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<h1 class="entry-title"><a rel="bookmark" href="84">Federalist № 84</a></h1>
<h2 class="entry-summary">
Certain General and Miscellaneous Objections to the Constitution
Considered and Answered
</h2>
<div class="entry-content">
<p id="salutation">To the People of the State of New York:</p>
<p id="p1"><span class="initial">In the</span> 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. <a class="permalink" href="#p1">¶</a></p>
<p id="p2">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.
<a class="permalink" href="#p2">¶</a></p>
<p id="p3">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. <a class="permalink"
href="#p3">¶</a></p>
<p id="p4">Independent of those which relate to the structure of
the government, we find the following: <a
href="constitution#a1s3c7">Article 1, section 3, clause 7</a> <q
cite="constitution#a1s3c7">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.</q> <a
href="constitution#a1s9c2">Section 9, of the same article, clause
2</a> <q cite="constitution#a1s9c2">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.</q> <a
href="constitution#a1s9c3">Clause 3</a> <q
cite="constitution#a1s9c3">No bill of attainder or ex-post-facto
law shall be passed.</q> <a href="constitution#a1s9c7">Clause
7</a> <q cite="constitution#a1s9c7">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.</q> <a
href="constitution#a3s2c3">Article 3, section 2, clause 3</a> <q
cite="constitution#a3s2c3">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.</q>
<a href="constitution#a3s3">Section 3, of the same article</a> <q
cite="constitution#a3s3">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.</q> And <a
href="constitution#a3s3c3">clause 3, of the same section</a> <q
cite="constitution#a3s3c3">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.</q> 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 <em>titles of nobility, to which we
have no corresponding provision in our constitution</em>, 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,<a class="note"
href="#note1">1</a> in reference to the latter, are well worthy of
recital: <q>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 <em>a more dangerous engine</em> of
arbitrary government.</q> 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 <q>the
<em>bulwark</em> of the British Constitution.</q><a class="note"
href="#note2">2</a> <a class="permalink" href="#p4">¶</a></p>
<p id="p5">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. <a
class="permalink" href="#p5">¶</a></p>
<p id="p6">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 <q>to such alterations and
provisions as the legislature shall from time to time make
concerning the same.</q> 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. <a class="permalink" href="#p6">¶</a></p>
<p id="p7">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
<em>Magna Charta</em>, obtained by the barons, sword in hand, from
King John. Such were the subsequent confirmations of that charter
by succeeding princes. Such was the <em>Petition of Right</em>
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. <q
cite="constitution#preamble"><em>We, the People</em> of the United
States, to secure the blessings of liberty to ourselves and our
posterity, do <em>ordain</em> and <em>establish</em> this
Constitution for the United States of America.</q> 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. <a
class="permalink" href="#p7">¶</a></p>
<p id="p8">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. <a
class="permalink" href="#p8">¶</a></p>
<p id="p9">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. <a class="permalink" href="#p9">¶</a></p>
<p id="p10">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 <q>the
liberty of the press shall be inviolably preserved</q>? 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.<a class="note"
href="#note3">3</a> And here, after all, as is intimated upon
another occasion, must we seek for the only solid basis of all our
rights. <a class="permalink" href="#p10">¶</a></p>
<p id="p11">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, <em>a bill of rights</em>. 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. <a class="permalink"
href="#p11">¶</a></p>
<p id="p12">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: <q>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.</q> 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 their representatives, 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. <a
class="permalink" href="#p12">¶</a></p>
<p id="p13">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. <a
class="permalink" href="#p13">¶</a></p>
<p id="p14">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. <a class="permalink"
href="#p14">¶</a></p>
<p id="p15">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 <em>to</em> 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 <q><em>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</em>.</q> <a
class="note" href="#note4">4</a> 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. <a class="permalink" href="#p15">¶</a></p>
<p id="p16">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. <a class="permalink"
href="#p16">¶</a></p>
<p id="p17">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. <a
class="permalink" href="#p17">¶</a></p>
<p id="p18">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. <a
class="permalink" href="#p18">¶</a></p>
<p id="p19">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. <a class="permalink" href="#p19">¶</a></p>
<p id="p20">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. <a class="permalink"
href="#p20">¶</a></p>
<p id="p21">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. <a class="permalink"
href="#p21">¶</a></p>
<p id="p22">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. <a class="permalink"
href="#p22">¶</a></p>
<address class="vcard author">
<span class="nickname">Publius</span>.
[<span class="fn">Alexander Hamilton</span>]
</address>
<ol id="notes">
<li id="note1">
Vide Blackstone's "Commentaries," vol. 1., p. 136.
</li>
<li id="note2">
Vide Blackstone's "Commentaries," vol. iv., p. 438.
</li>
<li id="note3">
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.
</li>
<li id="note4">
Rutherford's Institutes, Vol. 2, Book II, Chapter X,4 Sections
XIV and XV. Vide also Grotius, Book II, Chapter IX, Sections
VIII and IX.
</li>
</ol>
</div>
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First published in the <abbr class="published updated"
title="1788-07-16">Wednesday, July 16,</abbr> <abbr
class="published updated" title="1788-07-26">Saturday, July
26,</abbr> and <abbr class="published updated"
title="1788-08-09">Saturday, August 9, 1788</abbr> issues of the
<span class="publication">Independent Journal</span>.
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