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STATE IJORMAL SCHOOL,






ED



JOHN J A Y

irsl Chief Justice of the United States

From the original painting by Chappel.



1 ATE NORMAL SCHOO



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Copyright, 1901,



M . WALTER DUNNE,

PUBLISHER



6 c,



ILLUSTRATIONS



John Jay Frontispiece

First Chief Justice of the United States. From the
original painting by Chappel.

St. Stephen's Hall — House of Parliament . Frontispiece

to English Constitution
(v)



\\ $®



VOLUME II.



CONTENTS*



PAGE

No. LXIII. — The Senate Continued i

Prevents a want of a due sense of national character, of a
due responsibility, and of a defense against temporary errors
and delusions — History shows no long-lived republic without
a senate — Difference between the ancient republics and the
United States — Athens, Carthage, Sparta, Rome, Crete — Ob-
jection that the Senate will acquire a dangerous pre-eminence
considered — Such a result impossible — Senate of Maryland —
British Parliament — Sparta, Rome, Carthage — The controll-
ing influence of the House of Representatives.

No. LXIV. — The Powers of the Senate .• 10

The treaty-making power — Importance of this power —
^M~- Property vested in the Senate — A popular body not fit for this
power — Reasons — Objections to this power in the Senate con-
sidered, and reasons for their rejection enumerated — The re-
sponsibility of Senators.

No. LXV. — The Powers of the Senate Continued . . . .17
The appointment of public officers — The authority to sit as
a court in the trial of impeachments — Difficulty of forming
such a court — The Senate most fit for such a trust — The plan
of delegating this authority to the Supreme Court considered
and rejected — The propriety of uniting the Supreme Court
in this power with the Senate considered and denied — The
propriety of giving this authority toother persons disconnected
with any department of the government considered and denied
— Even if this power in the Senate is not desirable the Con-
stitution should not be rejected.

No. LXVI. — Objections to the Power of the Senate to Sit

as a Court for Impeachments Further Considered 23
Objection that it unites legislative and judicial functions
— This same provision in constitution of New York which

* For Index, see p. 209.

(vii)




viii THE FEDERALIST

PAAE

opposition admire — That it unduly accumulates power in the
Senate, and tends to the establishment of an aristocracy —
That the Senate will judge too leniently officers for whose con-
firmation it has voted — That the senators may be called upon
to try themselves for a corrupt use of the treaty-making
power.

No. LXVIL— The Executive Department 30

Misrepresentations on this point considered and answered.

No. LXVII1. — The Mode of Electing the President ... 35

The only part of the Constitution not condemned by its
opponents — It is well guarded — Desirable to have the sense
of the people in the choice — Desirable that the choice should
be made by competent persons, as in the Electoral College:
to avoid tumult and disorder; to avoid intrigue and corrup-
tion ; to maintain the President independent of all but the
people — All these advantages here combined — Choice will
seldom fall on one not qualified — The choice of a Vice-
President by the people considered and approved.

No. LXIX. — The Real Character of the Executive ... 40

A single person — Compared with the king of Great Britain
and the governor of New York — Elected for four years, and
is re-eligible — Further comparison with the same executives —
Liable to impeachment, removal from office, and punishment
by civil law — Compared again as above, and also with gov-
ernors of Maryland and Delaware — Veto power — Compared
again as above, and also with governor of Massachusetts —
Commander-in-chief of militia in federal service — Compared
again as above — Commander-in-chief of the army and navy
of the United States — Compared again as above, and also
with governors of New Hampshire and Massachusetts — Par-
doning power — Compared as above — Treaty-making power
— Compared as above — General review and comparison of
executive powers.

No. LXX. — The Executive Department Further Considered 41

A vigorous Executive consistent with republican govern-
ment — What constitutes a proper Executive — Unity — Rea-
sons for this — Vesting executive authority in two or more
magistrates — Restraining the Executive by a council — Ob-
jections to plurality and control by council enumerated.



