FEDERALIST No. 84



Certain General and Miscellaneous Objections to the Constitution

Considered and Answered

From McLEAN's Edition, New York.

Wednesday, May 28, 1788



HAMILTON



To the People of the State of New York:



IN THE course of the foregoing review of the Constitution, I have taken

notice of, and endeavored to answer most of the objections which have

appeared against it. There, however, remain a few which either did not

fall naturally under any particular head or were forgotten in their

proper places. These shall now be discussed; but as the subject has been

drawn into great length, I shall so far consult brevity as to comprise

all my observations on these miscellaneous points in a single paper.



The most considerable of the remaining objections is that the plan of

the convention contains no bill of rights. Among other answers given to

this, it has been upon different occasions remarked that the

constitutions of several of the States are in a similar predicament. I

add that New York is of the number. And yet the opposers of the new

system, in this State, who profess an unlimited admiration for its

constitution, are among the most intemperate partisans of a bill of

rights. To justify their zeal in this matter, they allege two things:

one is that, though the constitution of New York has no bill of rights

prefixed to it, yet it contains, in the body of it, various provisions

in favor of particular privileges and rights, which, in substance amount

to the same thing; the other is, that the Constitution adopts, in their

full extent, the common and statute law of Great Britain, by which many

other rights, not expressed in it, are equally secured.



To the first I answer, that the Constitution proposed by the convention

contains, as well as the constitution of this State, a number of such

provisions.



Independent of those which relate to the structure of the government, we

find the following: Article 1, section 3, clause 7 -- "Judgment in cases

of impeachment shall not extend further than to removal from office, and

disqualification to hold and enjoy any office of honor, trust, or profit

under the United States; but the party convicted shall, nevertheless, be

liable and subject to indictment, trial, judgment, and punishment

according to law." Section 9, of the same article, clause 2 -- "The

privilege of the writ of habeas corpus shall not be suspended, unless

when in cases of rebellion or invasion the public safety may require

it." Clause 3 -- "No bill of attainder or ex-post-facto law shall be

passed." Clause 7 -- "No title of nobility shall be granted by the

United States; and no person holding any office of profit or trust under

them, shall, without the consent of the Congress, accept of any present,

emolument, office, or title of any kind whatever, from any king, prince,

or foreign state." Article 3, section 2, clause 3 -- "The trial of all

crimes, except in cases of impeachment, shall be by jury; and such trial

shall be held in the State where the said crimes shall have been

committed; but when not committed within any State, the trial shall be

at such place or places as the Congress may by law have directed."

Section 3, of the same article -- "Treason against the United States

shall consist only in levying war against them, or in adhering to their

enemies, giving them aid and comfort. No person shall be convicted of

treason, unless on the testimony of two witnesses to the same overt act,

or on confession in open court." And clause 3, of the same section --

"The Congress shall have power to declare the punishment of treason; but

no attainder of treason shall work corruption of blood, or forfeiture,

except during the life of the person attainted."



It may well be a question, whether these are not, upon the whole, of

equal importance with any which are to be found in the constitution of

this State. The establishment of the writ of habeas corpus, the

prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which

we have no corresponding provision in our Constitution, are perhaps

greater securities to liberty and republicanism than any it contains.

The creation of crimes after the commission of the fact, or, in other

words, the subjecting of men to punishment for things which, when they

were done, were breaches of no law, and the practice of arbitrary

imprisonments, have been, in all ages, the favorite and most formidable

instruments of tyranny. The observations of the judicious Blackstone,[1]

in reference to the latter, are well worthy of recital: "To bereave a

man of life, [says he] or by violence to confiscate his estate, without

accusation or trial, would be so gross and notorious an act of

despotism, as must at once convey the alarm of tyranny throughout the

whole nation; but confinement of the person, by secretly hurrying him to

jail, where his sufferings are unknown or forgotten, is a less public, a

less striking, and therefore a more dangerous engine of arbitrary

government." And as a remedy for this fatal evil he is everywhere

peculiarly emphatical in his encomiums on the habeas corpus act, which

in one place he calls "the BULWARK of the British Constitution."[2]



Nothing need be said to illustrate the importance of the prohibition of

titles of nobility. This may truly be denominated the corner-stone of

republican government; for so long as they are excluded, there can never

be serious danger that the government will be any other than that of the

people.



To the second that is, to the pretended establishment of the common and

state law by the Constitution, I answer, that they are expressly made

subject "to such alterations and provisions as the legislature shall

from time to time make concerning the same." They are therefore at any

moment liable to repeal by the ordinary legislative power, and of course

have no constitutional sanction. The only use of the declaration was to

recognize the ancient law and to remove doubts which might have been

occasioned by the Revolution. This consequently can be considered as no

part of a declaration of rights, which under our constitutions must be

intended as limitations of the power of the government itself.



