 3 January 1788 The result of our reasoning in its preceding numbers is this—that in a confederated government where the powers are divided between the general and the state government, it is essential to its existence that the revenues of the country without which no government can exist should be divided between them, and so apportion to each as to answer their respective exigencies, as far as human wisdom can affect such a division and apportionment. It has been shown that no such allotment is made in this Constitution, but that every source of revenue is under control of the Congress. It therefore follows that if this system is intended to be a complex and not simple, a confederate and not an entire consolidated government, it contains in it the sure seeds of its own dissolution. One of two things must happen—either the new Constitution will become a mere nut-impact them, and all authority of the rulers under it will be cried down as it happened to the present confederation, or the authority of the individual states will be totally supplanted, and they will retain the mere form without any of the powers of government. To one or the other of these issues, I think, this new government, if it is adopted, will advance with great celerity. It is said, I know, that such a separation of the sources of revenue cannot be made without endangering the public safety. Quote, unless, says a writer, it can be shown, that the circumstances which may affect the public safety are reducible within certain determinate limits, unless the contrary of this position can be fairly and rationally disputed, it must be admitted as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, etc. The pretended demonstration of this writer will instantly vanish what is considered that the protection and defense of the community is not intended to be entrusted solely into the hands of the general government, and by his own confession it ought not to be. It is true this system commits to the general government the protection and defense of the community against foreign force and invasion, against piracies and felonies in the high seas, and against insurrections among ourselves. They are also authorized to provide for the administration of justice in certain matters of a general concern, and some that I think are not so. But it ought to be left to the state government to provide for the protection and defense of the citizen against the hand of private violence, and the wrongs done are attempted by individuals to each other. Protection and defense against the murderer, the robber, the thief, the cheat and the unjust person is to be derived from the respective state governments. The just way of reasoning therefore on this subject is this, that the general government is to provide for the protection and defense of the community against foreign attacks, etc. They therefore ought to have authority sufficient to affect this, so far as it is consistent with providing for our internal protection and defense. The state governments are entrusted with the care of administering justice among citizens and the management of other internal concerns. They ought therefore to retain power adequate to the end. The preservation of internal peace and good order, and the due administration of law and justice ought to be the first care of every government. The happiness of a people depends infinitely more on this than it does upon all that glory and respect which nature has acquired by the most brilliant martial achievements, and I believe history will furnish but few examples of nations who have duly attended to these, who have been subdued by foreign invaders. If a proper respect and submission to the law is prevailed over all orders of men in our country, and if the spirit of public and private justice, economy and industry influence the people, we need not be under any apprehensions but what they would be ready to repel any invasion that might be made on the country. And more than this I would not wish from them. A defensive war is the only one I think justifiable. I do not make these observations to prove that a government ought not to be authorized to provide for the protection and defense of a country against external enemies, but to show that this is not the most important, much less the only object of their care. The European governments are almost all of them framed in a minister with a view to arms and war, as that in which the chief glory consists. They mistake the end of government. It was died to save men's lives, not to destroy them. We ought to furnish the world with an example of a great people who in their civil institutions hold chiefly in view the attainment of virtues and happiness among ourselves. Let the monarchs in Europe share among them the glory of depopulating countries and a butchering thousands of their innocent citizens to revenge private quarrels or to punish an insult offered to a wife a mistress or a favorite. I envy them not the honor, and I pray heaven this country may never be ambitious of it. The Tsar Peter the Great acquired great glory by his arms, but all this was nothing compared with the glory which he obtained by civilizing his rude and barbarous subjects, diffusing among them knowledge and establishing and cultivating the arts of life. By the former he desolated countries and drenched the earth with human blood. By the latter he softened the ferocious nature of his people and pointed them to the means of human happiness. The most important end of government then is the proper direction of its internal policy and economy. This is the province of the state governments, and it is evident and is indeed admitted that these ought to be under their control. Is it not then preposterous, and in the highest degree absurd when the state governments are vested with power so essential to the peace and good order of society, to take from them the means of their own preservation? The idea that the powers of Congress in respect to revenue ought to be limited, quote, because the circumstances which may affect the public safety are not reducible to certain determinant limits, close quote, is novel as it relates to the government of the United States. The inconveniences which were derived from the feebleness that the present federation was discussed, and felt soon after its adoption. It was soon discovered that a power to require money without either the authority or means to enforce a collection of it could not be relied upon either to provide for the common defense, the discharge of national debt, or for support of government. Congress therefore, so early as February 1781, recommended to the states to invest them with the power to levy an impulse to 5% at Valorum on all imported goods as a fund to be appropriated to discharge the debts already contracted, or which should hereafter be contracted for the support of the war, to be continued until the debt should be fully and finally discharged. There is not the most distant idea held out in this act that an unlimited power to collect taxes, duties, and excises was necessary to be vested within the United States, and yet this was a time of the most pressing danger and distress. The idea then was, that if a certain definite funds were assigned to the Union, which were certain in their nature is productive and easy of collection, it would enable them to answer their engagements and provide for their defense, and the impulse to 5% was fixed upon for that purpose. This same subject was revived in the winter and spring of 1783, and after long consideration of the subject, and many schemes were proposed. The result was a recommendation of the Revenue System of April 1783. This system does not suggest an idea that was necessary to grant the United States unlimited authority matters of revenue. A variety of amendments were proposed in this system, some of which are upon the journals of Congress, but it does not appear that any of them proposed to invest the general government with discretionary power to raise money. On the contrary, all of them limited them to certain definite objects and fixed the bounds over which they could not pass. This recommendation was passed at the conclusion of the war and was founded on an estimate of the whole national debt. It was computed that one million and a half of dollars, in addition to the imposed, was a sufficient sum to pay the annual interest of the debt and gradually to a polished principle. Events have proved that their estimate was sufficiently liberal, as the domestic debt appears upon its being adjusted to be less than it was computed, and since this period a considerable portion of the principle of the domestic debt has been discharged by the sale of the Western land. It has been constantly urged by Congress and by individuals ever since, until lately, that had this revenue been appropriated by the States as it was recommended, it would have been adequate to every exigency of the Union. Now indeed it is insisted that all the treasures of this country are to be under the control of that body and we are to appoint to provide for our protection and defense against foreign enemies. The debts of the several States and the support of governments of them are to trust to fortune and accident. Since the Union should not have occasion for all the money they can raise, they will leave a portion for the State, but this may be a matter of mere grace and favor. Doctrines like these would not have been listened to by any State in the Union, at a time when we were pressed on every side by a powerful enemy, and were called upon to make greater exertions that we have any reason to expect we shall ever be again. The ability and character of the Convention, who framed the perfect Constitution, is sounded forth and reiterated by every declaimer and writer, in its favor, as a powerful argument to induce its adoption. But are not the Patriots who guided our Councils in the perilous times of the war entitled to equal respect? How has it happened that none of these perceived the truth, which it has pretended is capable of such clear demonstration that the power to raise the revenue should be deposited in the general government without limitation? Were the men so dull of apprehension, so incapable of reasoning as not to be able to draw the inference? The truth is, no such necessity exists. It is a thing practicable and by no means so different as pretended to limit the powers of the general government in respect to revenue, while yet they may retain reasonable means to provide for the common defense. It is admitted that human wisdom cannot foresee all the variety of circumstances that may arise to endanger the safety of nations, and it may, with equal truth be added, that the power of a nation exerted with its utmost figure may not be equal to repel a force with which it may be assailed, much less may it be able, with its ordinary resources and power, to oppose an extraordinary and unexpected attack. But yet every nation may form a rational judgment, what force will be competent to protect and defend it against any enemy which it is probable it may have to contend? In extraordinary attacks every country must rely upon the spirit and spectral exertion of its inhabitants, and these extraordinary efforts will always very much depend upon the happiness and good order of the people experienced from wise and prudent administration of their internal government. The states are as capable of making adjustment on this head as perhaps any nation in the world. We have no powerful nation in our neighborhood. If we are to go to war, it must either be with the aboriginal natives or with European nations. The first is so unequal to a contest with this whole continent that they are rather to be dreaded for the depotations they may make on our frontiers than for any impression they will ever be able to make on the body of the country. Some of the European nations, it is true, have provinces bordering upon us, but from these, unsupported by the European forces, we have nothing to apprehend. If any of them should attack us, they will have to transport their armies across the Atlantic at immense expense while we should defend ourselves in our own country which abounds with every necessity of life. For defense against any assault, which there is any probability will be made upon us, we may easily form an estimate. I may be asked to point out the sources from which the general government could derive a sufficient revenue to answer the demands of the Union. Many might be suggested, and for my part, I am not disposed to be tenacious of my own opinion on the subject. If the object be defined with precision, and will operate to make the burden fall anything nearly equal on the different parts of the Union, I shall be satisfied. There is one sort of revenue which is agreed the general government ought to have the sole control of. This is an imposed upon all goods imported from foreign countries. This would, of itself, be very productive and would be collected with ease and certainty. It will be a fund too, constantly increasing, for our commerce will grow with the productions of the country, and these, together with our consumption of foreign goods, will increase with our population. It is said that the impose will not produce a sufficient sum to satisfy the demands of the general government. Perhaps it would not. Let some other then equally well-defined them. This is practicable as certain, because such particular objects were proposed by some members of Congress when the revenue system of April 1783 was agitated in that body. It was then moved that attacks at a rate of 19th of a dollar on surveyed land and a house tax of half a dollar on a house should be granted to the United States. I do not mention this because I approve of raising a revenue in this mode. I believe such attacks would be difficult in its collection and inconvenient in its operation. But it shows that it has heretofore been the sense of some of those who now contend that the general government should have unlimited authority in matters of revenue, that their authority should be definite and limited on that head. My own opinion is that the objects from which the general government should have authority to raise revenue should it be of such a nature that the tax should be raised by simple laws with few officers, with certainty in expedition, and with the least interference with the internal police of the states. Of this nature is an imposed on imported goods, and it appears to me that a duty on exports would also be of this nature, and therefore, for I can discover, this would be the best source of revenue to grant the general government. I know neither the Congress nor the state legislatures will have authority under the new constitution to raise a revenue in this way, but I cannot perceive the reason for the restriction. It appears to me evident that attacks on articles exported would be as nearly equal to any that we can expect to lay, and it certainly would be collected at more ease and less expense than a direct tax. I do not, however, contend for this mode. It may be liable to well-founded objections that have not occurred to me, but this I do contend for, that some mode is practicable, and that limits must be marked between the general government and the states on this head, or if they be not, either the Congress and the exercising of this power will deprive the state legislations of the means of their existence, or the states, by resisting the constitutional authority of the general government, will render it nukatory. Brutus. End Anti-Federalist Paper, Section 27. Anti-Federalist Paper, Section 28. Brutus Letter 8. This is the LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Reading by M.L. Cohen, Cleveland, Ohio, May 2007. 