CONTENTS ix

PAGK

No. LXXI. — The Duration in Office of the Executive . 59

It affects his firmness in action — More interest in what
is permanent — The Executive should not be subservient to
popular impulses or to those of the legislature — Independ-
ence of departments of government necessary — Shortness of
term will lessen independence — The proposed term of four
years considered.

No. LXXII. — The Same Subject Continued, and Re-eligibil-
ity of the Executive Considered 64

Duration in office affects stability of administration — Heads
of department dependent on Executive and will change with
him — Re-eligibility of Executive — The opposition to it con-
sidered — A limit of a single term would diminish induce-
ments to good behavior, increase temptations to misconduct,
prevent experience in the office, deprive the country in
emergencies of the services of the best men, and act as a
constitutional barrier to stability of administration — The
supposed advantages of a single term considered — The peo-
ple should not be prevented from choosing men of experience.

No. LXXIII. — The Provision for the Support of the Execu-
tive, and the Veto Power 70

Without suitable provision the Executive will be at the
mercy of the legislature, and the independence of the Ex-
ecutive should not be impaired — The veto power — Reasons
for and against enumerated and considered — The veto power
not absolute — It already exists in New York and Mas-
sachusetts.

No. LXXIV. — The Command of the Military and Naval

Forces, and the Pardoning Power of the Executive 77

No. LXXV. — The Treaty-Making Power of the Executive 80
One of the best features of the Constitution — Objection
that it combines the executive and legislative departments
considered — It is a proper combination — Reasons for this —
House of Representatives cannot properly be admitted — Ob-
jection to requiring only two-thirds of Senators present.

No. LXXVI. — The Appointing Power of the Executive . . 86
This an excellent feature — This power cannot be exer-
cised by the people at large — It will cause a livelier sense
of duty in the Executive — Objection to its being intrusted
to the President alone — He may be overruled by Senate —
Concurrence of Senate a check on favoritism — Objection



x THE FEDERALIST

PAGE

that the President may thus control Senate considered —
Whole body of Senate cannot be corrupted— Protection of
Constitution.

No. LXXVII.— The Appointing Power Continued and Other

Powers of the Executive Considered 92

The concurrence of the Senate necessary to displace as
well as to appoint — Objections as to undue control of the
Senate by the President, or the reverse, considered — Com-
pared with system of appointment in New York — Appoint-
ing power should be delegated to a council or shared in by
the House — Power to communicate information to Congress;
to recommend measures to Congress; to convene one or
both branches of Congress; to adjourn Congress; to receive
ambassadors and other public ministers; to execute the laws
of the Union; to commission all officers of the United
States — Concluding remarks on the Executive.

No. LXXVIII. — The Judiciary Department 98

Mode of appointment — Tenure — Need of complete inde-
pendence — Authority pronounced on the constitutionality of
the laws — The legislature should be the judge of its own
powers — Interpretation of the laws the peculiar province of
the judiciary — Need of independence on this account — In-
dependence required for judiciary as guardians of the Con-
stitution and of private rights as well — Wisdom of requiring
good behavior as the tenure.

No. LXXIX. — The Judiciary Continued 107

A fixed provision for the support of the judiciary neces-
sary to their independence — Responsibility of the judiciary
— Judges liable to impeachment — Cannot be made remova-
ble for inability — Reasons for this — Comparison with Con-
stitution of New York.

No. LXXX. — The Powers of the Judiciary ... . . in

To what cases the judicial authority ought to extend —
To all cases which arise from duly enacted laws of the
Union; which concern the execution of the provisions of
the Constitution ; in which the United States is a party ;
which involve the peace of the Union in foreign relations,
or when two States, or a State and the citizens of another
State, or the citizens of different States, are parties; which
originate on the high seas or are of admiralty jurisdiction;
in which State tribunals cannot be supposed to be impli-
cated—To what cases authority of judiciary will extend



CONTENTS xi



under proposed Constitution — Statement of constitutional provi-
sions — These provisions conform to what the powers of the
judiciary ought to be — Propriety of delegating equity
jurisdiction.

