Title: The Federalist No. 83, [28 May 1788]
From: Hamilton, Alexander,“Publius”
To:

[New York, May 28, 1788]
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 force conviction, when expressed in language adapted to convey their meaning.
With regard to civil causes, subtleties almost too contemptible for refutation, have been adopted 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, “a specification of particulars is an exclusion of generals;” or, “the expression of one thing is the exclusion of another.” 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 reason or 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 authorise or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing, is a prohibition to the doing of another, which there was 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 either to 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 pretence 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 pretence 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 ideas 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 such 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 endeavour 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, shall 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 nugatory if it did not exclude all ideas of more extensive authority.
These examples might be sufficient to elucidate the maxims which have been mentioned, and designate the manner in which they should be used. But that there may be no possibility of misapprehension 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 as 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 the 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 determinate 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 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 cases 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 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, and 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 union by acts of the state legislatures, will belong exclusively to the jurisdiction of the state tribunals. Add to this that admiralty 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 regard it as a valuable safeguard to liberty, the latter represent it 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 defence against the oppressions of an 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 offences, 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 the 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 the 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 proceeding of distress and sale, as in cases of rent. And it is acknowledged on all hands, that this is essential to the efficacy of the 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 burthensome 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. Wilful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offences 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 favour 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 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 doubt 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 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 co-operation of a jury is necessary, than they might be if they had themselves the exclusive determination of all causes.
Nothwithstanding 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 favour, 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 jury 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, an 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 (analogous in certain matters to the spiritual courts in England) a court of admiralty, and a court of chancery. In the courts of common law only the trial by jury prevails, and this with some exceptions. In all the others a single judge presides and proceeds in general either according to the course of the cannon or civil law, without the aid of a jury.

   It has been erroneously insinuated, with regard to the court of chancery, that this court generally tries disputed facts by a jury. The truth is, that references to a jury in that court rarely happen, and are in no case necessary, but where the validity of a devise of land comes into question.

 In New-Jersey there is a court of chancery which proceeds like ours, but neither courts of admiralty, 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 admiralty 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 admiralty, 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 does 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 admiralty, the causes depending in them are triable by juries. In Georgia there are none but common law courts, and an appeal of course 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 admiralty, and their courts of probates have no jurisdiction of causes. Their common law courts have admiralty, 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 admiralty, jurisdictions are in a similiar 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 the 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 it has been left, 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—“trial by jury shall be as heretofore”—and this I maintain would be absolutely senseless and nugatory. 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 heretofore 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 fulfil 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 courts sat, that mode of trial would obtain in a similiar case in the state courts—that is to say admiralty causes should be tried in Connecticut by a jury, and 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 enquiries. 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 to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner 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 systems a standard for the national government in the article under consideration, and the danger of incumbering 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

   It is true that the principles by which that relief is governed are now reduced to a regular system, but it is not the less true that they are in the main, applicable to Special circumstances which form exceptions to general rules.

 to general rules. 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 the 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 genius of trials 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 permited to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars.
It is true that the separation of the 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 it is 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 appear 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 intent 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—“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.”

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 characterise 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 chuse 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 a 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 the other states should entertain the same opinion of our institutions which 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 favour of its own government; and it must be uncertain which of the states would have been taken as the model. It has been shewn 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 effected in the convention, still there would have been great danger of jealousy and disgust in the other states, at the partiality which had been shewn 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, which 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 some times 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 adviseable; or which might not 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 may have entertained on the point. They have tended to shew 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

   Vide No. LXXXI, 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.

 by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision 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 own 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 reasonable men, that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these states as in Great-Britain, afford a strong presumption that its former extent has been found inconvenient; and give room to suppose that future experience may discover the propriety 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 case in Great-Britain, and it 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, than 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 endeavour to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favourite 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.