10 January 1788. The next power is vested by this constitution in the general government, which we shall consider are those which authorize them to, quote, borrow money on the credit of the United States and to raise and support armies, end quote. I take these two together and connect them with the power delay and collect taxes, duties, impost and excises, because their extent and the danger that will arise from the exercise of these powers cannot be fully understood unless they are viewed in relation to each other. The power to borrow money is general and unlimited and the clause so often before referred to authorizes the passing any laws proper and necessary to carry this into execution. Under this authority, the Congress may mortgage any or all of the revenues of the union as the fund to loan money upon. And it is probably in this way that they may borrow foreign nations a principal sum, the interest of which will be equal to the annual revenues of the country. By this means they may create a national debt so large as to exceed the ability of the country ever to sink. I can scarcely contemplate a greater calamity than could befall this country than to be loaded with a debt exceeding their ability ever to discharge. If this be a just remark, it is unwise and improvident to fest in the general government a power to borrow at discretion without any limitation or restriction. It may possibly happen that the safety and welfare of the country may require that money be borrowed. And it's proper when such a necessity arises that the powers should be exercised by the general government. But it certainly ought never to be exercised but on the most urgent occasions. And then we should not borrow foreigners if we could possibly avoid it. The Constitution should therefore have so restricted the exercise of this power as to have rendered it very difficult for the government to practice it. The present confederation requires the assent of nine states to exercise this and a number of the other important powers that confederacy, and it would certainly have been a wise provision in this Constitution that made it necessary that two thirds of the members should have sent to borrowing money when the necessity was indispensable. This assent would always be given and in no other cause ought it be. The power to raise armies is indefinite and unlimited and authorizes the raising forces as well in peace as in war. Whether the clause which empowers the Congress to pass all laws which are proper and necessary to carry this into execution will not authorize them to impress men for the army as a question well worthy of consideration. If the general legislature deem it for the general welfare to raise a body of troops and they cannot be procured by voluntary enlistments, it seems evident that it will be proper and necessary to effect it, that men be impressed from the militia to make up the deficiency. These powers taken in connection amount to this, that the general government have unlimited authority and control over all the wealth and all the force of the union. The advocates for this scheme would favor the world with a new discovery if they would show what kind of freedom or independence is left to the state governments when they cannot command any part of the property or of the force of the country but at the will of Congress. It seems to me as absurd as it would be said that I was free and independent when I'd conveyed all my property to another and was tenant to will to him and had beside given an indenture of myself to serve him during my life. The power to keep upstanding armies in time of peace has been justly objected to this system as dangerous and impoverished. The advocates who have wrote in its favor have some of them ridiculed the objection as though it originated in the distempered brain of its opponents and others have taken pains to show that it is a power that was property be granted to the rulers in this constitution. That you may be enabled to form a just opinion on this subject. I shall first make some remarks tending to prove that this power ought to be restricted and then animadvert on the arguments which have been adduced to justify it. I take it for granted as an axiom in politic that the people should never authorize their rulers to do anything which have done would operate to their injury. It seems equally clear that in the case where a power of given an exercise will generally produce evil to the community and sell them good, and which experience has proved as most frequently been exercised to the great injury and very often to the total destruction of the government, in such a case I say this power of given it all should be if possible so restricted as to prevent the ill effect of its operation. Let us then inquire whether standing armies in time of peace would be ever beneficial to our country or if in some extraordinary cases they might be necessary. Whether there's not true that they have generally provided scourge to a country and destructive of their liberty. I shall not take up much of your time improving a point in which the friends of liberty in all countries have so universally agreed. The following extract from Mr. Putney's speech delivered in the House of Commons of Great Britain on emotion for reducing the army is so full to the point and so much better than anything I can say that I shall be excused for inserting it. He says, quote, I have always been and always shall be against the standing army of any kind. To me it is a terrible thing whether under that of a parliamentary or any other designation. A standing army is still a standing army but whatever name it is called. They are a body of men distinct from the body of the people. They are governed by different laws and blind obedience. And an entire submission to the orders of their commanding officer is their only principles. The nations around us, sir, are already enslaved by those very means. By means of their standing armies they have everyone lost their liberties. It is indeed impossible that the liberties of the people in any country can be preserved where a numerous standing army is kept up. Shall we then take our measures from the example of our neighbor? No, sir, on the contrary, from their misfortunes ought we to learn to avoid those rocks upon which they have split. It signifies nothing to tell me that our army is commanded by such gentlemen as cannot be supposed to join in any measures for enslaving their country. It may be so. I have a very good opinion of many gentlemen now in the army. I believe they would not join in any such measures. But their lives are uncertain. Nor can we be sure how long they will be kept in command. They may all be dismissed in a moment and proper tools of power put in their room. Besides, sir, we know the passions of men. We know how dangerous it is to trust the best of men with too much power. Where was a braver army than that under Julius Caesar? Where was there ever an army that had served their country more faithfully? That army was commanded generally by the best citizens of Rome by men of great fortune and figure in their country, yet that army enslaved their country. The affections of the soldiers toward their country, the honor and integrity of their under officers are not to be depended upon. By the military law, the administration of justice is so quick and the punishment so severe that neither the officer nor soldier dare dispute the orders of his supreme commander. He must not consult his own inclination. If an officer were commanded to pull his own father out of this house, he must do it. He dares not disobey. Immediate death would be the sure consequence of the least scrumbling. And if an officer was sent into the court of request accompanied by a body of musketeers with screwed bayonets and with orders to tell us what we ought to do and how we were to vote. I know what would be the duty of this house. I know it would be our duty to order the officer to be hanged at the door of the lobby. But I doubt, sir, I doubt much if such a spirit could be found in the house or in any house of commons that will ever be in England. Sir, I talk not of imaginary things. I talk of what has happened to an English house of commons from an English army, not only from an English army, but an army that was raised by that very house of commons. An army that was paid by them and an army that was commanded by generals appointed by them. Therefore, do not let us vainly imagine that an army raised and maintained by authority of parliament will always be so submissive to them. If an army be so numerous as to have it in their power to overhaul the parliament, they will be submissive as long as the parliament does nothing to disoblize their favorite general. But when that case happens, I am afraid that in place of the parliament's dismissing the army, the army will dismiss the parliament. End quote. If this great man's reasoning be just, it follows that keeping up a standing army would be in the highest degree dangerous to the liberty and happiness of the community. And if so, the general government ought not to have authority to do it. For no government should be empowered to do that, which, if done, would tend to destroy public liberty. Brutus. End anti-Federalist papers, section 28. Anti-Federalist papers, section 29, Brutus letter nine. This is LibriVox recording. All LibriVox recordings from the public domain for more information or to volunteer, please visit LibriVox.org. Recording by M. L. Cohen, Cleveland, Ohio, May 2007. 17 January 1788. The design of civil government is to protect the rights and promote the happiness of the people. For this end, rulers are invested with powers. But we cannot from hence justly infer that these powers should be unlimited. There are certain rights which mankind possess over which government ought not to have any control because it is not necessary they should in order to attain the end of its institution. There are certain things which rulers should be absolutely prohibited from doing because if they should do them, they would work an injury, not a benefit to the people. Upon the same principles of reasoning, if the exercise of a power is found generally or in most cases to operate to the injury of the community, the legislature should be restricted in the exercise of that power. So as to guard as much as possible against the danger. These principles seem to be evident dictates of common sense. And what ought to give thanks to them in the minds of every American, they are the great principles of the late revolution and those which govern the framers of our state constitutions. Hence we find that all the state constitutions contain either former bills of rights which set the boundaries or powers of legislature or have restrictions for the same purpose in the body of the constitutions. Some of our new political doctors indeed reject the idea of the necessity or propriety of such restrictions in any elective government, but especially in the general one. But it is evident that the framers of this new system were of a contrary opinion because they have prohibited to general government the exercise of sun powers and restricted them in that of others. I shall adduce two instances which will serve to illustrate my meaning as well as to confirm the truth of the preceding remark. In the ninth section it is declared quote, no bill of attainer shall be passed, end quote. This clause takes from the legislature all power to declare a particular person guilty of a crime by law. It is proper the legislature should be deprived the exercise of this power because the seldom is exercised to the benefit of the community, but generally to its injury. In the same section it is provided that quote, the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion and invasion the public safety may require it, end quote. This clause limits the power of the legislature to deprive a citizen of the right of habeas corpus to particular cases that is