No. LXXXI. — The Judiciary Continued, and the Distribu-
tion of the Judicial Authority 119

Propriety of establishing one court of final and supreme
jurisdiction — Propriety of delegating judicial authority to a
distinct department — Objections to this considered — This
delegation of authority secures more completely the separa-
tion of the judiciary from the legislature, recognizes more
fully the principle of good behavior as a tenure, secures
greater legal ability, and removes the judiciary from party
strife — The example of certain of the States — That no legis-
lature can rectify judicial mistakes except as to future action,
and the danger of e'ncroachments by the judiciary on the leg-
islature, considered — Propriety of constituting inferior courts

— Relief to Supreme Court — State courts not fit for this —
Advantage of dividing United States into judicial districts —
Manner in which authority should be distributed — Original
jurisdiction of Supreme Court — Original jurisdiction of infe-
rior courts — Appellate jurisdiction of Supreme Court.

No. LXXXII. — The Judiciary Continued 130

The jurisdiction of the State courts on federal questions

— The State courts will retain all that is not exclusively dele-
gated — Decision of causes arising from a particular regula-
tion may be delegated by Congress exclusively to Supreme
Court — Relation between State and federal courts when they
have concurrent jurisdiction — An appeal will lie from State
courts to the Supreme Court — The appellate jurisdiction of
the inferior federal courts.

No. LXXXIII. — The Judiciary Continued in Relation to

Trial by Jury 135

Objection that there is no provision in the proposed Con-
stitution for trial by jury in civil cases considered — True
meaning of maxims on which this objection rests — Impor-
tance of right of trial by jury considered — Criminal and civil
cases — Jury system in different States — Difficulty of estab-
lishing a general rule — Impropriety of such a general rule
in certain cases — The proposition of Massachusetts — The
provisions of the New York constitution — The proposition
that the jury system should be established in all cases what-
ever — Concluding remarks.



xii THE FEDERALIST

PAGE

No. LXXXIV.— Certain General and Miscellaneous Objec-
tions to the Constitution Considered and An-
swered-, i i5 2

Bill of rights — Liberty of the press — Seat of government
too remote — No provision for debts due to the United States

— Additional expenses of new system — Concluding remarks.

No. LXXXV. — Concluding Remarks 164

Manner in which subject has been discussed — An appeal to
the reader to weigh the matter carefully and act conscientiously

— Confidence of Publius in the arguments which he has ad-
vanced — The conceded imperfections no reason for delay —
Extent of them exaggerated — The Constitution not radically
defective — Rights and interests of the people safe under
Constitution — Not perfect, but a good plan — The state of the
country forbids delay in vainly seeking a perfect plan — Diffi-
culty of having another convention — Easier to cure defects by
amendments after the adoption — No plan can be satisfactory
to all the States — Supposed obstacles in the way of making
subsequent amendments considered — The ease with which a
federal convention may be called to make amendments — Con-
clusion.

Appendix:

The Articles of Confederation 175

The Constitution of the United States and the
Amendments Thereto 185

IlfOBX 209



do & 8-1 A

vcL.H

For the Independent Journal.

THE FEDERALIST. No. LXIII.

(HAMILTON OR MADISON.)

I! 120
To the People of the State of New York :

A fifth desideratum, illustrating the utility of a senate,
is the want of a due sense of national character. With-
out a select and stable member of the government, the
esteem of foreign powers will not only be forfeited by an
unenlightened and variable policy, proceeding from the
causes already mentioned, but the national councils will
not possess that sensibility to the opinion of the world,
which is perhaps not less necessary in order to merit,
than it is to obtain, its respect and confidence.

An attention to the judgment of other nations is
important to every government for two reasons: the one
is, that, independently of the merits of any particular
plan or measure, it is desirable, on various accounts, that
it should appear to other nations as the offspring of a
wise and honorable policy; the second is, that in doubt-
ful cases, particularly where the national councils may be
warped by some strong passion or momentary interest,
the presumed or known opinion of the impartial world
may be the best guide that can be followed. What has
not America lost by her want of character with foreign
nations; and how many errors and follies would she not
have avoided, if the justice and propriety of her meas-
ures had, in every instance, been previously tried by the
light in which they would probably appear to the unbiased
part of mankind ?