Title: The Federalist No. 84, [28 May 1788]
From: Hamilton, Alexander,“Publius”
To:

[New York, May 28, 1788]
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 endeavoured to answer, most of the objections which have appeared against it. There however remain a few which either did not fall naturally under any particular head, or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper.
The most considerable of these remaining objections is, that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked, that the constitutions of several of the states are in a similar predicament. I add, that New-York is of this 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 partizans of a bill of rights. To justify their zeal in this matter, they alledge 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 favour 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 I. section 3. clause 7. “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” Section 9. of the same article, clause 2. “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Clause 3. “No bill of attainder or ex post facto law shall be passed.” Clause 7. “No title of nobility shall be granted by the United States: And no person holding any office of profit or trust under them, shall, without the consent of congress, accept of any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state.” Article III. section 2. clause 3. “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed.” Section 3, of the same article, “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witness to the same overt act, or on confession in open court.” And clause 3, of the same section. “The congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.”
It may well be a question whether these are not upon the whole, of equal importance with any which are to be found in the constitution of this state. The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provisions 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 favourite and most formidable instruments of tyranny. The observations of the judicious Blackstone

   Vide Blackstone’s Commentaries, vol. I, page 136.

 in reference to the latter, are well worthy of recital. “To bereave a man of life (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying to goal, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” And as a remedy for this fatal evil, he is every where peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls “the BULWARK of the British constitution.”

   Idem, vol. 4, page 438.

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.
To the second, that is, to the pretended establishment of the common and statute law by the constitution, I answer, that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law, and to remove doubts which might have been occasioned by the revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.
It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the Barons, sword in hand, from king John. Such were the subsequent confirmations of that charter by subsequent princes. Such was the petition of right assented to by Charles the First, in the beginning of his reign. Such also was the declaration of right presented by the lords and commons to the prince of Orange in 1688, and afterwards thrown into the form of an act of parliament, called the bill of rights. It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. “WE THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.” Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
But a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If therefore the loud clamours against the plan of the convention on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this state. But the truth is, that both of them contain all, which in relation to their objects, is reasonably to be desired.
I go further, and affirm that bills of rights, in the sense and in 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 which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much has been said, I cannot forbear adding a remark or two: In the first place, I observe that there is not a syllable concerning it in the constitution of this state, and in the next, I contend that whatever has been said about it in that of any other state, amounts to nothing. What signifies a declaration that “the liberty of the press shall be inviolably preserved?” What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this, I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.

   To show that there is a power in the constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon publications so high as to amount to a prohibition. I know not by what logic it could be maintained that the declarations in the state constitutions, in favour of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the state legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abrigement of the liberty of the press. We know that newspapers are taxed in Great-Britain, and yet it is notorious that the press no where enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, regulated by public opinion; so that after all, general declarations respecting the liberty of the press will give it no greater security than it will have without them. The same invasions of it may be effected under the state constitutions which contain those declarations through the means of taxation, as under the proposed constitution which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, &c., as that the liberty of the press ought not to be restrained.

 And here, after all, as intimated upon another occasion, must we seek for the only solid basis of all our rights.
There remains but one other view of this matter to conclude the point. The truth is, after all the declamation 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 GreatBritain, 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 as absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent that much of what has been said on this subject rests merely on verbal and nominal distinctions, which are entirely foreign from the substance of the thing.
Another objection, which has been made, and which from the frequency of its repetition it is to be presumed is relied on, is of this nature: It is improper (say the objectors) to confer such large powers, as are proposed, upon the national government; because the seat of that government must of necessity be too remote from many of the states to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body. This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which it seems to be agreed on all hands, ought to be vested in the union, cannot be safely intrusted to a body which is not under every requisite controul. But there are satisfactory reasons to shew that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery county must regulate their judgment of the conduct of their representatives in the state legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide—and how must these men obtain their information? Evidently from the complection of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberation. 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 overballanced by the effects of the vigilance of the state governments. The executive and legislative bodies of each state will be so many centinels 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 behaviour of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance, that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their state representatives.
It ought also to be remembered, that the citizens who inhabit the country at and near the seat of government, will in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance; and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the union.
Among the many extraordinary objections which have appeared against the proposed constitution, the most extraordinary and the least colourable one, is derived from the want of some provision respecting the debts due to the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; and yet there is nothing clearer than that the suggestion is entirely void of foundation, and is the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe, that as it is a plain dictate of common sense, so it is also an established doctrine of political law, that “States neither lose any of their rights, nor are discharged from any of their obligations by a change in the form of their civil government.