those of rebellion and invasion. The reason is plain because in no other cases can this power be exercised for the general good. Let us apply these remarks to the case of standing armies in times of peace. If they generally prove the destruction of the happiness and liberty of the people, legislator ought not to have power to keep them up or if they had, this power should be so restricted as to secure the people against the danger arising from the exercise of it. That standing armies of dangers to liberties of the people was proved in my last number. If it was necessary, the truth of the position might be confirmed by history of almost every nation of the world. A cloud of the most illustrious patriots of every Asian country where freedom has been enjoyed might be adduced as witnesses in support of the sentiment. But I presume it would be useless to enter into a labored agreement to prove to the people of America a position which has so long and so generally been received by them as a kind of axiom. Some of the advocates for this new system controversy this sentiment as they do almost every other that has been maintained of the destroyers on free government. Others, though they will not expressly deny the standing armies in time of peace are dangerous, yet join with these in maintaining that it is proper the general government should be vested with the power to do it. I shall now proceed to examine the argument they adduce in support of their opinions. A writer, in favor of this system, treats this objection as a ridiculous one. He supposes it would be as proper to provide against the introduction of Turkish janzeries or against making the Alkaran a rule of faith. From the positive and dogmatic manner in which this also delivers his opinions and answers objections made to his sentiments, one would conclude that he was some pedantic pedagogue who had been accustomed to deliver his dogmas to pupils who always placed implicit faith in what he delivered. But why is this provision so ridiculous? Because, says this author, it is unnecessary. But why is it unnecessary? Quote, because the principles and habits as well as the powers of the American are directly opposed to standing armies and there is this little necessity to guard against them by a positive constitutions as to prohibit the establishment of the Hamahatman religion, end quote. It is admitted then that a standing army in time of peace is an evil. I ask then, why should this government be authorized to do evil? If the principles and habits of the people of this country are opposed to standing armies in time of peace, if they do not contribute to the public good, but with endanger the public liberty and happiness, why should the government be vested with the power? No reason can be given why rulers should be authorized to do what, if done, would oppose the principles and habits of the people and endanger the public safety. But there is every reason in the world that they should be prohibited from the exercise of such a power. But this author supposes that no danger is to be apprehended from the exercise of this power because if armies are kept up, it will be by the people themselves and therefore to provide against it would be as absurd as for a man to quote, pass a law in his family that no troops be quartered in his family by his consent, end quote. This reasoning supposes that the general government is to be exercised by the people of America themselves, but such an idea is groundless and absurd. There is surely a distinction between the people and their rulers, even when the latter are representatives of the former. They certainly are not identically the same and it cannot be disputed, but it may and often does happen that you do not possess the same sentiments or pursue the same interests. I think I have shown that as this government is constituted, there is little reason to expect that the interests of the people and their rulers will be the same. Besides, if the habits and sentiments of the people of America are to be relied upon, as the sole security against encroachment of their rulers, all restrictions and constitutions are unnecessary. Nothing more is requisite than to declare who shall be authorized to exercise the powers of government. And about this, we need not be very careful. For the habits and principles of the people will oppose every abuse of power. This, I suppose, to be the sentiments of this author, as it seems to be many of the advocates of this new system. An opinion like this is as directly opposed to the principles and habits of the people of America as it is to the sentiments of every writer of reputation on the science of government and repugnant to the principles of reason and common sense. The idea that there is no danger of establishment of a standing army under the new constitution is without foundation. It is a well-known fact that a number of those who had an agency in producing this system and many of those who it is probably will have a principle sharing the administration of the government under it if it is adopted, are avowedly in favor of standing armies. It is a language common among them, quote, that no people can be kept in order unless the government have an army to awe them into obedience. It is necessary to support the dignity of government to have a military establishment, end quote. And there will not be wanting a variety of plausible reason to justify the raising one, drawn from the danger we are in from the Indians on our frontiers or from the European provinces in our neighborhood. If to this we add that an army will afford a decent support and agreeable employment to the young men of many families who are too indolent to follow the occupations that will require care and industry and too poor to live without doing any business, we can have little reason to doubt but that we shall have a large standing army as soon as this government can find money to pay them and perhaps sooner. A writer who is the boast of the advocates of the new constitution has taken great pains to show that this power was proper and necessary to be vested in the general government. He sets out with calling in question the candor and integrity of those who advance the objection and with insinuating that as their intention to mislead the people by alarming their passions rather than convince them by arguments addressed to their understandings. The man who reproves another for a fault should be careful that he himself be not guilty of it. How far this writer has manifested a spirit of candor and has pursued fair reasoning on this subject, the impartial public will judge when his arguments pass before them in review. He first attempts to show that this objection is futile and disingenuous because the power to keep up standing armies in time of peace is vested under the present government and the legislature of every state of the union, except two. Now this is so far from being true that it is expressly declared by the present Articles of Confederation that nobody of forces, quote, shall be kept up by any state in time of peace except such number only as in the judgment of the United States and Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such state, end quote. Now was it candid and ingenuous to endeavor to persuade the public that the general government had no other power than your own legislature have on this head when the truth is your legislature have no authority to raise and keep up any forces? He next tells us that the power given by this constitution on this head is similar to that which Congress possess under the present Confederation as little ingenuity is manifested in this representation as in that of the former. I shall not undertake to inquire whether or not Congress are vested with the power to keep up a standing army in time of peace. It has been a subject, warmly debated in Congress more than once since the peace and one of the most respectable states in the union were so fully convinced that they had no such power that they expressly instructed their delegates to enter a solemn protest against it on the journals of Congress should they attempt to exercise it. But should it be admitted that they have the power there is such a striking dissimilarity between the restrictions in which the present Congress can exercise it and that of the proposed government that comparison will serve rather to show the impropriety of vesting the proposed government with the power than of justifying it. It is acknowledged by this writer that the powers of Congress under the present Confederation amount to little more than that of recommending. If they determine the raised troops they are obliged to effect it through the authority of the state legislatures. This will in the first instance be a most powerful restraint upon them against ordering troops to be raised. But if they should vote an army contrary to the opinion and wishes of the people the legislatures of the respective states would not raise them. Besides the present Congress hold their places at the will and pleasure of the legislatures of the states who send them and no troops can be raised but by the assent of nine states out of the 13. Compare the power proposed to be lodged in the legislature on this head under this Constitution with that vested in the present Congress and every person of the least discernment whose understanding is not totally blinded by prejudice will perceive that they bear no analogy to each other. Under the present Confederation the representatives of nine states out of 13 must assent to the raising of troops or they cannot be levied. Under the proposed Constitution a less number than the representatives of two states in the House of Representatives and the representatives of three states and a half in the Senate with the assent of the president may raise any number of troops they please. The present Congress are restrained from an undue exercise of this power. From this consideration they know that the state legislatures through whose authority it must be carried into effect would not comply with the requisition for the purpose if it was evidently opposed to the public good. The proposed Constitution authorizes the legislature to carry their determinations into execution without the intervention of any other body between them and the people. The Congress under the present form are amenable to and removable by the legislatures of the respective states and are chosen for one year only. The proposed Constitution does not make the members of the legislature accountable to or removable by the state legislatures at all. And they are chosen, this one House for six and the other for two years and cannot be removed until their time of service is expired let them conduct themselves ever so badly. The public will judge from the above comparison how just the claim this writer has to that candor he affects to possess. In the meantime, to convince him and the advocates for this system that I possess some share of candor I pledge myself to give up all opposition to it on the head of standing armies if the power to raise them be restricted as it is in the present confederation and I believe I may safely answer not only for myself but for all who make the objection that they will be satisfied with less. Brutus End Anti-Federalist Papers, Section 29 This is LibriVox Recording. All LibriVox recordings are in the public domain for more information or to volunteer. Please visit LibriVox.org The Anti-Federalist Papers The Anti-Federalist Papers, Section 30, Brutus Letter 10 Read by M. L. Cohen, Cleveland, Ohio, May 2007 24 January 1788 To the people of the State of New York The liberties of the people are in danger from a large standing army not only because the rulers may employ them for the purposes of supporting themselves and any usurpations of power which they may see proper to exercise but there is great hazard that an army will subvert the form to the government under whose authority they are raised and establish one according to the pleasure of their leader. We are informed in the faithful pages of history of such events frequently happening. Two instances have been mentioned in a former paper. They are so remarkable that they are worthy of the most careful attention of every lover of freedom. They are taken from the history of the two most powerful nations that have ever existed in the world and who are the most renowned and enjoyed and excellencies of their constitutions. I mean Rome and Britain. In the first, the liberties of the Commonwealth was destroyed and the Constitution overturned by an army led by Julius Caesar who was appointed to the command by the constitutional authority of that Commonwealth. He changed it from a free republic whose fame has sounded and is still celebrated by all the world into that of the most absolute despotism. A standing army affected this change and a standing army supported it through a succession of ages which are marked in the annals of history with the most horrid cruelties, bloodshed and carnage, the most devilish, beastly and unnatural vices that ever punished or disgraced human nature. The same army that in Britain vindicated the liberties of that people from the encroachments and despotism of a tyrant king assisted Cromwell, their general, wrestling from the people that liberty they had so dearly earned. You may be told these instances will not apply to our case, but those who would persuade you to believe this either mean to deceive you or have not themselves considered the subject. I firmly believe no country in the world had ever a more patriotic army than the one which so ably served this country in the late war. But had the general who commanded them been possessed of the spirit of Julius Caesar or Cromwell, the liberties of this country had in all probability terminated with the war, or had they been maintained might have cost more blood