Yet however requisite a sense of national character
may be, it is evident that it can never be sufficiently
possessed by a numerous and changeable body. It can
only be found in a number so small that a sensible

2-1 (I)



2 THE FEDERALIST

degree of the praise and blame of public measures
may be the portion of each individual; or in an as-
sembly so durably invested with public trust, that the
pride and consequence of its members may be sen-
sibly incorporated with the reputation and prosperity
of the community. The half-yearly representatives
of Rhode Island would probably have been little af-
fected in their deliberations on the iniquitous meas-
ures of that State, by arguments drawn from the light
in which such measures would be viewed by foreign
nations, or even by the sister States; whilst it can
scarcely be doubted that if the concurrence of a se-
lect and stable body had been necessary, a regard to
national character alone would have prevented the ca-
lamities under which that misguided people is now
laboring.

I add, as a sixth defect the want, in some impor-
tant cases, of a due responsibility in the government
to the people, arising from that frequency of elections
which in other cases produces this responsibility. This
remark will, perhaps, appear not only new, but para-
doxical. It must nevertheless be acknowledged, when
explained, to be as undeniable as it is important.

Responsibility, in order to be reasonable, must be
limited to objects within the power of the responsible
party, and in order to be effectual, must relate to opera-
tions of that power, of which a ready and proper judg-
ment can be formed by the constituents. The objects of
government may be divided into two general classes: the
one depending on measures which have singly an imme-
diate and sensible operation; the other depending on a
succession of well-chosen and well-connected measures,
which have a gradual and perhaps unobserved operation.
The importance of the latter description to the collective
and permanent welfare of every country, needs no expla-
nation. And yet it is evident that an assembly elected
for so short a term as to be unable to provide more than
one or two links in a chain of measures, on which the
general welfare may essentially depend, ought not to be



THE FEDERALIST 3

answerable for the final result, any more than a steward
or tenant, engaged for one year, could be justly made to
answer for places or improvements which could not be
accomplished in less than half a dozen years. Nor is it
possible for the people to estimate the share of influence
which their annual assemblies may respectively have on
events resulting from the mixed transactions of several
years. It is sufficiently difficult to preserve a personal
responsibility in the members of a numerous body, for
such acts of the body as have an immediate, detached,
and palpable operation on its constituents.

The proper remedy for this defect must be an additional
body in the legislative department, which, having suf-
ficient permanency to provide for such objects as require a
continued attention, and a train of measures, may be justly
and effectually answerable for the attainment of those
objects.

Thus far I have considered the circumstances which point
out the necessity of a well-constructed Senate only as
they relate to the representatives of the people. To a
people as little blinded by prejudice or corrupted by
flattery as those whom I address, I shall not scruple to
add, that such an institution may be sometimes necessary
as a defense to the people against their own temporary
errors and delusions. As the cool and deliberate sense
of the community ought, in all governments, and actually
will, in all free governments, ultimately prevail over the
views of its rulers ; so there are particular moments in pub-
lic affairs when the people, stimulated by some irregular
passion, or some illicit advantage, or misled by the artful
misrepresentations of interested men, may call for meas-
ures which they themselves will afterwards be the most
ready to lament and condemn. In these critical moments,
how salutary will be the interference of some temperate
and respectable body of citizens, in order to check the mis-
guided career, and to suspend the blow meditated by the
people against themselves, until reason, justice, and truth
can regain their authority over the public mind? What
bitter anguish would not the people of Athens have often



4 THE FEDERALIST

escaped if their government had contained so provident
a safeguard against the tyranny of their own passions?
Popular liberty might then have escaped the indelible
reproach of decreeing to the same citizens the hemlock on
one day and statues on the next.