   Vide Rutherford’s Institutes, vol. 2. book 11. chap. x. sec. xiv, and xv.—Vide also Grotius, book II, chap. ix, sect. viii, and ix.

The last objection of any consequence which I at present recollect, turns upon the article of expence. If it were even true that the adoption of the proposed government would occasion a considerable increase of expence, it would be an objection that ought to have no weight against the plan. The great bulk of the citizens of America, are with reason convinced that union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government, a single body being an unsafe depository of such ample authorities. In conceding all this, the question of expence must be given up, for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are in the first instance, to consist of only sixty-five persons, which is the same number of which congress, under the existing confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the increase of the population and resources of the country. It is evident, that a less number would, even in the first instance, have been unsafe; and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people.
Whence is the dreaded augmentation of expence to spring? One source pointed out, 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 at war, a secretary for foreign affairs, a secretary for domestic affairs, a board of treasury consisting of three persons, a treasurer, assistants, clerks, &c. These offices are indispensable under any system, and will suffice under the new as well as under the old. As to ambassadors and other ministers and agents in foreign countries, the proposed constitution can make no other difference, than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow, that this will occasion an increase of public expence. It will be in most cases nothing more than an exchange of state officers 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 expence, to pay officers of the customs appointed by the state, or those appointed 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 expence which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me, respects the support of the judges of the United States. I do not add the president, because there is now a president of congress, whose expences may not be far, if any thing, short of those which will be incurred on account of the president of the United States. The support of the judges will clearly be an extra expence, but to what extent will depend on the particular plan which may be adopted in practice in regard to this matter. But it can upon no reasonable plan amount to a sum which will be an object of material consequence.
Let us now see what there is to counterballance any extra expences that may attend the establishment of the proposed government. The first thing that 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 negociations will naturally devolve upon him according to general principles concerted with the senate, and subject to their final concurrence. Hence it is evident, that a portion of the year will suffice for the session of both the senate and the house of representatives: We may suppose about a fourth for the latter, and a third or perhaps a 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 expence 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 the economy. The business of the United States has hitherto occupied the state legislatures as well as congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the state legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the states. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several states amount to two thousand and upwards; which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or a fifth of that number. The congress under the proposed government will do all the business of the United States themselves, without the intervention of the state legislatures, who thenceforth will have only to attend to the affairs of their particular states, and will not have to sit in any proportion as long as they have heretofore done. This difference, in the time of the sessions of the state legislatures, will be all clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expence that may be occasioned by the adoption of the new system.
The result from these observations is, that the sources of additional expence from the establishment of the proposed constitution are much fewer than may have been imagined, that they are counterbalanced by considerable objects of saving, and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the union.
PUBLIUS.


Title: The Federalist No. 85, [28 May 1788]
From: Hamilton, Alexander,“Publius”
To:

[New York, May 28, 1788]
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, “the analogy of the proposed government to your own state constitution,” and “the additional security, which its adoption will afford to 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 any thing more than repeat, in a more dilated form, what has been heretofore said; which the advanced stage of the question, and the time already spent upon it conspire to forbid.
It is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this state holds, not less with regard to many of the supposed defects, than to the real excellencies of the former. Among the pretended defects, are the re-eligibility of the executive, the want of a council, the omission of a formal 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 pretensions to consistency, who can rail at the latter for imperfections which he finds no difficulty in excusing in the former. Nor indeed can there be a better proof of the insincerity and affectation 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, consist chiefly in the restraints which the preservation of the union will impose on local factions and insurrections, and on the ambition of powerful individuals in single states, who might 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; in the prevention of extensive military establishments, which could not fail to grow out of wars between the states in a disunited situation; in the express guarantee of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the state governments, which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals.
Thus have I, my fellow citizens, executed the task I had assigned to myself; with what success, your conduct must determine. I trust at least you will admit, that I have not failed in the assurance I gave you respecting the spirit with which my endeavours should be conducted. I have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and 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 calumny. 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 misrepresentations 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 that these circumstance may have occasionally betrayed me into intemperances of expression which I did not intend: It is certain that I have frequently felt a struggle between sensibility and moderation, and if the former has in some instances prevailed, it must be my excuse that it 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 shewn to be 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 a dispensation. ’Tis one that he 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 intire 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 the 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 intire 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 views and circumstances of the country will permit, and is such an 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 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 thirteen distinct states, in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?
The reasons assigned in an excellent little pamphlet lately published in this city

   Intitled “An Address to the people of the state of New-York.”

 are unanswerable to shew the utter improbability of assembling a new convention, under circumstances in any degree so favourable to a happy issue, as those in which the late convention met, deliberated and concluded. I will not repeat the arguments there 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 amendments still remains to be considered; and in which it has not yet been exhibited to public view. I cannot resolve to conclude, without first taking a survey of it in this aspect.
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 thirteen states. If, on the contrary, the constitution proposed should once be ratified by all the states as it stands, alterations in it may at any time be affected by nine states. Here then the chances are as thirteen to nine

   It may rather be said Ten for though two-thirds may set on foot the measure, three-fourths must ratify.

   It may rather be said Ten for though two-thirds may set on foot the measure, three-fourths must ratify.

 in favour of subsequent amendments, rather than of the original adoption of an intire system.
This is not all. Every constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent states are to be accommodated in their interests or opinions of interest. We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form the majority on one question may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. Hence the necessity of moulding and arranging all the particulars which are to compose the whole in such a manner as to satisfy all the parties to the compact; and hence also an immense multiplication of difficulties and casualties in obtaining the collective assent to 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. The will of the requisite number would at once bring the matter to a decisive issue. And consequently whenever nine

   It may rather be said Ten for though two-thirds may set on foot the measure, three-fourths must ratify.

  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 effecting 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 to the administration of the national government, will always be disinclined to 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 THIRTEEN 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 their constituents. But there is yet a further consideration, which proves beyond the possibility of doubt, that the observation is futile. It is this, that the national rulers, whenever 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 amounts 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 conventions in three-fourths thereof.” The words of this article are peremptory. The Congress “shall call a convention.” Nothing in this particular is left to the discretion of that body. And of consequence all the declamation about their disinclination to a change, vanishes in air. Nor however difficult it may be supposed to unite two-thirds or three-fourths of the state legislatures, in amendments which may affect local interest, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general 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 a political truth can be brought to the test of mathematical demonstration. Those who see the matter in the same light with me, however zealous they may be for amendments, must agree 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 abate in every man, who, is ready to accede to the truth of the following observations of a writer, equally solid and ingenious: “To balance a large state or society (says he) whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work: EXPERIENCE must guide their labour: Time must bring it to perfection: And the FEELING of inconveniences must correct the mistakes which they inevitably fall into, in their first trials and experiments.”

   Hume’s Essays, vol. I, page 128.—The rise of arts and sciences.

 These judicious reflections contain a 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 a 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 I cannot entertain an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. 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 having passed over so considerable a part of the ground to recommence the course. I dread the more the consequences of new attempts, because I KNOW that POWERFUL INDIVIDUALS, in this and in other states, are enemies to a general national government, in every possible shape.
PUBLIUS.