It has been several times truly remarked that bills of rights are, in

their origin, stipulations between kings and their subjects,

abridgements of prerogative in favor of privilege, reservations of

rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by

the barons, sword in hand, from King John. Such were the subsequent

confirmations of that charter by succeeding princes. Such was the

Petition of Right assented to by Charles I., in the beginning of his

reign. Such, also, was the Declaration of Right presented by the Lords

and Commons to the Prince of Orange in 1688, and afterwards thrown into

the form of an act of parliament called the Bill of Rights. It is

evident, therefore, that, according to their primitive signification,

they have no application to constitutions professedly founded upon the

power of the people, and executed by their immediate representatives and

servants. Here, in strictness, the people surrender nothing; and as they

retain every thing they have no need of particular reservations. "WE,

THE PEOPLE of the United States, to secure the blessings of liberty to

ourselves and our posterity, do ordain and establish this Constitution

for the United States of America." Here is a better recognition of

popular rights, than volumes of those aphorisms which make the principal

figure in several of our State bills of rights, and which would sound

much better in a treatise of ethics than in a constitution of

government.



But a minute detail of particular rights is certainly far less

applicable to a Constitution like that under consideration, which is

merely intended to regulate the general political interests of the

nation, than to a constitution which has the regulation of every species

of personal and private concerns. If, therefore, the loud clamors

against the plan of the convention, on this score, are well founded, no

epithets of reprobation will be too strong for the constitution of this

State. But the truth is, that both of them contain all which, in

relation to their objects, is reasonably to be desired.



I go further, and affirm that bills of rights, in the sense and to the

extent in which they are contended for, are not only unnecessary in the

proposed Constitution, but would even be dangerous. They would contain

various exceptions to powers not granted; and, on this very account,

would afford a colorable pretext to claim more than were granted. For

why declare that things shall not be done which there is no power to do?

Why, for instance, should it be said that the liberty of the press shall

not be restrained, when no power is given by which restrictions may be

imposed? I will not contend that such a provision would confer a

regulating power; but it is evident that it would furnish, to men

disposed to usurp, a plausible pretense for claiming that power. They

might urge with a semblance of reason, that the Constitution ought not

to be charged with the absurdity of providing against the abuse of an

authority which was not given, and that the provision against

restraining the liberty of the press afforded a clear implication, that

a power to prescribe proper regulations concerning it was intended to be

vested in the national government. This may serve as a specimen of the

numerous handles which would be given to the doctrine of constructive

powers, by the indulgence of an injudicious zeal for bills of rights.



On the subject of the liberty of the press, as much as has been said, I

cannot forbear adding a remark or two: in the first place, I observe,

that there is not a syllable concerning it in the constitution of this

State; in the next, I contend, that whatever has been said about it in

that of any other State, amounts to nothing. What signifies a

declaration, that "the liberty of the press shall be inviolably

preserved"? What is the liberty of the press? Who can give it any

definition which would not leave the utmost latitude for evasion? I hold

it to be impracticable; and from this I infer, that its security,

whatever fine declarations may be inserted in any constitution

respecting it, must altogether depend on public opinion, and on the

general spirit of the people and of the government.[3] And here, after

all, as is intimated upon another occasion, must we seek for the only

solid basis of all our rights.



There remains but one other view of this matter to conclude the point.

The truth is, after all the declamations we have heard, that the

Constitution is itself, in every rational sense, and to every useful

purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain

form its Constitution, and conversely the constitution of each State is

its bill of rights. And the proposed Constitution, if adopted, will be

the bill of rights of the Union. Is it one object of a bill of rights to

declare and specify the political privileges of the citizens in the

structure and administration of the government? This is done in the most

ample and precise manner in the plan of the convention; comprehending

various precautions for the public security, which are not to be found

in any of the State constitutions. Is another object of a bill of rights

to define certain immunities and modes of proceeding, which are relative

to personal and private concerns? This we have seen has also been

attended to, in a variety of cases, in the same plan. Adverting

therefore to the substantial meaning of a bill of rights, it is absurd

to allege that it is not to be found in the work of the convention. It

may be said that it does not go far enough, though it will not be easy

to make this appear; but it can with no propriety be contended that

there is no such thing. It certainly must be immaterial what mode is

observed as to the order of declaring the rights of the citizens, if

they are to be found in any part of the instrument which establishes the

government. And hence it must be apparent, that much of what has been

said on this subject rests merely on verbal and nominal distinctions,

entirely foreign from the substance of the thing.



