be used at
all times when it may be employed usefully,.
No. LXXII. 513
G. the power not being absolute, two thirds of the
legislature may successfully resist it, 614
a, a similar power delegated to the " Council
of Revision " in New York, 515
b. the Governor of Massachusetts possesses a
power similar to that which is here dele-
gated to the Executive, 515
C. the latter preferable to the former, 515
II. the command of the military and naval forces of
the Union, LXXIII. 516
Hi. to require opinions of heads of the executive
departments, 516
IV. the power of pardoning offenders against the
laws of the Union, 517
A. the propriety of delegating it to a single per-
son considered, 517
B. the propriety of delegating authority to the
President to pardon traitors considered, 517
V. in connection with the Senate, to make treaties,
LXXIV. 51.9
A. one of the best digested features of the pro-
posed Constitution, 519
B- objection, tliat it unites the executive and
legislative departments, considered, 520
a. it is a proper combination of the two depart-
ments, 520
b. it is not entirely an executive, nor is it en-
tirely a legislative subject, but combines
the nature of both, 520
C. it cannot properly be delegated to an elec-
tive Executive alone, 521
d. it cannot properly be delegated to the Sen-
ate alone, 522
e. the House of Representatives cannot prop-
erly be admitted to share in that power,. . 523
C. objection, that two thirds of all the Senators
should be required, instead of two thirds of
those present, considered, 523
»i. in connection with the Senate, to appoint certain
public officers, LXXV. 525
A. this feature of the proposed Constitution is
entitled to particular commendation, 526
B. the People at large cannot exercise this power, 526
xlvi Contents.
Essay. Page
C. the President will usually be a man of abil-
ity, No. LXXV. 527
D. the delegation of tliis authority to one man
will beget a livelier sense of duty and greater
regard to reputation than the delegation of it
to many, 527
E. objection, that it should have been delegated
solely to the President, considered, 528
a. all the advantages desired to be gained
thereby will be secured by the proposed
plan, 528
b. the fact that his choice may be overruled by
the Senate considered, 529
C. the necessary concurrence of the Senate
will afibrd a check on the favoritism of the
President, 529
p. objection, that the President thereby may se-
cure the complaisance of the Senate to his
views, considered, 530
a. the integrity of the whole body of the Sen-
ate will check such a result, 531
b. the proposed Constitution has guarded
against it, 531
G. the consent of the Senate will be necessary
to displace as well as to appoint officers of
the government, LXXVI. 532
a. further stability will thereby be secured to
the government, 532
H. objection, that the Senate will be unduly
controlled by the President, considered, 533
I. objection, that the President will be unduly
controlled by the Senate, considered, 533
J. this feature of the proposed Constitution com-
pared with the plan of appointing State offi-
cers in New York, 534
K. the impropriety of delegating this authority
to a council of appointment, 535
L. the impropriety of admitting the House of
Eepresentatives to share in this authority, . . 536
vii. to communicate information to Congress on the
state of the Union, 536
viii. to recommend to Congress the adoption of such
measures as he shall consider expedient, 537
ix. to convene one or both branches of the Con-
gress on extraordinary occasions, 637
X. to adjourn the Congress when there is a dis-
Contents. xlvii
I
Essay. Page
agreement concerning the time of adjourn-
ment, No. LXXVI. 537
xi. to receive ambassadors and other public minis-
ters, 537
xii. to execute the laws of tlie Union 537
xiii. to commission all the officers of the United
States, 537
F. concluding remarks, 537
e. the Judiciary department, LXXVIII. 538
A. " the mode of appointing the judges," considered,. . . . 539
B. "the tenure by which the judges are to hold their
places " considered, 539
a. it is similar to that by which the judges in the sev-
eral States hold office, 539
b. objection thereto considered, 539
i. the Judiciary will be least in a capacity to annoy
the other departments of the government, 539
ii. it is the weakest of the three departments of gov-
ernment, 540
c. the necessity for a complete independence of the Ju-
diciary, {)41
i. the authority of the courts to pronounce legisla-
tive acts void because contrary to the Constitu-
tion, considered, 541
ii. the exercise of that authority does not indicate
that the Judiciary is superior to the legislature, . . 541
iii. that the legislature is the constitutional judge of
its own powers, considered and denied, 542
ir. the interpretation of the laws is the peculiar prov-
ince of the courts, 542
i. the effect of that interpretation on the action of
the courts, 542
V. that consideration a reason for the permanent ten-
ure of the Judiciary, 544
vi. independence of the Judiciary also necessary in
order that it may guard the Constitution and
the rights of individuals from sudden impulses
of popular passion and prejudice, 544
vii. as well as the private rights of individuals from
the mischievous effects of unjust and partial laws, 545
viii. it is necessary, also, to insure an inflexible and
uniform adherence to the rights of the Consti-
tution and of individuals, 546
ix. and from the nature of the qualifications which
are required for the discharge of its duties, 546
d. the wisdom of the provision establishing good be-
xlviii Contents.