Title: From Alexander Hamilton to John Sullivan, 6 June 1788
From: Hamilton, Alexander
To: Sullivan, John

New York, June 6, 1788.
Dear Sir:
You will no doubt have understood that the Antifederal party has prevailed in this State by a large majority. It is therefore of the utmost importance that all external circumstances should be made use of to influence their conduct. This will suggest to you the great advantage of a speedy decision in your State, if you can be sure of the question, and a prompt communication of the event to us. With this view, permit me to request that the instant you have taken a decisive vote in favor of the Constitution, you send an express to me at Poughkeepsie. Let him take the shortest route to that place, change horses on the road, and use all possible diligence. I shall with pleasure defray all expenses, and give a liberal reward to the person. As I suspect an effort will be made to precipitate us, all possible safe dispatch on your part, as well to obtain a decision as to communicate the intelligence of it, will be desirable.


Title: From Alexander Hamilton to James Madison, [8 June 1788]
From: Hamilton, Alexander
To: Madison, James

[New York, June 8, 1788]
My Dear Sir
In my last I think I informed you that the elections had turned out, beyond expectation, favourable to the Antifœderal party. They have a majority of two thirds in the Convention and according to the best estimate I can form of about four sevenths in the community. The views of the leaders in this City are pretty well ascertained to be turned towards a long adjournment say till next spring or Summer. Their incautious ones observe that this will give an opportunity to the state to see how the government works and to act according to circumstances.
My reasonings on the fact are to this effect. The leaders of the party hostile to the constitution are equally hostile to the Union. They are however afraid to reject the constitution at once because that step would bring matters to a crisis between this state and the states which had adopted the Constitution and between the parties in the state. A separation of the Southern district from the other part of the state it is perceived would become the object of the Fœderalists and of the two neighbouring states. They therefore resolve upon a long adjournment as the safest and most artful course to effect their final purpose. They suppose that when the Government gets into operation it will be obliged to take some steps in respect to revenue &c. which will furnish topics of declamation to its enemies in the several states and will strengthen the minorities. If any considerable discontent should show itself they will stand ready to head the opposition. If on the contrary the thing should go on smoothly and the sentiments of our own people should change they can then elect to come into the Union. They at all events take the chances of time and the chapter of accidents.
How far their friends in the Country will go with them I am not able to say, but as they have always been found very obsequious we have little reason to calculate upon an uncompliant temper in the present instance.
For my own part the more I can penetrate the views of the Antifœderal party in this state, the more I dread the consequences of the non adoption of the Constitution by any of the other states, the more I fear an eventual disunion and civil war. God grant that Virginia may accede. Her example will have a vast influence on our politics. New Hampshire, all accounts give us to expect, will be an assenting state.
The number of the volumes of the Fœderalist which you desired have been forwarded as well the se[c]ond as first, to the care of Governor Randolph. It was impossible to correct a certain error.
In a former letter I requested you to communicate to me by express the event of any decisive question in favour of the constitution authorising changes of horses &c with an assurance to the person sent that he will be liberally paid for his diligence.
Mr. Maddison


Title: To Alexander Hamilton from James Madison, 9 June [1788]
From: Madison, James
To: Hamilton, Alexander

Richd. June 9. [1788]
Dr. Sir
The Heat of the weather &c. has laid me up with a bilious attack; I am not able therefore to say more than a few words.
No material indications have taken place since my last. The chance at present seems to be in our favor. But it is possible things may take another turn. Oswald in Phila. came here on Saturday; and has closet interviews with the leaders of the opposition.
Yours affcy.
Js. Madison, Jr.
Alexr. Hamilton Esqr


Title: To Alexander Hamilton from Rufus King, 12 June 1788
From: King, Rufus
To: Hamilton, Alexander