Another objection which has been made, and which, from the frequency of

its repetition, it is to be presumed is relied on, is of this nature:

"It is improper [say the objectors] to confer such large powers, as are

proposed, upon the national government, because the seat of that

government must of necessity be too remote from many of the States to

admit of a proper knowledge on the part of the constituent, of the

conduct of the representative body." This argument, if it proves any

thing, proves that there ought to be no general government whatever. For

the powers which, it seems to be agreed on all hands, ought to be vested

in the Union, cannot be safely intrusted to a body which is not under

every requisite control. But there are satisfactory reasons to show that

the objection is in reality not well founded. There is in most of the

arguments which relate to distance a palpable illusion of the

imagination. What are the sources of information by which the people in

Montgomery County must regulate their judgment of the conduct of their

representatives in the State legislature? Of personal observation they

can have no benefit. This is confined to the citizens on the spot. They

must therefore depend on the information of intelligent men, in whom

they confide; and how must these men obtain their information? Evidently

from the complexion of public measures, from the public prints, from

correspondences with theirrepresentatives, and with other persons who

reside at the place of their deliberations. This does not apply to

Montgomery County only, but to all the counties at any considerable

distance from the seat of government.



It is equally evident that the same sources of information would be open

to the people in relation to the conduct of their representatives in the

general government, and the impediments to a prompt communication which

distance may be supposed to create, will be overbalanced by the effects

of the vigilance of the State governments. The executive and legislative

bodies of each State will be so many sentinels over the persons employed

in every department of the national administration; and as it will be in

their power to adopt and pursue a regular and effectual system of

intelligence, they can never be at a loss to know the behavior of those

who represent their constituents in the national councils, and can

readily communicate the same knowledge to the people. Their disposition

to apprise the community of whatever may prejudice its interests from

another quarter, may be relied upon, if it were only from the rivalship

of power. And we may conclude with the fullest assurance that the

people, through that channel, will be better informed of the conduct of

their national representatives, than they can be by any means they now

possess of that of their State representatives.



It ought also to be remembered that the citizens who inhabit the country

at and near the seat of government will, in all questions that affect

the general liberty and prosperity, have the same interest with those

who are at a distance, and that they will stand ready to sound the alarm

when necessary, and to point out the actors in any pernicious project.

The public papers will be expeditious messengers of intelligence to the

most remote inhabitants of the Union.



Among the many curious objections which have appeared against the

proposed Constitution, the most extraordinary and the least colorable is

derived from the want of some provision respecting the debts due to the

United States. This has been represented as a tacit relinquishment of

those debts, and as a wicked contrivance to screen public defaulters.

The newspapers have teemed with the most inflammatory railings on this

head; yet there is nothing clearer than that the suggestion is entirely

void of foundation, the offspring of extreme ignorance or extreme

dishonesty. In addition to the remarks I have made upon the subject in

another place, I shall only observe that as it is a plain dictate of

common-sense, so it is also an established doctrine of political law,

that "States neither lose any of their rights, nor are discharged from

any of their obligations, by a change in the form of their civil

government."[4]



The last objection of any consequence, which I at present recollect,

turns upon the article of expense. If it were even true, that the

adoption of the proposed government would occasion a considerable

increase of expense, it would be an objection that ought to have no

weight against the plan.



The great bulk of the citizens of America are with reason convinced,

that Union is the basis of their political happiness. Men of sense of

all parties now, with few exceptions, agree that it cannot be preserved

under the present system, nor without radical alterations; that new and

extensive powers ought to be granted to the national head, and that

these require a different organization of the federal government -- a

single body being an unsafe depositary of such ample authorities. In

conceding all this, the question of expense must be given up; for it is

impossible, with any degree of safety, to narrow the foundation upon

which the system is to stand. The two branches of the legislature are,

in the first instance, to consist of only sixty-five persons, which is

the same number of which Congress, under the existing Confederation, may

be composed. It is true that this number is intended to be increased;

but this is to keep pace with the progress of the population and

resources of the country. It is evident that a less number would, even

in the first instance, have been unsafe, and that a continuance of the

present number would, in a more advanced stage of population, be a very

inadequate representation of the people.



Whence is the dreaded augmentation of expense to spring? One source

indicated, is the multiplication of offices under the new government.

Let us examine this a little.