and treasure than was expended in the conflict with Great Britain. When an anonymous writer addressed the officers of the army at the close of the war, advising them not to part with their arms until justice was done them, the effect it had is well known. It effected them like an electric shock. He wrote like Caesar and had the commander in chief and a few more officers of rank countenanced the measure. The desperate resolution had been taken to refuse to disband. What the consequences of such a determination would have been, heaven only knows. The army were in the full vigor of health and spirits and the habit of discipline and possessed of all our military stores and apparatus. They would have acquired great accessions of strength from the country. Those who were disgusted at our republican forms of government, parense for such then there were of high rank among us and parense would have lent them all their aid. We should in all probability have seen a constitution and laws dictated us at the head of an army and at the point of a bayonet and the liberties for which we had so severely struggled snatched from us in a moment. It remains a secret yet to be revealed whether this measure was not suggested or at least countenance by some who have had great influence in the producing the present system. Fortunately indeed for this country, it had at the head of an army a patriot as well as a general and many of our principal officers had not appended the characters of citizens by assuming that of soldiers and therefore the scheme proved avortive. But are we to expect that this will always be the case? Are we so much better than the people of other ages and of other countries that the same allurements of power and greatness that demonstrate from their duty will have no influence upon men in our country? Such an idea is wild and extravagant. Had we indulged such a delusion, enough has appeared in a little time past to convince the most credulous that the passion for power and greatness works as powerfully in the hearts of many of our better sort as it ever did in any country under heaven. Were the same opportunity again to offer, we should very properly be grossly disappointed if we made dependence that all who then rejected to overture would do it again. From these remarks it appears that the evil to be feared from a large standing army in time of peace does not arise solely from the apprehension that the rulers may employ them for the purposes of promoting their own ambitious views but that equal and perhaps greater danger is to be apprehended from their overturning the constitutional powers of the government and assuming the powers to dictate any form they please. The advocates for power and support of this right in the proposed government urged that a restraint upon the discretion of the legislatures in respect to military establishments in time of peace would be improper to be imposed because they say it will be necessary to maintain small garrisons on the frontiers to guard against the depredation of the Indians and to be prepared to repel any encroachments or invasions that may be made by Spain or Britain. The amount of this argument stripped of the abundant verbiages which would see Arthur as dressed it, is this. It will probably be necessary to keep up a small body of troops to garrison a few posts which it will be necessary to maintain in order to guard against the sudden encroachments of the Indians or of the Spaniards and British. And therefore the general government ought to be invested with power to raise and keep up a standing army in time of peace without restraint at their discretion. I confess, I cannot perceive that the conclusion follows from the premises. Logicians say it is not good reasoning to infer a general conclusion from particular premises. Though I am not much of a logician, it seems to me that this argument is very like that species of reasoning. When the patriots in the parliament in Great Britain contended with such force of argument and all the powers of eloquence against keeping up standing armies in time of peace, it is obvious they never entertained an idea that small garrison on the frontiers or in the neighborhood of powers from whom they were endager of encroachments or guards to take care of public arsenals would thereby be prohibited. The advocates for this power farther urged that it is necessary because it may and probably will happen that circumstances will render it requisite to raise an army to be prepared to repel attacks of an enemy before a formal declaration of war which in modern times has fallen into disuse. If the Constitution prohibited the raising of an army until a war actually commenced it would deprive the government of the power providing for the defense of the country until the enemy were within our territory. If the restriction is not to extend to the raising armies in cases of emergency but only to the keeping them up this would leave the matter to the discretion of the legislature and they might under the pretense that there was danger of an invasion keep up the army as long as they judge proper and hence it is inferred that the legislature should have authority to raise and keep up an army without any restriction. But from these premises nothing more will fall than this that the legislature should not be so restrained as to put it out of their power to raise an army when such exigencies as our instance shall arise. But it does not thence follow that the government should be empowered to raise and maintain standing armies at the discretion as well in peace as in war. If indeed it is impossible to vest the general government with the power of raising troops to garrison the frontier posts to guard arsenals or to be prepared to repel an attack when we saw a power preparing to make one without giving them a general and indefinite authority to raise and keep up armies without any restriction or qualification then this reasoning might have weight. But this has not been proved nor can it be. It is admitted that to prohibit the general government from keeping up standing armies and authorize to raise them in case of exigency would be an insufficient guard against the danger. A discretion of such latitude would give room to elude the force of the provision. It is also admitted that an absolute prohibition against raising troops except in cases of actual war would be improper because it will be requisite to raise and support a small number of troops to garrison the important frontier posts and to guard arsenals and it may happen that the danger of an attack will be so imminent as to render it highly proper we should raise an army in order to be prepared to resist them. But to raise and keep up forces for such purposes and on such occasions is not included in the idea of keeping up standing armies in times of peace. It is a thing very practicable to give the government sufficient authority to provide for these cases and at the same time to provide a reasonable and competent security a clause to the following purpose would answer the end. As standing armies in time of peace are dangerous to liberty and have often been the means of overturning the best constitutions of government no standing army or troops of any description whatsoever shall be raised or kept up by the legislature except so many as shall be necessary for guards to the arsenals of the United States or for garrisons to such posts on the frontiers at shall be deemed absolutely necessary to hold, to secure the inhabitants and to facilitate the trade with the Indians unless when the United States are threatened with an attack or invasion from some foreign power in which case the legislature shall be authorized to raise an army to be prepared to repel the attack provided that no troops whatsoever shall be raised in time of peace without the assent of two thirds of the members comprising both houses of the legislature. A clause similar to this would afford sufficient latitude to the legislature to raise troops in all cases that were really necessary and at the same time competent security against the establishment of that dangerous engine of despotism a standing army. The same writer who advances the arguments I have noticed makes a number of other observations with a view to prove that the power to raise and keep up armies ought to be discretionary in the general legislature. Some of them are curious. He instances the raising troops in Massachusetts and Pennsylvania to show the necessity of keeping a standing army in time of peace. The least reflection must convince every candid mind that both these cases are totally far into his purpose. Massachusetts raised a body of troop for six months at the expiration of which they were to disband, of course. This looks very little like a standing army. But beside, was that common wealth in a state of peace at the time? So far from it that they were in the most violent commotions and contents and their legislature had formally declared that an unnatural rebellion existed within this state. The situation of Pennsylvania was similar. A number of armed men had levied war against the authority of the state and openly avowed their intention of withdrawing their allegiance from it. To what purposes examples are brought of states raising troops for short periods in times of war or insurrections on a question concerning the propriety of keeping up standing armies of peace the public must judge. It is farther said that no danger can arise from this power being lodged in the hands of the general government because the legislatures will be a check upon them to prevent their abusing it. This is offered as what force there is in it will hereafter receive a more particular examination. At present I shall only remark that it is difficult to conceive how the state legislatures can in any case hold a check over the general legislature in a constitutional way. The latter has in every instance to which the powers extend complete control over the former. The state legislatures can in no case by law, resolution or otherwise of right prevent or impede the general government from enacting any law or executing it which this constitution authorizes them to enact or execute. If then the state legislatures check the general legislatures it must be by exciting the people to resist constitutional laws. In this way every individual or every body of men may check any government in proportion to the influence they may have over the body of the people. But such kinds of checks is these though they sometimes correct the abuses of government often or destroy all government. It is further said that no danger is to be apprehended from the exercise of this power because it is lodged in the hands of representatives of the people. If they abuse it, it is in the power of the people to remove them and choose others who are pursuing their interests. Not to repeat what has been said before, that it is unwise in any people to authorize their rulers to do what if done would prove injurious. I have in some former numbers shown that the representation in the proposed government will be a mere shadow without the substance. I am so confident that I am well founded in this opinion that I am persuaded that if it was to be adopted or rejected upon fair discussion of its merits without taking into contemplation circumstances extraneous to it as reasons for its adoption nineteen-twentieths of the sensible men in the union were rejected on this account alone, unless its powers were confined to much fewer objects than it embraces. Brutus and Anti-Federalist Papers Section 30 Brutus Letter 10 This is a LibriVox recording All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org The Anti-Federalist Papers Anti-Federalist Papers Section 31 Brutus Letter 11 Read by M. L. Cohen Believe in Ohio 2007 31 January 1788 The nature and extent of the judicial power of the United States proposed to be granted by this Constitution claims our particular attention. Much has been said and written upon the subject of this new system on both sides but I have not met with any writer who has discussed the judicial powers with any degree of accuracy. And yet it is obvious that we conform but very imperfect ideas of the manner in which this government will work or the effect it will have in changing the internal police and mode of distributing justice at present subsisting in the respective states without a thorough investigation of the powers of judiciary and of the manner in which they will operate. This government is a complete system not only for making but for executing laws and the courts of law which will be constituted by it are not only to decide about the Constitution and the laws made in pursuance of it but by officers subordinate to them to execute all their decisions. The real effect of this system of government will therefore be brought home to the feelings of the people through the medium of the judicial power. It is moreover of great importance to examine with care the nature and extent of the judicial power because those are to be vested with it are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent both of the people and the legislature both with respect to their officers and salaries. No errors they may commit can be corrected by any power above them if any such powers there be nor can they be removed from office for making ever so many erroneous adjudications. The only causes for which they can be displaced is conviction of treason, bribery and high crimes and misdemeanors. This part of the plan is so modeled as to authorize the courts not only to carry into execution the powers expressly given but where these are wanting or ambiguously expressed to supply what is wanting by their own decisions that we may be enabled to form a just opinion on this subject I shall, in considering it first examine the nature and extent of the judicial powers