It may be suggested, that a people spread over an exten-
sive region cannot, like the crowded inhabitants of a
small district, be subject to the infection of violent pas-
sions, or to the danger of combining in pursuit of unjust
measures. I am far from denying that this is a distinction
of peculiar importance. I have, on the contrary, endeav-
ored in a former paper to show, that it is one of the princi-
pal recommendations of a confederated republic. At the
same time, this advantage ought not to be considered as
superseding the use of auxiliary precautions. It may even
be remarked, that the same extended situation, which will
exempt the people of America from some of the dangers
incident to lesser republics, will expose them to the incon-
veniency of remaining for a longer time under the influ-
ence of those misrepresentations which the combined
industry of interested men may succeed in distributing
among them.

It adds no small weight to all these considerations, to
recollect that history informs us of no long-lived repub-
lic which had not a senate. Sparta, Rome, and Carthage
are, in fact, the only states to whom that character can
be applied. In each of the two first there was a senate
for life. The constitution of the senate in the last is
less known. Circumstantial evidence makes it probable
that it was not different in this particular from the two
others. It is at least certain, that it had some quality
or other which rendered it an anchor against popular
fluctuations; and that a smaller council, drawn out of
the senate, was appointed not only for life, but filled up
vacancies itself. These examples, though as unfit for
the imitation, as they are repugnant to the genius, of
America, are, notwithstanding, when compared with the
fugitive and turbulent existence of other ancient repub-
lics, very instructive proofs of the necessity of some



THE FEDERALIST 5

institution that will blend stability with liberty. I am
not unaware of the circumstances which distinguish the
American from other popular governments, as well ancient
as modern; and which render extreme circumspection
necessary, in reasoning from the one case to the other.
But after allowing due weight to this consideration, it
may still be maintained, that there are many points of
similitude which render these examples not unworthy of
our attention. Many of the defects, as we have seen,
which can only be supplied by a senatorial institution, are
common to a numerous assembly frequently elected by
the people, and to the people themselves. There are
others peculiar to the former, which require the control
of such an institution. The people can never wilfully
betray their own interests; but they may possibly be
betrayed by the representatives of the people; and the
danger will be evidently greater where the whole legis-
lative trust is lodged in the hands of one body of men,
than where the concurrence of separate and dissimilar
bodies is required in every public act.

The difference most relied on, between the American
and other republics, consists in the principle of repre-
sentation ; which is the pivot on which the former move,
and which is supposed to have been unknown to the lat-
ter, or at least to the ancient part of them. The use
which has been made of this difference, in reasonings
contained in former papers, will have shown that I am
disposed neither to deny its existence nor to undervalue
its importance. I feel the less restraint, therefore, in
observing, that the position concerning the ignorance of
the ancient governments on the subject of representation, is
by no means precisely true in the latitude commonly given
to it. Without entering into a disquisition which here
would be misplaced, I will refer to a few known facts, in
support of what I advance.

In the most pure democracies of Greece, many of the
executive functions were performed, not by the people
themselves, but by officers elected by the people, and
representing the people in their executive capacity.



6 THE FEDERALIST

Prior to the reform of Solon, Athens was governed by
nine Archons, annually elected by the people at large.
The degree of power delegated to them seems to be left
in great obscurity. Subsequent to that period, we find an
assembly, first of four, and afterwards of six hundred
members, annually elected by the people ; and par-
tially representing them in their legislative capacity,
since they were not only associated with the people in
the function of making laws, but had the exclusive right
of originating legislative propositions to the people. The
senate of Carthage, also, whatever might be its power,
or the duration of its appointment, appears to have been
elective by the suffrages of the people. Similar instances
might be traced in most, if not all the popular governments
of antiquity.

Lastly, in Sparta we meet with the Ephori, and in Rome
with the Tribunes ; two bodies, small indeed in numbers,
but annually elected by the whole body of the people,
and considered as the representatives of the people,
almost in their plenipotentiary capacity. The Cosmi of



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