1
Essay . Page
havior as the tenure of oflRce in the Judiciary de-
partment considered as conducive to its indepen-
dence, No. LXXVIII. 547
c. a fixed provision for the support of the Judiciary
also contributes to its independence, LXXIX. 548
i. " a power over a man's subsistence amounts to a
power over his will," 548
ii. the provisions of the proposed Constitution on this
subject stated 548
f. the responsibility of the Judiciary considered, 550
i. it will be liable to impeachments under the proposed
Constitution, 550
ii. it is not liable to removal for inability, 550
i. the impossibihty of fixing the limits of ability and
disability, 550
ii. the provisions of the constitution of New York
considered, 550
g. the extent of the authority delegated to the Judi-
ciary, LXXX. 551
i. to what cases the judicial authority of the Union
ought to extend, considered, 551
i. to aH cases arising from the duly enacted laws of
the Union, 552
A. the necessity of a constitutional method of
giving eflBcacy to constitutional provisions,.. 552
B- exami)les referred to, 552
ii. to all cases which concern the execution of the
provisions expressly contained in the articles
of Union, 553
Hi. to all cases in which the United States are a party, 553
iv. to all cases which involve the peace of the con-
federacy, 553
A. in their foreign relations, 553
B. wherein two States, or a State and the citi-
zens of another State, or the citizens of dif-
ferent States, are parties, 554
V to all cases which originate on the high seas,
and are of admiralty or maritime jurisdiction, . 555
vi. to all cases wherein the State tribunals cannot
be supposed to be impartial and unbiased,. . . . 555
ii. to what cases it will extend under the proposed
Constitution, 556
i. the constitutional provision stated generally, 556
ii. the powers thus delegated " conformable to the
principles which ouqhl to have governed the
structure of the Judiciary," 556
Contents. xlix
Kssay. Page
Hi. the propriety of delegating " equity jurisdic-
tion" discussed, No. LXXX. 557
iii. concluding remarks, 558
C. " the partition of the judiciary authority between dif-
ferent courts, and their relations to each other," ....
LXXXI. 559
a. the constitutional provision stated, 559
b. the propriety of establishing " one court of supreme
and final jurisdiction " considered, 560
i. the propriety of delegating that authority to a dis-
tinct department, considered, 560
i. that " the errors and usurpations of such a body
will be unaccountable and remediless " con-
sidered, 560
A. the proposed Constitution does not " directly
empower the Judiciary to construe the laws
according to the spirit of tlie Constitution," 561
ii. it secures more completely the separation of the
Judiciary from the legislature, 561
iii. it. recognizes more fully the principle of good
behavior as the tenure of judicial office, 562
iv. it secures greater legal abihty in the determina-
tion of causes, 562
V. it removes the Judiciary from the arena of party
strife, 562
vi. the example of several States considered, 562
ii. no legislature can rectify the exceptionable de-
cisions of the courts in any other sense than by
prescribing a rule for future action, 563
iii, the " supposed danger of judiciary enci'oachments
on the legislative authority " considered, 563
c. "the propriety of the power of constituting inferior
courts " considered, 564
i. " it obviates the necessity of having recourse to
the Supreme Court in every case of Foederal
cognizance," 564
ii. why the same purpose may not be accomplished
by the instrumentality of the State courts con-
sidered, 565
iii. the advantage to be gained by dividing the United
States into judicial districts, 566
d. "in what manner the judicial authority is to be dis-
tributed between the Supreme and the inferior
courts of the Union," 566
i. the original jurisdiction of the Supreme Court con-
sidered, 666
Contents.
Essay. Pago
{. the Foederal courts have no authority to enforce
the payment of their debts by tlie individual
States, No. LXXXI. 567
ii. the original, jurisdiction of the inferior courts
considered, 568
iii. the appellate jurisdiction of the Supreme Comrt
considered, 568
t. the meaning of the term "appellate" dis-
cussed 568
ii. a review of matters of fact by the Supreme
Court not to be impUed as a necessary conse-
quence, 569
iii. the motives which probably influenced the
Convention in relation to this particular provi-
sion, 570
iv. the Congress will have authority to restrain the
Supreme Court from reexamining matters of
fact, 570
V, concluding remarks, 571
the jurisdiction of the State courts on Foederal ques-
tions considered, LXXXII. 571
i. the individual States "will retain all preexisting au-
thorities which may not be exclusively delegated
to the Foederal head," 572
t. in what that " exclusive delegation " consists, . . . 572
ii. "the State courts will retain the jurisdiction they
now have, unless it appears to be taken away by
exclusive delegation," 572
i. "the concurrent jurisdiction of the State tribu-
nals the most natural and defensible construc-
tion " of the Constitution, 573
ii. this is " only clearly applicable to those descrip-
tions of causes of which the State courts had
previous cognizance,
573
i. the decision of causes arising upon a particular
regulation may be committed by the Congress to
the Foederal courts solely, if it desires to do so, 573
t. this will not divest the State courts of any part
of their /)»-/»»7u-e jurisdiction, further than may
relate to an appeal, 578
ii. nor, except where expressly excluded, of their
right to take cognizance of the causes to which
those particular regulations may give birth, 574-
r. the relation which will subsist between tlie State
and the Foederal courts in instances of concur-
rent jurisdiction, 574
Contents.
i. an appeal will lie from the State courts to the
Supreme Court of the United States,
No . LXXXII. 574
ii. the appellate jurisdiction of the inferior Fceder-
al courts, in such cases, considered, ... 575
D. objection, that no provision has been introduced into
the proposed Constitution to establish the right of
trial by jury in civil cases, considered, . . . .LXXXIII. 576
a. the disingenuous form of the objection considered,. . 577
i. the silence of the Constitution on this subject, 577
ii. rules of legal interpretation appUcable to this case,
considered, 577
iii. " a power to constitute courts is a power to pre-
scribe the mode of trial " therein, 578
iv. concluding remarks, 578
b. the proper use and true meaning of the maxims on
â– which the objection rests, 579
c. the importance of tlie right of trial by jury considered, 581
i. its importance in criminal cases conceded, 581
ii. its I'elative unimportance in civil cases maintained, 581
i. a safeguard against undue taxation, denied, 582
ii. it affords security against official corruption, . . . 583
iii. it is useful in settling questions of property, . . . 584
iii. the extent to which juries are employed in differ-
ent States, 584
d. " no general rule could have been fixed upon by the
Convention which would have corresponded with
the circumstances of all the States," 586
c. " as much might have been hazarded by taking the
system of any one State as a standard, as by omit-
ting it altogether " and leaving it to the Congress,. 586