FEDERALIST No. 84

Certain General and Miscellaneous Objections to the Constitution

Considered and Answered

From McLEAN's Edition, New York.

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, Usays he,e 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 Usay the objectorse 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. Vide Blackstone's ``Commentaries,'' vol. iv., 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.