Boston 12 June 1788
Dear Sir,
I have made an arrangement to forward by express the result of the convention of New Hampshire to Springfield in this State, from which place Genl. Knox has engaged a conveyance to you at Poughkeepsie. Those who are best informed of the situation of the Question in New Hampshire are positive that the Decision will be such as we wish, and from the particular Facts which I have heard, I can entertain no fear of a Disappointment from that Quarter. The accession of New Hampshire will present the Subject to your Convention in a new and indeed an extraordinary light. I think your Opponents powerful as they may be, will be greatly perplexed. Although they may outnumber you, and a small majority of the people of the State may be on their Side, yet I cannot think they will have hardiness to negative the Question.
You may pronounce with the utmost confidence that the Decision of our Convention has proved entirely satisfactory to our people. I have made a business of conversing with men from all parts of this State and am completely satisfied that the constitution is highly popular; that its opponents are now very few, and that few hourly diminishing. Be assured that the organization of the Government, by Nine States (which is considered as certain) although a subject of Delicacy, is most earnestly desired; and from the conversation of both yeoman & politician, I am persuaded, that the People of Massachusetts are sufficiently mature & firm, to execute so far [as] depends on them, what shall be proper as good Subjects of the New-Government.
Farewel   Yours &c
Rufus King
Col. A. Hamilton
Pray mention to Knox that I should have written to him had I not supposed him on his way here.


Title: Continental Congress. Report on a Letter from the Minister Plenipotentiary of France, [12 June 1788]
From: Continental Congress
To:

[New York, June 12, 1788]
The Committee to whom was referred the report of the Secretary for foreign affairs on the note from The Minister Plenipotentiary of France with the papers accompanying it report—
That it appears by the said note and the papers which accompany it, that the person mentioned therein, to wit Joseph Marie Anne Fermier commander of the Brig David is in substance charged with betraying his trust and running away with a cargo of Coffee belonging to other persons. That the execution of this design is alleged to have been begun at the Cape continued by certain acts on the high seas and completed in the commonwealth of Virginia. Whereupon Your Committee submit the following resolution.
That The Secretary for foreign affairs be directed to transmit the note of the Minister Plenipotentiary of France of the 28 Ultimo to the Executive of the Commonwealth of Virginia to the end that the said Executive may communicate to Congress the necessary information on the subject, and also to signify to the said Executive that it is the sense of Congress that the said J M A F ought to be apprehended in order to be dealt with according to the nature of his case. And that the said Secretary be directed to inform the said Minister Plenipotenttiary that instructions have already been given to the Minister of the United States at the Court of France concerning the Consular Convention referred to in his note.


Title: To Alexander Hamilton from James Madison, 13 June 1788
From: Madison, James
To: Hamilton, Alexander

[Richmond, June 13, 1788. On June 25, 1788, Hamilton wrote to Madison: “I am very sorry to find by your letter of the 13th that your prospects are so critical.” Letter not found.]


Title: To Alexander Hamilton from James Madison, 16 June 1788
From: Madison, James
To: Hamilton, Alexander

Richmond June 16. 1788
My dear Sir
Yours of the 8th. is just come to hand. I mentioned in my last that Oswald had been here in consultation with the Antifedl. leaders. The contents of your letter confirm the idea that a negotiation for delay is [on] foot between the opposition here & with you. We have conjectured for some days that the policy is to spin out the Session in order to receive overtures from your Convention; or if that cannot be to weary the members into a adjournment without taking any decision. It [is] presumed at the same time that they do not despair of carrying the point of previous amendments which is preferable game. The parties continue to be nicely balanced. If we have a majority at all it does not exceed three or four. If we lose it Kentucke will be the cause; they are generally if not unanimously against us.
I have been partially recovered since my last, but to day have a sort of relapse. My health is not good, and the business is wearisome beyond expression. I wish you every happiness & am yrs.
Js. Madison Jr


Title: To Alexander Hamilton from Henry Lee, [16 June 1788]
From: Lee, Henry
To: Hamilton, Alexander

