 This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Robert Scott. The Federalist Papers Federalist No. 83 Alexander Hamilton Federalist No. 83 The Judiciary Continued in Relation to Trial by Jury from McLean's Edition, New York Wednesday, May 28, 1788. Hamilton To the people of the state of New York, the objection to the plan of the convention which has met with most success in this state, and perhaps in several of the other states, is that relative to the want of a constitutional provision for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the constitution in regard to civil causes is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal. Extending not only to every species of civil, but even to criminal causes. To argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the existence of matter. Or to demonstrate any of those propositions which, by their own internal evidence, forced conviction when expressed in language adapted to convey their meaning. With regard to civil cases subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only not provided for is entirely abolished. Every man of discernment must at once perceive the wide difference between silence and abolition. But as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken. The maxims on which they rely are of this nature, quote, a specification of particulars is an exclusion of generals, end quote. Or, quote, the expression of the thing is the exclusion of another, end quote. Hence, say they, as the Constitution has established the trial by jury in criminal cases and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter. The rules of legal interpretation are rules of common sense adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries is a privation of its right to authorize or permit that mode of trial in any other case. Is it natural to suppose that a command to do one thing is a prohibition to the doing of another which there is a previous power to do and which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others. A power to constitute courts is a power to prescribe the mode of trial and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty to either adopt that institution or to let it alone. This discretion in regard to criminal causes is abridged by the express injunction of trial by jury in all such cases, but it is, of course, left at large in relation to civil causes. There being a total silence on this head, the specification of an obligation to try all criminal causes in a particular mode excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge the power of the legislature to exercise that mode if it should be thought proper. The pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries is a pretense destitute of all just foundation. From these observations this conclusion results that the trial by jury in civil cases would not be abolished and that the use attempted to be made of the maxims which have been quoted is contrary to reason and common sense and therefore not admissible. Even if these maxims had a precise technical sense corresponding with the idea of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. In relation to a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction. Having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. This will be best done by examples. The plan of the convention declares that the power of Congress or, in other words, of the national legislature should extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority because an affirmative grant of special powers would be absurd, as well as useless if a general authority was intended. In like manner the judicial authority of the federal judicatures is declared by the constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nougatory if it did not exclude all ideas of more extensive authority. These examples are sufficient to elucidate the maxims which have been mentioned and to designate the manner in which they should be used, but that there may be no misapprehensions upon this subject. I shall add one case more to demonstrate the proper use of these maxims and the abuse which has been made of them. Let us suppose that by the laws of this state a married woman was incapable of conveying her estate, and that the legislature, considering this an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. In such a case there can be no doubt but this specification would amount to an exclusion of any other mode of conveyance, because the woman having no previous power to alienate her property. The specification determines the particular mode which she is for that purpose to avail herself of. But let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinant value without the consent of three of her nearest relations. Signified by their signing the deed, could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of an inferior value? The position is too absurd to merit a refutation, and yet this is precisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in a case of a criminal nature. From these observations it must appear unquestionably true that trial by jury is in no case abolished by the proposed constitution, and it is equally true that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the state constitutions, and it will be in no degree altered or influenced by the adoption of the plan under consideration. The foundation of this assertion is that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the state courts only in the manner which the state constitutions and laws prescribe. All land causes except where claims under the grants of different states come into question, and all other controversies between the citizens of the same state unless where they depend upon positive violations of the Articles of the Union by acts of the state legislatures will be long exclusively to the jurisdictions of the state tribunals. Add to this that admirality causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury, and the inference from the whole will be that this institution as it exists with us at present cannot possibly be affected to any great extent by the proposed alteration in our system of government. The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury. Or if there is any difference between them, it consists in this, the former regarded as a valuable safeguard to liberty, the latter represented as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation. And it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic. Or how much more merit it may be entitled to as a defense against the oppressions of a hereditary monarch than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution and of its friendly aspect to liberty. But I must acknowledge that I cannot readily discern the inseparable connection between the existence of liberty and the trial by jury in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions have ever appeared to me to be the great engines of judicial despotism. And these have all relation to criminal proceedings. The trial by jury in criminal cases aided by the habeas corpus act seems therefore to be alone concerned in the question. And both of these are provided for in the most ample manner in the plan of the convention. It has been observed that trial by jury is a safeguard against an oppressive exercise of power of taxation. This observation deserves to be canvassed. It is evident that it can have no influence upon the legislature in regard to the amount of taxes to be laid, to the objects upon which they are to be imposed, or to the rule by which they are to be apportioned. If it can have any influence therefore it must be upon the mode of collection and the conduct of the officers entrusted with the execution of the revenue laws. As to the mode of collection in this state under our own constitution the trial by jury is in most cases out of use. The taxes are usually levied by the more summary proceedings of distress and sale. As in cases of rent it is acknowledged on all hands that this is essential to the efficacy of revenue laws. The dilatory course of a trial at law to recover the taxes imposed on individuals would neither suit the exigencies of the public nor promote the convenience of the citizens. It would often occasion an accumulation of costs more burdensome than the original sum of the tax to be levied. And as to the conduct of the officers of the revenue the provision in favor of trial by jury in criminal cases will afford the security aimed at willful abuses of public authority. To the oppression of the subject and every species of official extortion are offenses against the government for which the persons who commit them may be indicted and punished according to the circumstances of the case. The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is that it is a security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion. There is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. The force of this consideration is, however, diminished by others. The sheriff who is the summoner of ordinary juries and of the clerks of courts who have the nomination of special juries are themselves standing officers and acting individually. May be supposed more accessible to the touch of corruption than the judges who are a collective body. It is not difficult to see that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place it may fairly be supposed that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass than in gaining men who had been chosen by the government for their probity and good character. But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand it would be necessary to corrupt both court and jury. For where the jury have gone evidently wrong the court will generally grant a new trial and it would be in most cases of little use to practice upon the jury unless the court could be likewise gained. Here then is a double security and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions by increasing the obstacles to success. In this case it discourages attempts to seduce the integrity of either. The temptations to prostitution which the judges might have to surmount must certainly be much fewer while the cooperation of a jury is necessary. Then they might be if they had themselves the exclusive determination of all causes. Withstanding therefore the doubts I have expressed as to the essentiality of trial by jury in civil cases to liberty. I admit that it is in most cases under proper regulations an excellent method of determining questions of property and that on this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended. There is however in all cases great difficulty in this and men not blinded by enthusiasm must be sensible that in a federal government which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other. That difficulty must be not a little augmented. For my own part at every new view I take of the subject I become more convinced of the reality of the obstacles which we are authoritatively informed prevented the insertion of a provision on this head in the plan of the convention. The great difference between the limits of the trial in different states is not generally understood and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point and explanation of it is necessary. In this state our judicial establishments resemble more nearly than in any other those of Great Britain. We have courts of common law, courts of probates, note analogous in certain matters to the spiritual courts in England. A court of admirality, a court of chancery in the courts of common law only the trial by jury prevails and this with some exceptions. In all others a single judge presides and proceeds in general either according to the course of the canon or civil law without the aid of a jury. Footnote one at end of selection. In New Jersey there is a court of chancery which proceeds like ours but neither courts of admirality nor of probates in the sense in which these last are established with us. In that state the courts of common law have the cognizance of those causes which with us are determinable in the courts of admirality and of probates and of course the jury trial is more extensive in New Jersey than in New York. In Pennsylvania this is perhaps still more the case for there is no court of chancery in that state and its common law courts have equity jurisdiction. It has a court of admirality but none of probates at least on the plan of ours. Delaware has in these respects imitated Pennsylvania. Maryland approaches more nearly to New York as those also Virginia except that the latter has a plurality of chancellors. North Carolina bears most affinity to Pennsylvania. South Carolina to Virginia. I believe, however, that in some of those states which have distinct courts of admirality the causes depending in them are triable by juries. In Georgia there are none but common law courts and an appeal of courts lies from the verdict of one jury to another which is called a special jury and for which a particular mode of appointment is marked out. In Connecticut they have no distinct courts either of chancery or of admirality and their courts of probates have no jurisdiction of causes. Their common law courts have admirality and to a certain extent equity jurisdiction. In cases of importance their general assembly is the only court of chancery. In Connecticut, therefore, the trial by jury extends in practice further than in any other state yet mentioned. Rhode Island is, I believe, in this particular, pretty much in the situation of Connecticut. Massachusetts and New Hampshire, in regard to the blending of law, equity and admirality jurisdictions are in a similar predicament. In the four eastern states the trial by jury not only stands upon a broader foundation than in the other states but it is attended with a peculiarity unknown in its full extent to any of them. There is an appeal of course from one jury to another till there have been two verdicts out of three on one side. From this sketch it appears that there is a material diversity as well in the modification as in the extent of the institution of trial by jury in civil cases in the several states. And from this fact these obvious reflections flow. First, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all states. And secondly, that more or at least as much might have been hazarded by taking the system of any one state for a standard as by omitting a provision altogether and leaving the matter as has been done to legislative regulation. The propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose, quote, trial by jury shall be as here to fore, end quote. And this I maintain would be senseless and nougatory. The United States in their united or collective capacity are the object to which all general provisions in the Constitution must necessarily be construed to refer. Now it is evident that though trial by jury with various limitations is known in each state individually, yet in the United States as such it is at this time altogether unknown. Because the present federal government has no judiciary power, whatever, and consequently there is no proper antecedent or previous establishment to which the term here to fore could relate. It would therefore be destitute of a precise meaning and inoperative from its uncertainty. As on the one hand the form of the provision would not fulfill the intent of its proposers. So on the other if I apprehend that intent rightly it would be in itself inexpedient. I presume it to be that causes in the federal courts should be tried by jury if in the state where the court sat that mode of trial would obtain in a similar case in the state courts. That is to say admiralty causes should be tried in Connecticut by a jury in New York without one. The capricious operation of so dissimilar a method of trial in the same cases under the same government is of itself sufficient to indispose every well regulated judgment towards it. Whether the cause should be tried with or without a jury would depend in a great number of cases on the accidental situation of the court and parties. But this is not in my estimation the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly in cases which concern the public peace with foreign nations. That is in most cases where the question turns wholly on the laws of nations. Of this nature among others are all prize causes. Juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations. And they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. There would of course be always danger that the rights of other nations might be infringed by their decisions. So as to afford occasions of reprisal and war. Though the proper province of juries be too determined matters of fact yet in most cases legal consequences are complicated with fact in such a matter as to render a separation impracticable. It will add great weight to this remark in relation to prize causes. To mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of Europe and that pursuant to such treaties they are determinable in Great Britain. In the last resort before the King himself in his privy council where the fact as well as the law undergoes a re-examination. This alone demonstrates the impolicy of inserting a fundamental provision in the constitution which would make the state system a standard for the national government in the article under consideration and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable. My convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief in extraordinary cases which are exceptions. To unite the jurisdiction of such cases with the ordinary jurisdiction must have a tendency to unsettle the general rules. And to subject every case that arises to a special determination while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other and of keeping each within the expedient limits. Besides this the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate that they are incompatible with the genus of trial by jury. They require often such long, deliberate and critical investigation as would be impracticable to men called from their occupations and obliged to decide before they were permitted to return to them. The simplicity and expedition which from the distinguishing characters of this mode of trial require that the matter to be decided should be decided to some single and obvious point while the litigation's usual enchantery frequently comprehend a long train of minute and independent particulars. It is true that the separation of equity from the legal jurisdiction is peculiar to the English system of jurisprudence, which is the model that has been followed in several of the states. But it is equally true that the trial by jury has been unknown in every case in which they have been united, and the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law. But is it not a little to be suspected that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery on the plan upon which they are established in this state, but will tend gradually to change the nature of the courts of law and to undermine the trial by jury by introducing questions too complicated for a decision in that mode. These appeared to be conclusive reasons against incorporating the systems of all the states. In the formation of the national judiciary, according to what may be conjectured to have been the attempt of the Pennsylvania minority, let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect. It is in this form, quote, in civil actions between citizens of different states, every issue of fact arising in actions at common law may be tried by a jury if the parties, or either of them, request it, end quote. This at best is a proposition confined to one description of causes, and the inference is fair, either that the Massachusetts Convention considered that as the only class of federal causes in which the trial by jury would be proper, or that if desirous of a more extensive provision they found it impracticable to devise one which would properly answer the end. If the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. If the last, it affords a strong corroboration of the extreme difficulty of the thing. But this is not all, if we advert to the observations already made respecting the courts that subsist in the several states of the Union and the different powers exercised by them. It will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize that species of causes which it is intended shall be entitled to a trial by jury. In this state the boundaries between actions at common law and actions of equitable jurisdiction are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other states the boundaries are less precise. In some of them every cause is to be tried in a court of common law and upon that foundation every action may be considered as an action at common law. To be determined by a jury if the parties or either of them choose it. Hence the same irregularity and confusion would be introduced by a compliance with this proposition that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one state a cause would receive its determination from a jury if the parties or either of them requested it. But in another state a cause exactly similar to the other must be decided without the intervention of a jury because the state judicatories varied as to common law jurisdiction. It is obvious therefore that the Massachusetts proposition upon this subject cannot operate as general regulation until some uniform plan with respect to the limits of common law and equitable jurisdictions shall be adopted by the different states. To devise a plan of that kind is a task arduous in itself and which it would require much time and reflection to mature. It would be extremely difficult if not impossible to suggest any general regulation that would be acceptable to all the states in the union. Or that would perfectly quadrate with the several state institutions. It may be asked why could not a reference have been made to the constitution of this state taking that which is allowed by me to be a good one as a standard for the United States. I answer that it is not very probable that the other states would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own and that each would struggle for the preference. If the plan of taking one state as a model for the whole had been thought of in the convention it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government. And it must be uncertain which of the states would have been taken as the model. It has been shown that many of them would be improper ones. And I leave it to conjecture whether under all circumstances it is most likely that New York or some other state would have been preferred. But admit that a judicious selection could have been affected in the convention. Still there would have been great danger of jealousy and disgust in other states at the partiality which had been shown to the institutions of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it. Perhaps might have hazarded in no inconsiderable degree its final establishment. To avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace it is sometimes suggested by men of enthusiastic tempers that a provision might have been inserted for establishing it in all cases whatsoever. For this I believe no precedent is to be found in any member of the union and the considerations which have been stated in discussing the proposition of the minority of Pennsylvania must satisfy every sober mind that the establishment of the trial by jury in all cases would have been an unpardonable error in the plan. In short the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose or too much to be advisable or which might have opened other sources of opposition to the great and essential object of introducing a firm national government. I cannot but persuade myself on the other hand that the different lights in which the subject has been placed in the course of these observations will go far towards removing in candid minds the apprehensions they have entertained on the point. They have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases which is provided for in the most ample manner in the plan of the convention that even in far the greatest proportion of civil cases and those in which the great body of the community is interested that mode of trial will remain in its full force as established in the state constitutions untouched and unaffected by the plan of the convention that it is in no case abolished footnote three at conclusion of selection by that plan and that there are great if not insurmountable difficulties in the way of making any precise and proper provisions for it in a constitution for the United States. The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining questions of property preferable in many cases in which that mode of trial now prevails. For my part I acknowledge myself to be convinced that even in this state it might be advantageously extended to some cases to which it does not at present apply and might as advantageously be abridged in others. It is conceded by all responsible men that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits as well in these United States as in Great Britain afforded a strong presumption that its former extent has been found inconvenient and give room to suppose that future experience may discover the property and utility of other exceptions. I suspect it to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop and this is with me a strong argument for leaving the matter to the discretion of the legislature. This is now clearly understood to be the cause in Great Britain and is equally so in the state of Connecticut and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this state since the Revolution though provided for by a positive article of our constitution then has happened in the same time either in Connecticut or Great Britain. It may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest offenders of their popular liberty but who have rarely suffered constitutional obstacles to arrest them in a favorite career. The truth is that the general genius of a government is all that can be substantially relied upon for permanent effects. Particular provisions though not altogether useless have far less virtue and efficacy than are commonly ascribed to them and the want of them will never be with men of sound discernment a decisive objection to any plan which exhibits the leading characters of a good government. It certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a constitution which expressly establishes the trial by jury in criminal cases because it does not do it in civil also. While it is a notorious fact that Connecticut which has been always regarded as the most popular state in the Union can boast of no constitutional provision for either. Publius Footnote 2 Footnote 3 In which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the Supreme Court is examined and refuted. End of Federalist Papers No. 83 by Alexander Hamilton Read by Robert Scott, July 2, 2007 This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org Recording by ML Cohen, Cleveland, Ohio, June 2007 The Federalist Papers, Federalist No. 84 by Alexander Hamilton, James Madison and John Jay Federalist No. 84 Certain general and miscellaneous objections to the Constitution considered and answered. To the people of the State of New York In the course of the foregoing review of the Constitution I have taken notice of and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed, but as the subject has been drawn into great length I shall so far consult brevity as to compromise all my observations on these miscellaneous points in a single paper. The most considerable of the remaining objections is that the plan of the Convention contains no bill of rights. Among other answers given to this it has been upon different occasions remarked that the constitutions of the several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system in this State who profess an unlimited admiration for its Constitution are among the most intemperate partisans of the Bill of Rights. To justify their zeal in this matter they allege two things. One is that, though the Constitution of New York has no bill of rights prefixed to it, yet it contains in the body of it various provisions in favor of particular privileges and rights which, in substance amount to the bill of rights, are among the most intemperate partisans of the bill of rights. Yet it contains in the body of it various provisions in favor of particular privileges and rights which, in substance amount to the same thing. The other is that the Constitution adopts in their full extent the common and statute law of Great Britain by which many other rights not expressed in it are equally secured. To the first I answer that the Constitution proposed by the Convention contains as well as the Constitution of this State a number of such provisions. Independent of those which relate to the structure of the government, we find the following. Article 1, Section 3 Clause 7, quote, Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law, end quote. Section 9 of the same article, Clause 2, quote, The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it, close quote. Clause 3, No bill of attainder or ex post facto law shall be passed, end quote. Clause 7, quote, No title of nobility shall be granted by the United States, and no person holding any office of profit or trust under them shall, without the consent of the Congress, except of any present emolument, office, or title of any kind whatever, from any king, prince, or foreign state, end quote. Article 3, Section 2, Clause 3, The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the state where the said crime shall have been committed, but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed, end quote. Section 3 of the same article, quote, Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court, close quote. And Clause 3 of the same section, quote, The Congress shall have power to declare the punishment of treason, but no attainer of treason shall work corruption of blood or forfeiture, except during the life of the person attainted, end quote. It may well be a question whether these are not, upon the whole, of equal importance with any which to be found in the constitution of this state. The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of titles of nobility to which we have no corresponding provision in our constitution, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments have been in all ages the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital, quote, To bereave a man of life, says he, or by violence to confiscate his escape, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation. A confinement of the person by secretly hurting him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government, end quote. And, as a remedy for this fatal evil, he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls, quote, the bulwark of the British constitution, end quote. Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the quarter stone of the republican government, where so long as they are excluded, there can never be serious danger that the government will be any other than that of the people. To the second that is, to the pretend that establishment of the common and state law by the constitution, I answer, that they are expressly made subject, quote, to such alterations and provision as the legislature shall from time to time make concerning the same, end quote. They are therefore at any moment liable to repeal by the ordinary legislative power and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of government itself. It has been several times truly remarked that bills of rights are, in their origin, stipulation between kings and their subjects, abridgements of prerogative and favor of privilege, reservation of rights not surrendered to the prince. Such was the Magna Carta, obtained by the barren sword in hand from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the petition of right, assented to by Charles I, in the beginning of his reign. Such also was the declaration of right presented by the lords and commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that according to their primitive signification they have no application to constitutions professedly founded upon the power of the people and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain everything they have no need of particular reservations. Quote, Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state's bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government. But a minute detail of particular rights is certainly far less applicable to the constitution like under consideration, which is merely intended to regulate the general political interests of the nation than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention on this core are well founded, no epithets of reprobation will be too strong for the constitution of this state. But the truth is that both of them contain all which in relation to their objects is reasonably to be desired. I go further and affirm that bills of rights in the sense and to the extent in which they are contended for are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers not granted, and on this very account would afford a colourable pretext to claim more than were granted. For why declare the things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power, but it is evident that it would furnish to men disposed to usurp a plausible pretense for claiming that power. They might urge with a semblance of reason that the constitution ought not to be charged with the absurdity of providing against the abusive and authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which be given to the doctrine of constructive powers by the indulgence of an injudicious zeal for bills of rights. On the subject of liberty of the press, as much as has been said, I cannot forbid Erdinger a remark or two, in the first place, I observe, that there is not a syllable concerning it in the constitution of the state. In the next, I contend that whatever has been said about it in that of any other state amounts to nothing. What signifies the declaration that, quote, the liberty of the press shall be inviolably preserved? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable, and from this I infer that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion and on the general spirit of the people and of the government. And here, after all, as is intimated upon another occasion, we must seek for the only solid basis of all our rights. There remains, but one other view of this matter to conclude the point. The truth is, after all the declarations we have heard, that the constitution is itself, in every rational sense, and to every useful purpose, a bill of rights. The several bills of rights in Great Britain form its constitution, and conversely the constitution of each state is its bill of rights, and the proposed constitution, if adopted, will be the bill of rights of the union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention, comprehending various precautions for the public security, which are not to be found in any of the state constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to in a variety of cases in the same plan. Adverting, therefore, to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear, but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what Motus observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence, it must be apparent that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. Another objection which has been made, and which, from the frequency of a repetition, it is presumed is relied on, is of this nature. Quote, it is improper, say the objectors, to confer such large powers as are proposed upon the national government, because the seat of that government must of necessity be too remote for many of the states to admit of a proper knowledge on the part of the constituent of the conduct of the representative body. This argument, if it proves anything, proves that there ought to be no general government, whatever. For the powers which, it seems to be agreed in all hands, ought to be vested in the union, cannot be safely entrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is, in reality, not well founded. There is, in most of the arguments which relate to a distance, a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the state legislature? A personal observation they can have no benefit. This is confined to the citizens on the spot. They must, therefore, depend on the information of intelligent men in whom they confide, and how must these men obtain their information? Evidently, from the complexion of public measures, from the public prints, from the correspondences with the representatives, and with other persons who resided the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government. It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create will be overbalanced by the effects of the vigilance of the state governments. The executive and legislative bodies of each state will be so many sentinels over the persons employed in every department of the national administration, and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter may be relied upon if it were only from the rival ship of power. And we may conclude with the fullest assurance that the people through that channel will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their state representatives. It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interests with those who are at a distance, and that they will stand ready to sound the alarm when necessary and to point out the actors in any pernicious project. Public papers will be expeditious messengers of intelligence to the most remote inhabitants of the union. Among the merry curious objects which have appeared against the proposed constitution, the most extraordinary and least colorables derive from the want of some provision respecting the debts due to the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaultors. The newspapers have teamed with the most inflammatory railings on this head, yet there is nothing clearer than that to suggest an entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common sense, so it is also an established doctrine of political law that quote, states neither lose any of their rights nor are discharged from any of their obligations by a change in the form of their civil government. The last objection of any consequence which I at present recollect turns upon the article of expense. If it were even true that the adoption of the proposed government with occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan. The great bulk of the citizens of America are with reason convinced that the union is the basis of their political happiness. Men of sense of all parties now with few exceptions agree that it cannot be preserved under the present system, nor without radical alterations, that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government. A single body being an unsafe depository of such ample authorities. In conceding all this, the question of expense must be given up, for it is impossible with any degree of safety to narrow the foundation upon which the system is to stand. The two branches of the legislature are in the first instance to consist of only 65 persons, which is the same number of which Congress under the existing confederation may be composed. It is true that this number is intended to be increased, but this is to keep pace with the progress of the population and resources of the country. It is evident that less number would, even in the first instance, have been unsafe, and that a continuance of the present number would in a more advanced stage of population be a very inadequate representation of the people. Wentz is the dreaded augmentation of expense to spring. One source indicated is the multiplication of offices under the new government. Let us examine this a little. It is evident that the principal departments of the administration under the present government are the same which will be required under the new. There are now a secretary of war, a secretary of foreign affairs, a secretary for domestic affairs, a board of treasury, consisting of three persons, a treasurer, assistance clerk, etc. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the proposed constitution can make no other difference than to render their characters where they reside more respectable and their services more useful. As the persons to be employed in the collection of revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers, but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of state for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The states individually will stand in no need of any for this purpose. What difference can it make in point of expense to pay officers of the customs appointed by the state or by the United States? There is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former. Where, then, are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of judges of the United States. I do not add the President because there is now a President of Congress, whose expenses may not be far, if anything, short of those which will be incurred on account of the President of the United States. The support of the judges will be clearly an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter? But upon no reasonable plan can amount to a sum which will be an object of material consequence. Let us now see what there is to counterbalance any extra expense that may attend to the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him according to the general principles concerned within the Senate and subject to their final concurrence. Hence, it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives. We may suppose about a fourth for the latter and a third or perhaps half for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance, we may infer that until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future, Congress. But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the state legislatures as well as Congress. The latter has made requisitions which the former have had to provide for. Hence, it has happened that the sessions of the state legislatures have been protracted greatly beyond that which was necessary for the execution of the mere local business of the states. More than half their time has been frequently employed in matters which related to the United States. Now, the members who composed the legislatures of the several states amount to 2,000 and upward, which number has hitherto performed what under the new system will be done in the first instance by 65 persons and probably at no future period by above a fourth or fifth of that number. The Congress under the proposed government will do all the business of the United States themselves without the intervention of the state legislatures who thenceforth will have only to attend to the affairs of their particular states and it will not have to sit in any proportion as long as they have hitherto foredone. This difference in the time of the sessions of the state legislatures will be clear gain and will alone form an article of saving which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system. The result from these observations is that the sources of additional expense from the establishment of the proposed constitution are much fewer than may have been imagined. They are counterbalanced by considerable objects of saving and that while this question on which side the scale will preponderate it is certain that a government less expensive would be incompetent to the purposes of a union. Who please? End. Federalist paper number 84. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org. Recording by ML Cohen Cleveland, Ohio, June 2007. The Federalist papers by Alexander Hamilton, James Madison and John Jay. Federalist number 85 by Alexander Hamilton concluding remarks to the people of the state of New York. According to the formal division of the subject of these papers announced in my first number, there would appear still to remain for discussion two points. Quote, the analogy of the proposed government to your state constitution end quote, end quote, the additional security which its adoption will afford to a republican government to liberty and to property. But these heads have been so fully anticipated and exhausted in the progress of the work that it would now scarcely be possible to do anything more than repeat in a more dilated form what has been here to force said, which the advanced stage of the question and the time already spent upon it conspired to forbid. It is remarkable that the resemblance of the plan of the convention to the act which organizes the government of the state holds not less with regard to many dispose of defects than to the real excellences of the former. Among the pretended defects are the re-eligibility of the executive, the want of a council, the omission of a form of bill of rights, the omission of a provision respecting the liberty of the press. These and several others which have been noted in the course of our inquiries are as much chargeable on the existing constitution of this state as on the one proposed for the union. And a man must have slender pretentions to consistency who can rail at the ladder for imperfections which he finds no difficulty in excusing in the former. Nor indeed can there be a better proof of the insincerity and effectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan for matters in regard to which our own constitution is equally or perhaps more vulnerable. The additional securities to republican government, to liberty and to property to be derived from the adoption of the plan under consideration consists chiefly in the restraints which preservation of the union will impose on local factions and insurrections and on the ambition of powerful individuals in single states who may acquire credit and influence enough from leaders and favorites to become the despots of the people. In the diminution of the opportunities to foreign intrigue which the dissolution of the Confederacy would invite and facilitate, and the prevention of extensive military establishments which could not fail to grow out of wars between the estates of the disunited situation. In the express guarantee of a republican form of government to each, in the absolute and universal exclusion of titles and nobility, and in the precautions against the repetition of those practices on the part of state governments which have undermined the foundations of property and credit, have planted mutual distrust in the breast of all classes of citizens and have occasion in almost universal prostration of morals. Thus have I, fellow citizens, executed the task I had assigned to myself, with what success your conduct must determine. I trust at least to admit that I have not failed in the assurance I gave you respecting the spirit with which my endeavors should be conducted. I have addressed myself purely to your judgments and have studiously avoided those disparities which are too apt to disgrace political disputants which have been not a little provoked by the language and conduct of the opponents of the Constitution. The charge of a conspiracy against the liberties of the people which has been indiscriminately brought against the advocates of the plan has something in it too wanton and too malignant not to excite the indignation of every man who feels in his own bosom a refutation of the Columny. The perpetual changes which have been rung upon the wealthy. The well-born and the great have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and risk representations which have been in various ways practiced to keep the truth from the public eye have been of a nature to demand the reprobation of all honest men. It is not impossible to these circumstances may have occasionally betrayed me into the intemperances of expression which I did not intend. It is certain that I frequently felt a struggle between sensibility and moderation and if the former has in some instances prevailed it must be my excuse that has been neither often nor much. Let us now pause and ask ourselves whether in the course of these papers the proposed constitution has not been satisfactorily vindicated from the aspersions thrown upon it and whether it has not been shown worthy of the public approbation and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself according to the best of his conscience and understanding and to act agreeably to the genuine and sober dictates of his judgment. This is a duty from which nothing can give him dispensation. It is one that is called upon nay constrained by all the obligations that form the bands of society to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice will justify to himself, to his country or to his posterity an improper election of the part he is to act. Let him beware of an obstinate adherence to party. Let him reflect that the object upon which he is to decide is not a particular interest of the community but the very existence of the nation. And let him remember that a majority of America has already given its sanction to the plan which he is to approve or reject. I shall not dissemble that I feel an entire confidence in the arguments which recommend the proposed system to your adoption and that I am unable to discern any real force in those by which it has been opposed. I am persuaded that it is the best which our political situation, habits and opinions will admit and superior to any the revolution has produced. Concessions on the part of the friends of the plan that it has not a claim to absolute perfection have afforded matter of no small triumph to its enemies. Why, say they, should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established? This may be plausible enough, but it is only plausible. In the first place I remark that the extent of these concessions has been greatly exaggerated. They have been stated as amounting to an admission that the plan is radically defective and that without material alterations the rights and interests of the community cannot be safely confided to it. This, as far as I have understood, the meaning of those who make the concessions is an entire perversion of their sense. No advocate of the measure can be found who will not declare as his sentiment that the system, though it may not be perfect in every part, is upon the whole a good one, is the best that the present fuse in circumstances of the country will permit and is such and one as promises every species of security which a reasonable people can desire. I answer in the next place that I should esteem it the extreme of imprudence to prolong the precarious state of our national affairs and to expose the union to the jeopardy of successive experiments in the chimerical pursuit of a perfect plan. I never expect to see a perfect work from an imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound as well of the errors and prejudices as of the good sense and wisdom of the individuals of whom they are composed. The compacts which are to embrace 13 distinct states in a common bond of amity and union must as necessarily be compromised as of many dissimilar interests and inclinations. How can perfection spring from such materials? The reasons assigned it in an excellent little pamphlet lately published in this city are unanswerable to show the utter improbability of assembling a new convention under circumstances in any degree so favorable to a happy issue as those in which the late convention met deliberated and concluded. I will not repeat the arguments they are used as I presume the production itself has had an extensive circulation. It is certainly well worthy the perusal of every friend to his country. There is however one point of light in which the subject of amendment still remains to be considered and in which it has not yet been exhibited to public view. I cannot resolve the conclude without first taking a survey of it It appears to me susceptible of absolute demonstration that it will be far more easy to obtain subsequent than previous amendments to the constitution. The moment an alteration is made in the present plan it becomes to the purpose of adoption a new one and must undergo a new decision of each state. To its complete establishment throughout the union it will therefore require the concurrence of 13 states. If on the contrary the constitution proposed should once be as it stands alterations in it may at any time be affected by nine states. Here then the chances are as 13 to 9 in favor of subsequent amendment rather than of the original adoption of an entire system. This is not all. Every constitution for the United States must inevitably consist of a great variety of particulars in which 13 independent states are to be accommodated in their interest or opinions of interest. It may of course expect to see and anybody of men charged with its original formation very different combination of the parts upon different points. Many of those who form a majority on one question may become the minority on second and an association dissimilar to either may constitute the majority on the third. Hence the necessity of molding and arranging all the particulars which are to compose the whole in such a manner as to satisfy all the parties to the compact multiplication of difficulties and casualties and obtaining the collective ascent of a final act. The degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties. But every amendment to the constitution if once established would be a single proposition and might be brought forward singly. There would then be no necessity for management or compromise in relation to any other point no giving nor taking. That would not bring the matter to a decisive issue and consequently whenever nine or rather ten states were united in the desire of a particular amendment that amendment must infallibly take place. There can therefore be no comparison between the facility of affecting an amendment and that of establishing in the first instance a complete constitution. In opposition to the probability of subsequent amendments it has been urged that the persons delegated yield up any portion of the authority of which they were once possessed. For my own part I acknowledge a thorough conviction that any amendments which may upon mature consideration be thought useful will be applicable to the organization of the government not to the mass of its powers and on this account alone I think there is no weight in the observation just stated. I also think there is little weight in it on another account. The intrinsic difficulty of governing 13 states at any rate independent of calculations upon an ordinary degree of public spirit and integrity will in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of the constituents. But there is yet a further consideration which proves beyond the possibility of a doubt that the observation is futile. It is this that the national never-nine states concur will have no option upon the subject. By the fifth article of the plan the Congress will be obliged on the application of the legislatures of two-thirds of the states which at present amount to nine to call a convention for proposing amendments which shall be valid to all intents and purposes as part of the constitution when ratified by the legislatures of three-fourths of the states or by convention in three-fourths of this article are preemptory. The Congress, quote, shall call a convention, end quote. Nothing in this particular is left to the discretion of that body. And of consequence all the declination about the disinclination to change vanishes in error. Nor however difficult it may be supposed to unite two-thirds of three-fourths of the state legislatures in amendments which may affect local interest. Can there be any room to liberty or security of the people? We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority. If the foregoing argument is a fallacy certain it is that I am myself deceived by it, for it is in my conception one of those rare instances in which the political truth can be brought to the test of a mathematical demonstration. Those who see the matter in the same light with me, however zealous will be in the propriety of a previous adoption as the most direct road to their own object. The zeal for attempts to amend prior to the establishment of the Constitution must debate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious. Quote, to balance a large state of society, says he, whether monarchic or republican on general laws is a work of so great difficulty that no human genius however comprehensive is able to reason and reflection to effect it. The judgments of many must unite in the work. Experience must guide their labor. Time must bring it to perfection and the feeling of inconveniences must correct the mistakes which they inevitably fall into their first trials and experiments. Footnote, Hume essays volume one page 128, the rise of arts and sciences. These judicious reflections contain the lesson of moderation to all the sincere lovers of the union and ought to put them upon their guard against hazarding anarchy civil war, a perpetual alienation of the states from each other and perhaps the military despotism of the victorious demagogue in the pursuit of what they are not likely to obtain but from time and experience. It may be in me a defect of political fortitude, but I acknowledge that cannot entertain an equal tranquility with those who affect to treat the dangers of a longer society. A nation without a national government is, in my view, an awful spectacle. The establishment of a constitution in time of profound peace by the voluntary consent of a whole people is a prodigy to the completion of which I look forward with trembling anxiety. I can reconcile it to no rules of prudence to let go the hold we now have in so arduous an enterprise upon seven out of the thirteen states and after it is time to recommence the course. I dread the more the consequences of the new attempt because I know the powerful individuals in this and in other states are enemies to a general national government in every possible shape. Publius. End of Federalist Number 85. End of Federalist Papers.