and second inquire whether the courts or to exercise them are so constituted as to afford reasonable ground of confidence that they will exercise them for the general good with regard to the nature and extent of the judicial powers I have to regret my want of capacity to give that full and minute explanation of them that the subject merits to be able to do this a man should be possessed of a degree of law knowledge far beyond what I pretend to a number of hard words and technical phrases are used in this part of the system about the meaning of which gentlemen learned it in the law differ its advocates know how to avail themselves of these phrases in a number of instances where objections are made to the powers given to the judicial they give such an explanation to technical terms as to avoid them though I am not confident to give a perfect explanation of the powers granted this department of government I shall yet attempt to trace some of the leading features of it from which I presume it will appear that they will operate to a total subversion of the state judiciary if not to the legislative authority of the states in article third section second it is said the judicial power shall extend to all cases in law and equity arising under this constitution the laws of the united states and treaties made or which shall be made under their authority etc. the first article to which this power extends is all cases in law and equity arising under this constitution what latitude of construction this clause should receive it is not easy to say at first few one would suppose that it meant no more than this that the courts under the general government should exercise not only the power of courts of law but also that of courts of equity and the manner in which those powers are usually exercised in the different states but this cannot be the meaning because the next clause authorizes the courts to take cognizance of all cases in law and equity arising under the laws of the united states this last article I concede conveys as much power to the general judicial as any of the state courts possess the cases arising under the constitution must include such as bring into question this meaning and will require an explanation of the nature and extent of the powers of the different departments under it this article therefore vests to judicial with the power to resolve all questions that may arise on any case on the construction of the constitution either in law or in equity first they are authorized to determine all questions that may arise upon the meaning of the constitution and law this article vests the courts with the authority to give the constitution a legal construction or to explain it according to the rules laid down for construing a law these rules give a certain degree of latitude of explanation according to this mode of construction the courts are to give such meaning to the constitution as comports best with the common and generally see the acceptation of the words in which it is expressed regarding their ordinary and popular use rather than their grammatical propriety where words are dubious they will be explained by the context the end of the clause will be attended to and the words will be understood as having a view to it and the words will not be so understood as to bear no meaning or a very absurd one second the judicial are not only to decide questions arising upon the meaning of the constitution and law but also in equity by this they are empowered to explain the constitution according to the reasoning spirit of it without being confined to the words letter from this method of interpreting laws by the reason of them arises what we call equity which is thus defined by Grosius the correction of that we are in the law by reason of its universality is deficient for since in all laws all cases cannot be foreseen or expressed it is necessary that when the decrees of the law cannot be applied to particular cases there should be some the power vested of defining those circumstances which had they been foreseen the legislator would have expressed and these are the cases which according to Grosius quote the same learned author observes quote that equity thus depending essentially upon each individual case there can be no established rules and fixed principle of equity laid down destroying its very essence and reducing it to a positive law end quote from these remarks the authority and business of the courts of law under this clause may be understood they will give the sense of every article of the constitution that may from time to time come before them and in their decisions they will not confine themselves to any fixed or established rules but will determine according to what happens to them the reason and spirit of the constitution the opinions of the supreme court whatever they may be will have the force of law because there is no power provided in the constitution that can correct their errors or control their adjudications from this court there is no appeal and I conceived the legislature themselves cannot set aside a judgment of this court because they are authorized by the constitution to decide in the last resort the legislature must be controlled by the constitution and not the constitution by them they have therefore no more right to set aside any judgment pronounced upon the construction of the constitution then they have to take from the president the chief command of the army and navy and commit it to some other person the reason is plain the judicial and the executive derive their authority from the same source that the legislature do theirs and therefore in all cases where the constitution does not make the one responsible to or controllable by the other they are altogether independent of each other the judicial power will operate to effect in the most certain but yet silent and imperceptible manner what is evidently the tendency of the constitution I mean an entire subversion of the legislation and judicial powers of the individual states every adjudication of the supreme court on any question that may arise upon the nature and extent of the general government will affect the limits of the state jurisdiction in proportion as the former enlarge the exercise of their powers will that of the latter be restricted that the judicial power of the united states will lean strongly in favor of the general government and will give such an explanation to the constitution as will favor an extension of its jurisdiction is very evident from a variety of considerations first the constitution itself strongly countens as such a mode of construction most of the articles in the system which convey powers of any considerable importance are conceived in general and indefinite terms which are either equivocal ambiguous or which require long definitions to unfold the extent of their meaning the two most important powers committed to any government those of raising money and of raising and keeping up troops have already been considered and shown to be unlimited by anything but the discretion of the legislature the clause was vest the power of the past all laws which are proper and necessary to carry the powers given into execution it has been shown leaves the legislature at liberty to do everything which in their judgment is best it is said I know that this clause confers no power on the legislature which they would not have had without it though I believe this is not the fact yet admitting it to be it implies that the constitution is not to receive an explanation strictly according to its letter but more power is implied than is expressed and this clause if it is to be considered as explanatory whether the power is given rather than giving a new power is to be understood as declaring that in constructing any of the articles conveying power the spirit and intent and design of the clause should be attended to as well as the words in their common acceptation the constitution gives sufficient color for adopting an equitable construction if we consider the great end in design it professedly has in view these appear from its preamble to be to form a more perfect union establish justice ensure domestic tranquility provide for the common defense promote the general welfare and secure the blessings of liberty to ourselves and posterity the design of this system is here expressed and it is proper to give such meaning to the various parts as will best promote the accomplishment of the end this idea suggests itself naturally upon reading the preamble mountains the court in giving the several articles such a sense as will the most effectively promote the ends of the constitution has in view how this manner of explaining the constitution will operate in practice shall be the subject of future inquiry second not only will the constitution justify the courts and inclining to this mode of explaining it but they will be interested in using this latitude of interpretation every body of men invested with office are tenacious of power they feel interested and hence it has become a kind of maximum to hand down their offices with all its rights and privileges unimpaired to their successors the same principle will influence them to extend their power and increase their rights this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done as will enlarge the sphere of their own authority every extension the power of the general legislature as well as the judicial powers will increase the powers of the courts and the dignity and important of the judges will be in proportion to the extent and magnitude of the powers they exercise I add it is highly probable that the emolument of the judges will be increased with the increase of the business they will have to transact and its importance for these considerations the judges will be interested to extend the powers of the courts and to construe the constitution as much as possible in such a way as to favor it and that they will do that appears probable third because they will have precedent to plead to justify them in it it is well known that the courts of England have by their own authority extended their jurisdiction far beyond the limits set them in their original institution and by the laws of the land the court of vix-checker is a remarkable instance of this it was originally intended principally to recover the king's debts and to order the revenues of the crown it had a common law jurisdiction which was established merely for the benefit of the king's accountants we learned from Blackstone that the proceedings in this course are grounded on a writ called quo minus in which a plaintiff suggests that he is the king's farmer or debtor and the defendant had done him the damage complained of by which he is less able to pay the king these suits by the statute of Rutland are expressly directed to be confined to such matters especially concerning the king or his ministers in the exchequer and by the articularis supercardus it is enacted that no common please be then forthheld in the exchequer contrary to the form of the great charter but now any person may sue in the exchequer the surmise of being debtor to the king being matter of form and mere words of course and the court is open to all the nation when the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of legislature is it not to be expected that they will extend theirs especially when there is nothing in a constitution expressly against it and they are authorized to construe its meaning and are not under any control this power in the judicial will enable them to mold the government into almost any shape they please the manner in which this may be affected we will hear after examine Brutus and anti-fragilist papers section 31 Brutus letter 11 this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org anti-fragilist papers section 32 Brutus letter 12 read by ML Cohen Cleveland, Ohio, May 2007 7 February 1788 in my last I showed that the judicial power of the United States under the first clause of the second section of article 8 would be authorized to explain the constitution not only according to its letter but according to its spirit and intention and having this power they would strongly incline to give it such a construction as to extend the powers of the general government as much as possible to the diminution and finally to the destruction of that of the respective states I shall now proceed to show how this power will operate in its exercise to affect these purposes in order to perceive the extent of its influence I shall consider first how it will tend to extend the legislative authority second in what manner it will increase the jurisdiction of the courts and third the way in which it will diminish and destroy both the legislative and judicial authority of the United States first let us inquire how the judicial power will affect an extension of the legislative authority perhaps judicial power will not be able by direct and positive decrees ever to direct the legislature because it is not easy to conceive how a question can be brought before them in a course of legal discussion in which they can give a decision declaring that the legislature have certain powers which they have not exercised in which in consequence of the determination of the judges they will be bound to exercise but it is easy to see that in their adjudications they may establish certain principles which being received by the legislature will enlarge the sphere of their power beyond all bounds it is to be observed that the supreme court has the power in the last resort to determine all questions that may arise in the course of legal discussion on the meaning and construction of the constitution this power they will hold under the constitution and independent of the legislature the latter can no more deprive the former of this right then either of them or both of them together can take from the president with the advice of the senate the power of making treaties or appointing ambassadors in determining these questions the court must and will assume certain principles from which they will reason informing their decisions these principles whatever they may be when they become fixed by a course of decisions will be adopted by the legislature and will be ruled by which they will explain their own powers this appears evident from this consideration that if the legislature pass laws which in the judgment of the court they are not authorized to do by the constitution the court will not take notice of them for it will not be denied that the constitution is the highest or supreme law and the courts are vested with the supreme and uncontrollable power to determine in all cases that come before them what the constitution means they cannot therefore execute a law which in their judgment opposes the constitution unless we can suppose they can make a superior law give way to an inferior the legislature therefore will not go over the limits by which the courts may judge they are confined and there is little room to doubt but they will come up to those bounds as often as occasion an opportunity may offer and they may judge it proper to do it for as on the one hand they will not readily pass laws which they know the courts will not execute so on the other they will not be sure they will not scruple to pass such as they know they will give effect as often as they may judge it proper from these observations it appears that the judgment of the judicial on the constitution will become the rule to guide the legislature in their construction of their powers what the principles are which the courts will adopt it is impossible for us to say but taking up the powers as I have explained them in my last number it is difficult to see that they may and probably will be very liberal ones we have seen that they will be authorized to give the constitution a construction according to its spirit and reason and not to confine themselves to its letter to discover the spirit of the constitution it is of first importance to attend to the principle ends and designs it has in view these are expressed in the preamble in the following words that is we the people of the united states in order to form a more perfect union establish justice ensure domestic tranquility provide for the common defense promote the general welfare and secure the blessings of liberty to ourselves and our posterity do ordain and establish this constitution end quote etc if the end of the government is to be learned from these words which are clearly designed to declare it it is obvious that it has in view every object which is embraced by any government the preservation of internal peace the due administration of justice and to provide for the defense of the community seem to include all the objects of government but if they do not they are certainly comprehended in the words quote to provide for the general welfare end quote if it be further considered that this constitution if it is ratified will not be a compact entered into by states in their corporate capacities but an agreement of the people of the united states as one great body politic no doubt can remain but that the great end of the constitution if it is to be collected from the preamble in which its ends is declared is to constitute a government which is to extend to every case for which any government is instituted whether external or internal the courts therefore will establish this as a principle in expounding the constitution and will give every part of it such an explanation as will give latitude to every department under it to take cognizance of every matter not only that affects the general national concerns of the union but also of such as relate to the administration of private justice and to regulate the internal and local affairs of the different parts such a rule of exposition is not only consistent with the general spirit of the preamble but it will stand confirmed by considering more minutely the different clauses of it the first object declared to be in view is quote to form a perfect union end quote it is to be observed and it is not a union of the states or bodies corporate had this been the case the existence of the state governments might have been secured but it is a union of the people of the united states considered as one body as adopted now to make a union of this kind perfect it is necessary to abolish all inferior governments and to give the general one complete legislative, executive and judicial powers to every purpose the courts therefore will establish it as a rule in explaining the constitution to give it such construction as will best tend to perfect the union or take from the state governments every power of either making or executing laws the second object is quote to establish justice end quote this must include not only the idea of instituting the rule of justice or making laws which shall be the measure of rule of right but also of providing for the application of this rule or of administering justice under it and under this the courts will in their decisions extend the power of the government to all cases they possibly can or otherwise they will be restricted in doing what appears to the constitution they should do to it pass laws and provide for the execution of them for the general distribution of justice between man and man another in declare it is quote to ensure domestic tranquility end quote this comprehends a provision against all private breaches of the peace as well as against all public motions or general insurrections and to attain the object of this clause fully the government must exercise the power of passing laws on these subjects as well as appointing magistrates with authority to execute them and the courts will adopt these idea in their exposition I might proceed to the other clause in the preamble and it would appear by consideration of all of them separately as it does and taking them together that if the spirit of this system is to be known from its declared end in design in the preamble its spirit is to subvert and abolish all powers of the state and to embrace every object which any government extends as it sets out in the preamble with this declared intention so it proceeds in the different parts of the same idea any person who will peruse the 8th section with attention in which most of the powers are enumerated will perceive that they either expressly or by implication extend to almost everything about which any legislative power can be employed but if this equitable mode of construction is applied to this part of the Constitution nothing can stand before it this will certainly give the first clause in that article of construction which I confess I think the most natural and grammatical one to authorize Congress to do anything which in their judgment will tend to provide for the general welfare and this amounts to the same thing as general and unlimited power of legislation in all cases to be continued 14 February 1788 continued from last Thursday's paper this same manner of explaining the Constitution will fix a meaning in a very important one too to the 18th clause of the same section which authorizes Congress to make laws which shall be proper and necessary for carrying into effect the foregoing powers etc of luminous writer in favor of this system has taken great pain to convince the public that this clause means nothing for that the same powers expressed in this are implied in other parts of the Constitution perhaps it is so but still this will undoubtedly be an excellent auxiliary to assist the courts to discover the spirit and reason of the Constitution and when applied to any and every other clause is granting power will operate powerfully in extracting the spirit from them I might instance a number of clauses in the Constitution which have explained in an equitable manner would extend the powers of the government to every case and reduce the state legislatures to nothing but I should draw my remarks to an undue length and I presume enough has been said to show that the courts have sufficient ground in the exercise of this power to determine that the legislature have no bounds set to them by this Constitution by any supposed right of the legislatures of the representatives states may have their local concerns I proceed second to inquire in what manner this power will increase the jurisdiction of the courts I would here observe that your judicial power extends expressly to all civil cases that may arise saved such as between citizens of the same state with this exception to those of that description that your judicial of the United States have cognizance of cases between citizens of the same state claiming land under grants of different states nothing more therefore is necessary to give the courts of law under this Constitution complete jurisdiction of all civil causes but to comprehend cases between citizens of the same state not included in the foregoing exception I presume there will be no difficulty in accomplishing this nothing more is necessary than to set forth in the process that the party who brings the suit is a citizen of a different state from the one against whom the suit be broad little doubt but the court will take cognizance of the matter and if they do who is to restrain them indeed I will freely confess that it is my decided opinion that the courts ought to take cognizance of such causes under the powers of the Constitution for one of the great ends of the Constitution is quote to establish justice end quote this supposes that this cannot be done under the existing governments of the states and there is certainly as good reason why individuals living in the same state should have justice as those who live in different states moreover the Constitution expressly declares that quote the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states it will therefore be no fiction for a citizen of one state to set forth in a suit that he is a citizen of another for he that is entitled to all the privileges and immunities of a country a citizen of that country and in truth the citizen of one state will under this Constitution be a citizen of every state but supposing that the party who alleges that he is a citizen of another state has recourse to fiction in bringing in a suit it is well known that the courts have high authority to plead to justify them in suffering actions to be brought before them by such fictions in my last number I stated that the court of Exchequer tried all cases to hurt you of such a fiction the court of Kings, Bench and England extended their jurisdiction in the same way originally this court held pleas in civil cases only of trespass and other injuries alleged to be committed the at armist they might likewise says Blackstone upon the division of the Aula Regia have originally held pleas of any other civil action whatsoever brands except in real actions and have very seldom in use closed brands provided the defendant was an officer of the court or in the custody of the marshal or prison keeping it under the court for breach of the peace etc in process of time by a fiction this court began to hold pleas of any personal action whatsoever it being surmised that the defendant has been arrested for supposed trespass that quote he has never committed and being thus in the custody of the marshal of the court the plaintive is at liberty to proceed against him for any other personal injury which surmise of being in the marshal's custody the defendant is not at liberty to dispute end quote by a much less fiction made the pleas of the courts of the united states extend the cases between citizens of the same state I shall add no more on this head but proceed briefly to remark in what way this power will diminish and destroy both the legislative and judicial authority of the states it is obvious that these courts will have authority to decide upon the validity of the laws of any of the states in all cases where they come in question before them where the constitution gives the general government exclusive jurisdiction they will adjudge all laws made by the states in such cases void ab initio where the constitution gives them concurrent jurisdiction the laws of the united states must prevail because they are the supreme law in such cases therefore the law of the state legislatures must be repealed restricted or so construed as to give full effect to the laws of the union on the same subject from these remarks it is easy to see that in proportion as the general government acquires power and jurisdiction by the liberal construction which the judges may give to the constitution will those of the states lose its rights until they become so trifling and unimportant as not to be worth having I am much mistaken if this system will not operate to effect this with as much solidarity as those who have the administration of it will think prudent to suffer it the remaining objections to the judicial power shall be considered in a future paper Brutus End of Anti-Federalist Papers Section 32 Brutus Letter 12 Anti-Federalist Papers Letter 13 This is of LibriVox Recording All LibriVox Recordings are in the public domain For more information or to volunteer please visit LibriVox.org Read by M.L. Cohen Cleveland, Ohio May 2007 21 February 1788 Having in the two preceding numbers examined the nature and tendency of the judicial power as it respects the explanation of the constitution I now proceed to the consideration of the other matters of which it has cognizance The next paragraph extends its authority to all cases in law and equity arising under the laws of the United States This power, as I understand it, is a proper one The proper province of the judicial power in any government is, as I conceive to declare what is the law of the land to explain and enforce those laws which is the supreme power a legislature may pass but not to declare what the powers of the legislature are I suppose the cases in equity under the laws must be so construed as to give the Supreme Court not only a legal but equitable jurisdiction of cases which may be brought before them or in other words, so, as to give them not only the powers which are now exercised by our courts of law but those also which are now exercised by our court of chancery If this be the meaning I have no other objection to the power from the undue extension of the legislative power For I conceive that the judicial powers should be commensurate with the legislative or in other words, the Supreme Court should have authority to determine questions arising under the laws of the union The next paragraph, which gives the power to decide that law and equity on all cases arising under treaties is unintelligible to me I can readily comprehend what is meant by deciding a case under a treaty For as treaties will be the law and every person who has rights or privileges secured by treaty will have aids of courts of law in recovering them But I do not understand what is meant by equity arising under a treaty I presume every right which can be claimed under a treaty must be claimed by virtue of some article or clause contained in it, which gives the right in plain and obvious words, or at least I conceive that the rules for explaining treaties are so well ascertained that there is no need of having recourse to inequitable construction under this power the courts are to explain treaties according to what they conceive or their spirit which is nothing less than a power given them whatever extension they may judge proper. It is the dangerous and improper power The cases affecting ambassadors, public ministers and consuls of admiralty and maritime jurisdiction Conservations to which the United States are a party and conservations between states, it is proper to be under the cognizance of the courts of the union because none but the general government or ought to pass laws on their subject but I conceive the clause which extends the power the judicial to controversy arising between a state and the citizens of another state improper in itself and will in its exercise prove most pernicious and destructive it is improper because it is subject to state to answer in a quarter of law to the suit of an individual this is humiliating degrading to a government and what I believe the supreme authority of no state ever submitted to the states are now subject to no such actions all contracts entered into by individuals with states were made upon the faith and credit of the states and the individuals never had in contemplation any compulsory mode of obliging the government to fulfill its engagements the evil consequences that will flow from the exercise of this power will best appear by tracing it in its operation the constitution does not direct the mode in which the judicial counsel commences against a state or the manner in which the judgment of the court shall be carried into execution but it gives the legislature full power to pass all laws which shall be proper and necessary for the purpose and they certainly must make provision for these purposes or otherwise the power of the judicial will be nukatory for to what purpose will the power of the judicial be if they have no mode in which they can call the parties before them or of what use will it be to call the parties to answer if after they have given judgment there is no authority to execute the judgment we must therefore conclude that the legislature will pass laws which will be effectual in this head an individual of one state will then have a legal remedy against the state for any demand he may have against the state to which he does not belong every state in the union is largely indebted to individuals for the payment of these debts they have been given notes payable to the bearer at least this is the case in this state whenever a citizen of another state becomes possessed of one of these notes he may commence an action in the supreme court of the general government and I cannot see any way in which it can be prevented from recovering it is easy to see that when this once happens the notes of the state will pass rapidly from the hands of the citizens of the state to those of other states and when the citizens of other states possess them they may bring suits against the state for them and by this mean judgments and executions may be obtained against the state for the whole amount of the state debt it is certain the state with the utmost exertions it can make will not be able to discharge the debt she owes under a considerable number of years perhaps with the best management it will require 20 or 30 years to discharge it this new system will protract the time in which the ability of the state will enable them to pay off their debt because all the funds of the state will be transferred to the general government except those which arise from internal taxes the situation of the states will be deplorable by this system they will surrender to the general government all the means of raising money and at the same time will subject themselves to suits at law for the recovery of the debts they have contracted in effecting the revolution the debts of the individual states will amount to a sum exceeding the domestic debt of the United States these will be left upon them with power in the judicial of the general government and a further payment while the general government will possess an exclusive command of the most productive funds from which the states can derive money and a command of every other source of revenue paramount to the authority of any state it may be said that the apprehension that the judicial power will operate in this manner is merely visionary for that the legislature will never pass laws that will work these effects or if they were disposed to do it they cannot provide for levying an execution on a state for where will the officer find property where unto levy to this I would reply if this is a power which will not or cannot be executed it was useless and unwise to grant it to the judicial for what purpose is a power given which it is imprudent or impossible to exercise if it be improper for a government to exercise a power it is improper but they should be vested with it and it is unwise to authorize a government to do what they cannot effect as to the idea that the legislature cannot provide for levying an execution on a state I believe it is not well founded I presume the last paragraph of the eighth section of article one gives the Congress express power to pass any laws they may judge proper and necessary for carrying into execution the power vested in the judicial department and they must exercise this power or otherwise the courts of justice will not be able to carry into effect the authorities with which they are invested for the Constitution does not direct the mode in which the courts are to proceed to bring parties before them to try causes or to carry the judgment of the courts into execution unless they are pointed out by law how are these to proceed in any of the cases of which they have cognizance they have the same authority to establish regulations in respect to these matters where a state is a party as where an individual is a party the only difficulty is on whom shall process be served when a state is a party and how shall execution be levied with regard to the first the way is easy either the executive or legislative of the state may be notified and upon proof being made of the services of the notice the court may proceed to a hearing of the cause execution may be levied on any property of the state either real or personal the treasury may be seized by the officers of the general government or any lands the property of the state may be made to subject and seizure and sale to satisfy any judgment against it whether the state of any individual citizen may not be made answerable to for the discharge of judgments against the state may be worth consideration in some corporations this is the case if the power of the judicial under this clause will extend to the cases above stated it will have executed produced the utmost confusion and in its progress will crush the states beneath its weight and if it does not extend to these cases I confess myself utterly at a loss to give it any meaning for if the citizen of one state possessed of a written obligation given in pursuance of a solemn act of the legislature acknowledging a debt due to the bearer and promising to pay it cannot recover in the supreme court I can conceive of no case in which they can recover and it appears to me ridiculous to provide for obtaining judgment against the state without giving the means of levying execution and antifederalist paper section 33 antifederalist papers section 34 Brutus letter 14 this is LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org reading by ML Cohen Cleveland Ohio June 2007 28 February 1788 the second paragraph of section 2D article 3 is in these words quote in all cases affecting ambassadors other public ministers and councils and those in which a state shall be a party the supreme court shall have original jurisdiction in all other cases before mentioned the supreme court shall have appellate jurisdiction both as to law and fact with such exceptions or such regulations as the congress shall make end quote although it is proper that the courts of the general government should have cognizance of all matters affecting ambassadors, foreign ministers and councils yet I question much the propriety of giving the supreme court original jurisdiction in all cases of this kind ambassadors and other public ministers claim and are entitled by the law of nations to certain privileges and exemptions both for their persons and their servants the meanest servant of an ambassador is exempted by the law of nations from being sued for debt should a suit be bought against such a one by a citizen though inadvertency or want of information he will be subject to an action in the supreme court all the officers concerned in issuing or executing a process will be liable to like actions thus may a citizen of a state be compelled at great expense and inconvenience to defend himself against the suit brought against him in the supreme court for inadvertently commencing an action against the most meanest servant of an ambassador for a just debt the appellate jurisdiction granted to the supreme court in this paragraph has justly been considered as one of the most objectionable parts of the constitution under this power appeals may be had from the inferior courts to the supreme in every case to which the judicial power extends except in the few instances in which the supreme court will have original jurisdiction by this article appeals will lie to the supreme court in all criminal as well as civil causes this I know has been disputed by some but I presume the point will appear clear to anyone who will attend to the connection of this paragraph with the one that precedes it in the former all the cases to which the power of the judicial shall extend whether civil or criminal are enumerated there is no criminal matter to which the judicial power of the United States will extend but such as are included under some one of the cases specified in this section for this section is intended to define all the cases of every description to which the power of the judicial shall reach but in all these cases it is declared the supreme court will have appellate jurisdiction except in those which affect ambassadors other public ministers and councils and those in which the state shall be a party if then this section extends the power of the judicial to criminal cases it allows appeals in such cases if the power of the judicial is not extended to criminal matters by this section I ask by what part of the system does it appear that they have any cognizance of them I believe it is a new and unusual thing to allow appeals in criminal matters it is contrary to the sense of our laws and dangerous to the lives and liberties of the citizens as our law now stands a person charged with a crime has a right to a fair and impartial trial by jury of his country and the verdict is final if he is acquitted no other court can call upon him to answer for the same crime but by this system a man may have had ever so fair a trial have been acquitted by ever so respectable a jury of his country and still the officer of the government who prosecutes may appeal to the supreme court may have a second hearing by this means persons who may have disobliged those who execute the general government may be subjected to intolerable oppression they may be kept in long and ruinous confinement and exposed to heavy and insupportable charges to procure the attendance of witnesses and provide the means of their defense at a great distance from their places of residence I can scarcely believe that there can be a considerate citizen of the United States that will approve of this appellate jurisdiction extending to criminal cases if they will give themselves time for reflection whether the appellate jurisdiction as a respect civil matters will not prove injurious to the rights of citizens and destructive of those privileges which have ever been held sacred by Americans and whether it will not render the administration of justice intolerably burdensome intricate and dilatory will best appear when we have considered the nature and operation of this power it has been the fate of this clause as it has of most of those against which parentsable objections have been offered to be explained in different ways by the advocates and opponents of the Constitution I confess I do not know what the advocates of the system would make it mean for I have not been fortunate enough to see in any publication this clause taken up considered it is certain however they do not admit the explanation which those who oppose the Constitution give it or otherwise they would not so frequently charge them with want of candor for alleging that it takes away the trial by jury appeals from an inferior to a superior court as practice in the civil law courts are well understood in these courts the judges determine both on the law and the fact and appeals are allowed from the inferior to the superior courts on the whole merits the superior tribunal will re-examine all the facts as well as the law and frequently new facts will be introduced so as many times to render the cause in the court of appeals very different from what it was in the court below if the appellate jurisdiction of the Supreme Court be understood in the above sense the term is perfectly intelligible the meaning then is that in all civil causes enumerated the Supreme Court shall have authority to re-examine the whole merits of the case both with respect to the facts and the law which may arise under it without the intervention of a jury that this is the sense of the part of the system appeared to be clear the express words of it in all the other cases before mentioned the Supreme Court shall have appellate jurisdiction both as to law and fact etc who are the Supreme Court does it not consist of the judges and they are to have the same jurisdiction of the fact as they are to have of the law they will therefore have the same authority to determine the fact as they will have to determine the law and no room is left for a jury on appeals to the Supreme Court if we understand the appellate jurisdiction in any other way we should be left utterly at a loss to give it a meaning the common law is a stranger to any such jurisdiction no appeals can lie from any of our common law courts upon the merits of the case the only way in which they can go up from an inferior to a superior tribunal is by habeas corpus before hearing or by satiriari or writ of error or after they are determined in the subordinate courts but in no case where they are carried up are the facts reexamined but they are always taken as established in the inferior courts continued 6th March 1788 it may still be insisted that this clause does not take away the trial by jury on appeals but that this may be provided for by the legislature under that paragraph with authorizes them to form regulations for the court in the exercise of this power the natural meaning of this paragraph seems to be no more than this that congress may declare that certain cases shall not be subject to the appellate jurisdiction and they may point out the mode in which the court shall proceed in bringing up the causes before them the manner of their taking evidence to establish the facts and the methods of the courts proceeding but I presume they cannot take from the court the right of deciding on the fact and they can deprive them of the right of determining on the law when it causes once before them for they have the same jurisdiction as the fact as they have as to law but supposing the congress may under this clause establish the trial by jury on appeals it does not seem to me that it will render this article much less exceptional an appeal from one court and jury to another court and jury is a thing altogether unknown in the laws of our state and in most of the states in the union a practice of this kind prevails in the eastern states actions are there commenced in the inferior courts and an appeal lies from them on the whole merits to the superior courts the consequence is well known very few actions are determined in the lower courts it is rare that a case of any importance is not carried by appeal to the supreme court and the jurisdiction of the inferior courts is merely nominal this proves so burdensome to the people in massachusetts there was one of the principal causes which excited the insurrection in that state in the year past very few sensible and moderate men in that state but what will admit that the inferior courts are almost entirely useless and answered very little purpose save only to accumulate costs against the poor debtors who are already unable to pay their just debts but the operation of the appellate power in the supreme judicial of the united states would work infinitely more mischief than any such power can do in a single state the trouble and expense to the parties would be endless and intolerable no man can say where the supreme court are to hold their sessions the presumption is however that it must be at the seat of the general government in this case parties must travel many hundred miles with their witnesses and lawyers to prosecute or defend a suit no man of middling fortune can sustain the expense of such a lawsuit and therefore the poor and middling classes and citizens will be under the necessity of submitting the demands of the rich and the lordly in cases that will come under the cognizance of this court if it be said that to prevent this oppression the supreme court will set in different parts of the union it may be replied that this would only make the oppression somewhat more tolerable but by no means so much as to give a chance to the justice to the poor and middling classes it is utterly impossible that the supreme court can move into so many different parts of the union as to make it convenient or even tolerable for them with witnesses to try causes from every part of the united states if to avoid the expense and inconvenience of calling witnesses from great distance to give evidence before the supreme court the expedient of taking the deposition of witnesses and writing should be adopted it would not help the matter it is of great importance in the distribution of justice that witnesses should be examined face to face that the parties should have the fairest opportunity of cross examining them in order to bring out the whole truth there is something in the manner in which witness delivers his testimony which cannot be committed to paper and which yet very frequently gives a complexion to his evidence very different from what it would bear if committed to writing besides the experience of taking written testimony would be enormous those who are acquainted with the costs that arise in the courts where all the evidence is taken in writing well known that they exceed beyond all comparison those of the common law courts the cost accruing in courts generally advance with the great of the court thus the charges attending to a suit in our common pleas is much less than those in the supreme court and these are much lower than those in the court of chancery indeed the cost in the last mention court are in many cases so exorbitant and the proceeding so dilatory that the suitor has almost well given up his demand as to prosecute his suit we have just reason to suppose that the cost in the supreme general court will exceed either of our courts the officers of the general court will be more dignified than those of the states the lawyers of the most ability will practice in them and the trouble and expense of attending them will be greater from all these considerations it appears that the expense attending suits in the supreme court will be so great as to put it out of the power of the poor and middling classes of citizens to contest a suit in it from these remarks it appears that the administration of justice under the powers of the judicial will be dilatory that it will be attended with such a heavy expense as to amount to little short of a denial of justice to the poor and middling class of people who in every government stand most in need of the protection of the law and that a trial by jury which has so justly been the boast of our forefathers as well as ourselves is taken away under them these extraordinary powers in this court are the more objectionable because there does not appear the least necessity for them in order to secure a due and impartial distribution of justice the want of ability or integrity or disposition to render justice to every suitor has not been objected against the courts of the respective states so far as I have been informed the courts of justice in all the states have ever been found ready to administer justice were prompted to impartiality according to the laws of the land it is true in some of the states paper money has been made to authorize the discharge of debts with it at a depreciated value in others tender laws have been passed obliging the creditor to receive on execution other property than money in discharge of his demand and in several other stated laws have been made unfavorable to the creditor intending to render property insecure but these evils have not happened for any defect in the judicial departments of the states the courts indeed are bound to take notice of these laws and so will the courts be under obligation to observe the laws made by the general legislature not repunting to the constitution but so far have the judicial been from giving undue latitude of construction to the laws of this kind that they have invariably strongly inclined to the other side all the acts of our legislature which have been charged with being of this complexion have uniformly received the strict construction by the judges and have been extended to no cases but the such as came within the first letter of the law in this way have our courts I will not say evaded the law but so limited in its operation as to work the least possible injustice the same thing has taken place in Rhode Island which has just rendered herself infamous by her tenaciously adhering to her paper money system the judges there gave a decision in opposition to the words of the statute on this principle that a construction according to the words of it would contradict the fundamental maxim constitution no pretext therefore can be formed from the conduct of judicial courts which will justify giving such powers to the supreme general court for their decisions have been such as to give just ground of confidence in them that they will firmly adhere to the principles of rectitude and there is no necessity of lodging these powers in the courts in order to guard against the evils just like complained of on the subject of security of property under this constitution for it has provided that no state shall admit bills of credit or make anything but gold and silver coin a tender for payment of debts end quote it is also declared that quote no state shall pass any law impairing the obligation of contracts end quote these prohibitions give the most perfect security against those attacks upon property which I am sorry to say some of the states have but too wantingly made by passing laws sanctioning fraud and the debtor against his creditor end quote this constitution will be the supreme law of the land and the judges in every state will be bound thereby anything in the constitution and laws of any state to the contrary notwithstanding the courts of the respective states might therefore have been securely trusted with deciding all cases between man and man whether citizens of the same state or of different states or between foreigners and citizens and indeed for ought I see every case under the constitution or laws of the United States ought in the first instance be tried in the court of the state except those which might arise between states such as respect ambassadors or other public ministers and perhaps such as call and question the claim of land under grants from different states the state courts would be under sufficient control if Ritz-Avera were allowed from the state courts to the supreme court of the union according to the practice of the courts in England and of this state on all cases in which the laws of the union are concerned and perhaps all cases in which a foreigner is a party this method would preserve the good old way of administering justice would bring justice to every man's door and preserve the inesimal right of trial by jury it would be following as near as the circumstances will admit to the practice of the courts in England which is almost the only thing I would wish to copy in their government but as this system now stands there is to be as many inferior courts as Congress may seem fit to a point who are to be authorized to originate and in the first instance to try all the cases falling under the description of this article there is no security that a tribe by jury shall be had in these courts but the trial here will soon become as it is in Massachusetts inferior courts mere matter of form for an appeal may be had to the supreme court on the whole merits this court is to have power to determine in law and in equity on the law and the fact and this court is exalted above all other power in the government subject to no control and so fixed as not to be removable but upon impeachment which I shall hereafter show as much the same thing as not to be removable at all to obviate the objections made to judicial power it has been said that Congress informing the regulations and exceptions which they are authorized to make respecting the applet jurisdiction will make provision against all the evils which are apprehended from this article on this I would remark that this way of answering the objection made to that power implies an admission that the power is in itself improper without restraint and if so why not restrict it in the first instance the just way of investigating any power given to a government is to examine its operation supposing it be put in exercise if upon inquiry it appears the power of exercise would be prejudicial it ought not to be given for to answer objections made to a power given to a government by saying it will never be exercised is really admitting that the power ought not to be exercised and therefore ought not to be granted Brutus and antifederalist papers section 34 Brutus letter 14