[Richmond, June 16, 1788]
My dear sir
God bless you & your efforts to save me from the manifold ⟨–⟩ misfortunes which have & continue to oppress me, whenever I attempt to aid human nature. You will do what you think best & whatever you do I will confirm. Hazard has acted the part of a decided rascal & if I fail in my right, I may not in personal revenge.
Our Convention is in full debate on the great business of Federal constitution. We possess as yet in defiance of great exertions a majority, but very small indeed.
A correspondence has certainly been opened thro a Mr. O. of Philada from the malcontents of P. & N.Y. to us—it has its operation, but I believe we are still safe, unless the question of adjournment should be introduced, & love of home may induce some of our friends to abandon their principles.
Adieu
H. Lee


Title: From Alexander Hamilton to James Madison, [19 June 1788]
From: Hamilton, Alexander
To: Madison, James

[Poughkeepsie, New York, June 19, 1788]
Yesterday, My Dear Sir, The Convention made a house. That day and this have been spent in preliminary arrangements. Tomorrow we go into a Committee of the whole on the Constitution. There is every appearance that a full discussion will take place, which will keep us together at least a fortnight. It is not easy to conjecture what will be the result. Our adversaries greatly outnumber us. The leaders gave indications of a pretty desperate disposition in private conversations previous to the meeting; but I imagine the minor partisans have their scruples and an air of moderation is now assumed. So far the thing is not to be despaired of. A happy issue with you must have considerable influence upon us.
I have time to add nothing more than the assurances of my sincere attachment
A Hamilton
PoughkepsieJune 19. 1788


Title: Introductory Note: New York Ratifying Convention, [17 June–26 July 1788]
From:
To:

On February 1, 1788, the New York legislature voted to call a convention to ratify or reject the proposed Constitution. Departing from the usual suffrage requirements, the legislature resolved that every free male citizen of twenty-one years or over was to have a vote. In the elections, held on the third Tuesday in April, Hamilton was elected one of the delegates to the New York Ratifying Convention.
The account of Hamilton’s remarks in the New York Ratifying Convention has been taken from the following five sources: 1. a shorthand record made by Francis Childs; 2. notes taken by John McKesson; 3. notes taken by Gilbert Livingston; 4. notes taken by Melancton Smith; 5. newspaper reports.
The most complete record of Hamilton’s remarks from the beginning of the Convention until June 28 was made by Francis Childs, editor of The [New York] Daily Advertiser, (The Debates and Proceedings of the Convention of the State of New-York, Assembled at Poughkeepsie, on the 17th June, 1788. To deliberate and decide on the Form of Federal Government recommended by the General Convention at Philadelphia, on the 17th September, 1787. Taken in Short Hand [New-York: Printed and Sold by Francis Childs, 1788]). Childs described his work, its limitations, and the way in which it was compiled in an “Advertisement” which he published at the beginning of his book:
“WHEN the EDITOR formed the design of Publishing the DEBATES of the CONVENTION, he entertained hopes, that the different Speakers could be prevailed upon to revise their several Speeches, as taken down by him. But as the engagements of some of the Gentlemen prevented them from undertaking the task, and as it might have appeared unfair to submit them to a partial revision, he resolved, after waiting a considerable time, to defer no longer the gratification of the Public curiosity, but, without their assistance, to enter upon the business, extensive and arduous as it was. As he proceeded, he discovered that a much greater portion of time and labor was necessary, than he at first apprehended. The approach of the Session of the Legislature also reminded him of the duty he owed the Public, and which could not be dispensed with. These circumstances, together with the pressure of his other employments, while they furnish an apology for the long delay with which this publication has been attended, he hopes will be a sufficient excuse for confining himself, towards the close of the work, to a short sketch of the Proceedings.
“Though the EDITOR has taken great pains to render the publication as perfect and satisfactory as possible, and believes, that the substance of what was said in Convention has been justly stated, yet he thinks an apology due to the Gentlemen concerned, for the imperfect dress in which their arguments are given to the Public. Not long accustomed to the business, he cannot pretend to as much accuracy as might be expected from a more experienced hand;—and it will easily be comprehended how difficult it must be to follow a copious and rapid Speaker, in the train of his reasoning, much more in the turn of his expression. New-York, Dec. 1, 1788.”
After June 28, Childs confined himself to a brief account of the motions introduced in the Convention and did not make a record of the debates.
Supplementing Childs’s record are the notes made by John McKesson and Melancton Smith. As secretary of the Convention, McKesson was custodian of its official records. In addition to his official duties, he took notes on many of the speeches. Smith was the Antifederalist representative of Dutchess County at the Convention. Because Childs admitted that he presented the speeches in “imperfect dress” and because he stated that his record could not “pretend to as much accuracy as might be expected from a more experienced hand,” McKesson’s and Smith’s as well as Childs’s version of Hamilton’s remarks have been printed. Where both the Childs, McKesson, and Smith records of Hamilton’s remarks have been printed only the Childs version has been annotated. McKesson’s notes may be found in the New-York Historical Society, New York City. Smith’s notes are located in the New York State Library, Albany.
Between July 14 and the end of the Convention the most complete record of debates in the Convention is that kept by Gilbert Livingston, a delegate from Dutchess County. The notes by Livingston are in the MS Division, New York Public Library. They are unfortunately so brief as to be incomprehensible. Livingston undoubtedly took notes on the earlier sessions of the Convention, but these notes have not been found.
An account of the debates kept by Robert R. Livingston may be found in the New-York Historical Society, New York City. These notes, however, are so fragmentary and cryptic that they have not been used to supplement the other records of the debates.
Notes on the debates in the Ratifying Convention kept by Richard Harison, a Federalist delegate from New York City, are in the Hamilton Papers, Library of Congress. Only one fragmentary account of a Hamilton speech appears (see “New York Ratifying Convention. Remarks,” Francis Childs’s Version, June 27, 1788, note 9).
Newspaper reports of debates in the Convention were incomplete. They have been used only when they are more complete than the report of the debates given by Childs, McKesson, Smith, or Gilbert Livingston.
The remaining source of information on the New York Ratifying Convention is the manuscript “Journal of the Proceedings of the Convention of the State of New York. To ratify the proposed Constitution of the United States. Held at the Town of Poughkeepsie County of Dutchess and Commencing on Tuesday the 17th day of June 1788” (New York State Library, Albany), hereafter cited as McKesson, “Journal of the Proceedings.” The “Journal of the Proceedings” was compiled by McKesson from his own notes and drafts of various resolutions and letters made by the members of the Convention. Because the “Journal of the Proceedings” is the official text, it has been used whenever possible for the text of motions and resolutions. Occasionally, however, certain resolves and motions were not put into the “Journal of the Proceedings.” In such cases, the McKesson Papers, which are in the New-York Historical Society, New York City, have been used. They have also been used whenever the Convention was debating the draft of a resolution or motion which appears in the “Journal of the Proceedings” only in amended form.
When the New York delegates met in Poughkeepsie on June 17, 1788, eight states had adopted the Constitution. With its acceptance by nine states the Constitution would go into operation as the government of the United States. The first and second days of the Convention were occupied in electing George Clinton president and in adopting rules.


Title: To Alexander Hamilton from John Langdon, [21 June 1788]
From: Langdon, John
To: Hamilton, Alexander

State of New HampshierConcord June 21th. 1788
Dr sir
By the Desire of our Mutual Friend Rufus King Esqr. I have the great pleasure and satisfaction of informing you, that this State, has this day Adopted the federal Constitution; this al-important Question, was Carried by a Majority of Eleven 57 Yeas 46 Nays. Excuse hast and Believe me, with the greatest Respect
Dr: Sir:   Your Mot: Obt: Servant
Jno: Langdon
P: S: this letter goes to Springfield by an express which Ive sent for this purpose to the Care of William Smith Esqr: of that place who is to forward it to you.
Honble. Alexander Hamilton Esqr: