The Federalist Papers | Federalist No. 84
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The Federalist Papers | Federalist No. 84


FEDERALIST No. 84. Certain General and Miscellaneous Objections
to the Constitution Considered and Answered. From McLEAN’s Edition, New York. Wednesday, May 28, 1788 HAMILTON
To the People of the State of New York: IN THE course of the foregoing review of the
Constitution, I have taken notice of, and endeavored to answer most of the objections
which have appeared against it. There, however, remain a few which either
did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject
has been drawn into great length, I shall so far consult brevity as to comprise all
my observations on these miscellaneous points in a single paper. The most considerable of the remaining objections
is that the plan of the convention contains no bill of rights. Among other answers given to this, it has
been upon different occasions remarked that the constitutions of several of the States
are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in
this State, who profess an unlimited admiration for its constitution, are among the most intemperate
partisans of a bill of rights. To justify their zeal in this matter, they
allege two things: one is that, though the constitution of New York has no bill of rights
prefixed to it, yet it contains, in the body of it, various provisions in favor of particular
privileges and rights, which, in substance amount to the same thing; the other is, that
the Constitution adopts, in their full extent, the common and statute law of Great Britain,
by which many other rights, not expressed in it, are equally secured. To the first I answer, that the Constitution
proposed by the convention contains, as well as the constitution of this State, a number
of such provisions. Independent of those which relate to the structure
of the government, we find the following: Article 1, section 3, clause 7—”Judgment
in cases of impeachment shall not extend further than to removal from office, and disqualification
to hold and enjoy any office of honor, trust, or profit under the United States; but the
party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment,
and punishment according to law.” Section 9, of the same article, clause 2—”The
privilege of the writ of habeas corpus shall not be suspended, unless when in cases of
rebellion or invasion the public safety may require it.” Clause 3—”No bill of attainder or ex-post-facto
law shall be passed.” Clause 7—”No title of nobility shall be
granted by the United States; and no person holding any office of profit or trust under
them, shall, without the consent of the Congress, accept of any present, emolument, office,
or title of any kind whatever, from any king, prince, or foreign state.” Article 3, section 2, clause 3—”The trial
of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be
held in the State where the said crimes shall have been committed; but when not committed
within any State, the trial shall be at such place or places as the Congress may by law
have directed.” Section 3, of the same article—”Treason
against the United States shall consist only in levying war against them, or in adhering
to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless
on the testimony of two witnesses to the same overt act, or on confession in open court.” And clause 3, of the same section—”The Congress
shall have power to declare the punishment of treason; but no attainder of treason shall
work corruption of blood, or forfeiture, except during the life of the person attainted.” It may well be a question, whether these are
not, upon the whole, of equal importance with any which are to be found in the constitution
of this State. The establishment of the writ of habeas corpus,
the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no
corresponding provision in our Constitution, are perhaps greater securities to liberty
and republicanism than any it contains. The creation of crimes after the commission
of the fact, or, in other words, the subjecting of men to punishment for things which, when
they were done, were breaches of no law, and the practice of arbitrary imprisonments, have
been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone,(1)
in reference to the latter, are well worthy of recital: “To bereave a man of life, (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 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. 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

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