It is evident that the principal departments of the administration under

the present government, are the same which will be required under the

new. There are now a Secretary of War, a Secretary of Foreign Affairs, a

Secretary for Domestic Affairs, a Board of Treasury, consisting of three

persons, a Treasurer, assistants, clerks, etc. These officers are

indispensable under any system, and will suffice under the new as well

as the old. As to ambassadors and other ministers and agents in foreign

countries, the proposed Constitution can make no other difference than

to render their characters, where they reside, more respectable, and

their services more useful. As to persons to be employed in the

collection of the revenues, it is unquestionably true that these will

form a very considerable addition to the number of federal officers; but

it will not follow that this will occasion an increase of public

expense. It will be in most cases nothing more than an exchange of State

for national officers. In the collection of all duties, for instance,

the persons employed will be wholly of the latter description. The

States individually will stand in no need of any for this purpose. What

difference can it make in point of expense to pay officers of the

customs appointed by the State or by the United States? There is no good

reason to suppose that either the number or the salaries of the latter

will be greater than those of the former.



Where then are we to seek for those additional articles of expense which

are to swell the account to the enormous size that has been represented

to us? The chief item which occurs to me respects the support of the

judges of the United States. I do not add the President, because there

is now a president of Congress, whose expenses may not be far, if any

thing, short of those which will be incurred on account of the President

of the United States. The support of the judges will clearly be an extra

expense, but to what extent will depend on the particular plan which may

be adopted in regard to this matter. But upon no reasonable plan can it

amount to a sum which will be an object of material consequence.



Let us now see what there is to counterbalance any extra expense that

may attend the establishment of the proposed government. The first thing

which presents itself is that a great part of the business which now

keeps Congress sitting through the year will be transacted by the

President. Even the management of foreign negotiations will naturally

devolve upon him, according to general principles concerted with the

Senate, and subject to their final concurrence. Hence it is evident that

a portion of the year will suffice for the session of both the Senate

and the House of Representatives; we may suppose about a fourth for the

latter and a third, or perhaps half, for the former. The extra business

of treaties and appointments may give this extra occupation to the

Senate. From this circumstance we may infer that, until the House of

Representatives shall be increased greatly beyond its present number,

there will be a considerable saving of expense from the difference

between the constant session of the present and the temporary session of

the future Congress.



But there is another circumstance of great importance in the view of

economy. The business of the United States has hitherto occupied the

State legislatures, as well as Congress. The latter has made

requisitions which the former have had to provide for. Hence it has

happened that the sessions of the State legislatures have been

protracted greatly beyond what was necessary for the execution of the

mere local business of the States. More than half their time has been

frequently employed in matters which related to the United States. Now

the members who compose the legislatures of the several States amount to

two thousand and upwards, which number has hitherto performed what under

the new system will be done in the first instance by sixty-five persons,

and probably at no future period by above a fourth or fifth of that

number. The Congress under the proposed government will do all the

business of the United States themselves, without the intervention of

the State legislatures, who thenceforth will have only to attend to the

affairs of their particular States, and will not have to sit in any

proportion as long as they have heretofore done. This difference in the

time of the sessions of the State legislatures will be clear gain, and

will alone form an article of saving, which may be regarded as an

equivalent for any additional objects of expense that may be occasioned

by the adoption of the new system.



The result from these observations is that the sources of additional

expense from the establishment of the proposed Constitution are much

fewer than may have been imagined; that they are counterbalanced by

considerable objects of saving; and that while it is questionable on

which side the scale will preponderate, it is certain that a government

less expensive would be incompetent to the purposes of the Union.



PUBLIUS



1. Vide Blackstone's Commentaries, Vol. 1, p. 136.



2. Idem, Vol. 4, p. 438.



3. To show that there is a power in the Constitution by which the

liberty of the press may be affected, recourse has been had to the power

of taxation. It is said that duties may be laid upon the publications so

high as to amount to a prohibition. I know not by what logic it could be

maintained, that the declarations in the State constitutions, in favor

of the freedom of the press, would be a constitutional impediment to the

imposition of duties upon publications by the State legislatures. It

cannot certainly be pretended that any degree of duties, however low,

would be an abridgment of the liberty of the press. We know that

newspapers are taxed in Great Britain, and yet it is notorious that the

press nowhere enjoys greater liberty than in that country. And if duties

of any kind may be laid without a violation of that liberty, it is

evident that the extent must depend on legislative discretion,

respecting the liberty of the press, will give it no greater security

than it will have without them. The same invasions of it may be effected

under the State constitutions which contain those declarations through

the means of taxation, as under the proposed Constitution, which has

nothing of the kind. It would be quite as significant to declare that

government ought to be free, that taxes ought not to be excessive, etc.,

as that the liberty of the press ought not to be restrained.



4. Vide Rutherford's Institutes, Vol. 2, Book II, Chapter X, Sections

XIV and XV. Vide also Grotius, Book II, Chapter IX, Sections VIII and IX.