I



                    18 October 1787



To the Citizens of the State of New-York.



When the public is called to investigate and decide upon a question in which 

not only the present members of the community are deeply interested, but 

upon which the happiness and misery of generations yet unborn is in great 

measure suspended, the benevolent mind cannot help feeling itself peculiarly 

interested in the result.



In this situation, I trust the feeble efforts of an individual, to lead the 

minds of the people to a wise and prudent determination, cannot fail of 

being acceptable to the candid and dispassionate part of the community. 

Encouraged by this consideration, I have been induced to offer my thoughts 

upon the present important crisis of our public affairs.



Perhaps this country never saw so critical a period in their political 

concerns. We have felt the feebleness of the ties by which these 

United-States are held together, and the want of sufficient energy in our 

present confederation, to manage, in some instances, our general concerns. 

Various expedients have been proposed to remedy these evils, but none have 

succeeded. At length a Convention of the states has been assembled, they 

have formed a constitution which will now, probably, be submitted to the 

people to ratify or reject, who are the fountain of all power, to whom alone 

it of right belongs to make or unmake constitutions, or forms of government, 

at their pleasure. The most important question that was ever proposed to 

your decision, or to the decision of any people under heaven, is before you, 

and you are to decide upon it by men of your own election, chosen specially 

for this purpose. If the constitution, offered to your acceptance, be a wise 

one, calculated to preserve the invaluable blessings of liberty, to secure 

the inestimable rights of mankind, and promote human happiness, then, if you 

accept it, you will lay a lasting foundation of happiness for millions yet 

unborn; generations to come will rise up and call you blessed. You may 

rejoice in the prospects of this vast extended continent becoming filled 

with freemen, who will assert the dignity of human nature. You may solace 

yourselves with the idea, that society, in this favoured land, will fast 

advance to the highest point of perfection; the human mind will expand in 

knowledge and virtue, and the golden age be, in some measure, realised. But 

if, on the other hand, this form of government contains principles that will 

lead to the subversion of liberty -- if it tends to establish a despotism, 

or, what is worse, a tyrannic aristocracy; then, if you adopt it, this only 

remaining assylum for liberty will be shut up, and posterity will execrate 

your memory.



Momentous then is the question you have to determine, and you are called 

upon by every motive which should influence a noble and virtuous mind, to 

examine it well, and to make up a wise judgment. It is insisted, indeed, 

that this constitution must be received, be it ever so imperfect. If it has 

its defects, it is said, they can be best amended when they are experienced. 

But remember, when the people once part with power, they can seldom or never 

resume it again but by force. Many instances can be produced in which the 

people have voluntarily increased the powers of their rulers; but few, if 

any, in which rulers have willingly abridged their authority. This is a 

sufficient reason to induce you to be careful, in the first instance, how 

you deposit the powers of government.



With these few introductory remarks, I shall proceed to a consideration of 

this constitution:



The first question that presents itself on the subject is, whether a 

confederated government be the best for the United States or not? Or in 

other words, whether the thirteen United States should be reduced to one 

great republic, governed by one legislature, and under the direction of one 

executive and judicial; or whether they should continue thirteen 

confederated republics, under the direction and controul of a supreme 

federal head for certain defined national purposes only?



This enquiry is important, because, although the government reported by the 

convention does not go to a perfect and entire consolidation, yet it 

approaches so near to it, that it must, if executed, certainly and 

infallibly terminate in it.



This government is to possess absolute and uncontroulable power, 

legislative, executive and judicial, with respect to every object to which 

it extends, for by the last clause of section 8th, article 1st, it is 

declared "that the Congress shall have power to make all laws which shall be 

necessary and proper for carrying into execution the foregoing powers, and 

all other powers vested by this constitution, in the government of the 

United States; or in any department or office thereof." And by the 6th 

article, it is declared "that this constitution, and the laws of the United 

States, which shall be made in pursuance thereof, and the treaties made, or 

which shall be made, under the authority of the United States, shall be the 

supreme law of the land; and the judges in every state shall be bound 

thereby, any thing in the constitution, or law of any state to the contrary 

notwithstanding." It appears from these articles that there is no need of 

any intervention of the state governments, between the Congress and the 

people, to execute any one power vested in the general government, and that 

the constitution and laws of every state are nullified and declared void, so 

far as they are or shall be inconsistent with this constitution, or the laws 

made in pursuance of it, or with treaties made under the authority of the 

United States. -- The government then, so far as it extends, is a complete 

one, and not a confederation. It is as much one complete government as that 

of New-York or Massachusetts, has as absolute and perfect powers to make and 

execute all laws, to appoint officers, institute courts, declare offences, 

and annex penalties, with respect to every object to which it extends, as 

any other in the world. So far therefore as its powers reach, all ideas of 

confederation are given up and lost. It is true this government is limited 

to certain objects, or to speak more properly, some small degree of power is 

still left to the states, but a little attention to the powers vested in the 

general government, will convince every candid man, that if it is capable of 

being executed, all that is reserved for the individual states must very 

soon be annihilated, except so far as they are barely necessary to the 

organization of the general government. The powers of the general 

legislature extend to every case that is of the least importance -- there is 

nothing valuable to human nature, nothing dear to freemen, but what is 

within its power. It has authority to make laws which will affect the lives, 

the liberty, and property of every man in the United States; nor can the 

constitution or laws of any state, in any way prevent or impede the full and 

complete execution of every power given. The legislative power is competent 

to lay taxes, duties, imposts, and excises; -- there is no limitation to 

this power, unless it be said that the clause which directs the use to which 

those taxes, and duties shall be applied, may be said to be a limitation: 

but this is no restriction of the power at all, for by this clause they are 

to be applied to pay the debts and provide for the common defence and 

general welfare of the United States; but the legislature have authority to 

contract debts at their discretion; they are the sole judges of what is 

necessary to provide for the common defence, and they only are to determine 

what is for the general welfare; this power therefore is neither more nor 

less, than a power to lay and collect taxes, imposts, and excises, at their 

pleasure; not only [is] the power to lay taxes unlimited, as to the amount 

they may require, but it is perfect and absolute to raise them in any mode 

they please. No state legislature, or any power in the state governments, 

have any more to do in carrying this into effect, than the authority of one 

state has to do with that of another. In the business therefore of laying 

and collecting taxes, the idea of confederation is totally lost, and that of 

one entire republic is embraced. It is proper here to remark, that the 

authority to lay and collect taxes is the most important of any power that 

can be granted; it connects with it almost all other powers, or at least 

will in process of time draw all other after it; it is the great mean of 

protection, security, and defence, in a good government, and the great 

engine of oppression and tyranny in a bad one. This cannot fail of being the 

case, if we consider the contracted limits which are set by this 

constitution, to the late [state?] governments, on this article of raising 

money. No state can emit paper money -- lay any duties, or imposts, on 

imports, or exports, but by consent of the Congress; and then the net 

produce shall be for the benefit of the United States: the only mean 

therefore left, for any state to support its government and discharge its 

debts, is by direct taxation; and the United States have also power to lay 

and collect taxes, in any way they please. Every one who has thought on the 

subject, must be convinced that but small sums of money can be collected in 

any country, by direct taxe[s], when the foederal government begins to 

exercise the right of taxation in all its parts, the legislatures of the 

several states will find it impossible to raise monies to support their 

governments. Without money they cannot be supported, and they must dwindle 

away, and, as before observed, their powers absorbed in that of the general 

government.



It might be here shewn, that the power in the federal legislative, to raise 

and support armies at pleasure, as well in peace as in war, and their 

controul over the militia, tend, not only to a consolidation of the 

government, but the destruction of liberty. -- I shall not, however, dwell 

upon these, as a few observations upon the judicial power of this 

government, in addition to the preceding, will fully evince the truth of the 

position.



The judicial power of the United States is to be vested in a supreme court, 

and in such inferior courts as Congress may from time to time ordain and 

establish. The powers of these courts are very extensive; their jurisdiction 

comprehends all civil causes, except such as arise between citizens of the 

same state; and it extends to all cases in law and equity arising under the 

constitution. One inferior court must be established, I presume, in each 

state, at least, with the necessary executive officers appendant thereto. It 

is easy to see, that in the common course of things, these courts will 

eclipse the dignity, and take away from the respectability, of the state 

courts. These courts will be, in themselves, totally independent of the 

states, deriving their authority from the United States, and receiving from 

them fixed salaries; and in the course of human events it is to be expected, 

that they will swallow up all the powers of the courts in the respective 

states.



How far the clause in the 8th section of the 1st article may operate to do 

away all idea of confederated states, and to effect an entire consolidation 

of the whole into one general government, it is impossible to say. The 

powers given by this article are very general and comprehensive, and it may 

receive a construction to justify the passing almost any law. A power to 

make all laws, which shall be necessary and proper, for carrying into 

execution, all powers vested by the constitution in the government of the 

United States, or any department or officer thereof, is a power very 

comprehensive and definite [indefinite?], and may, for ought I know, be 

exercised in a such manner as entirely to abolish the state legislatures. 

Suppose the legislature of a state should pass a law to raise money to 

support their government and pay the state debt, may the Congress repeal 

this law, because it may prevent the collection of a tax which they may 

think proper and necessary to lay, to provide for the general welfare of the 

United States? For all laws made, in pursuance of this constitution, are the 

supreme lay of the land, and the judges in every state shall be bound 

thereby, any thing in the constitution or laws of the different states to 

the contrary notwithstanding. -- By such a law, the government of a 

particular state might be overturned at one stroke, and thereby be deprived 

of every means of its support.



It is not meant, by stating this case, to insinuate that the constitution 

would warrant a law of this kind; or unnecessarily to alarm the fears of the 

people, by suggesting, that the federal legislature would be more likely to 

pass the limits assigned them by the constitution, than that of an 

individual state, further than they are less responsible to the people. But 

what is meant is, that the legislature of the United States are vested with 

the great and uncontroulable powers, of laying and collecting taxes, duties, 

imposts, and excises; of regulating trade, raising and supporting armies, 

organizing, arming, and disciplining the militia, instituting courts, and 

other general powers. And are by this clause invested with the power of 

making all laws, proper and necessary, for carrying all these into 

execution; and they may so exercise this power as entirely to annihilate all 

the state governments, and reduce this country to one single government. And 

if they may do it, it is pretty certain they will; for it will be found that 

the power retained by individual states, small as it is, will be a clog upon 

the wheels of the government of the United States; the latter therefore will 

be naturally inclined to remove it out of the way. Besides, it is a truth 

confirmed by the unerring experience of ages, that every man, and every body 

of men, invested with power, are ever disposed to increase it, and to acquire 

a superiority over every thing that stands in their way. This disposition, 

which is implanted in human nature, will operate in the federal legislature 

to lessen and ultimately to subvert the state authority, and having such 

advantages, will most certainly succeed, if the federal government succeeds 

at all. It must be very evident then, that what this constitution wants of 

being a complete consolidation of the several parts of the union into one 

complete government, possessed of perfect legislative, judicial, and 

executive powers, to all intents and purposes, it will necessarily acquire 

in its exercise and operation.



Let us now proceed to enquire, as I at first proposed, whether it be best 

the thirteen United States should be reduced to one great republic, or not? 

It is here taken for granted, that all agree in this, that whatever 

government we adopt, it ought to be a free one; that it should be so framed 

as to secure the liberty of the citizens of America, and such an one as to 

admit of a full, fair, and equal representation of the people. The question 

then will be, whether a government thus constituted, and founded on such 

principles, is practicable, and can be exercised over the whole United 

States, reduced into one state?



If respect is to be paid to the opinion of the greatest and wisest men who 

have ever thought or wrote on the science of government, we shall be 

constrained to conclude, that a free republic cannot succeed over a country 

of such immense extent, containing such a number of inhabitants, and these 

encreasing in such rapid progression as that of the whole United States. 

Among the many illustrious authorities which might be produced to this 

point, I shall content myself with quoting only two. The one is the baron de 

Montesquieu, spirit of laws, chap. xvi. vol. I [book VIII]. "It is natural 

to a republic to have only a small territory, otherwise it cannot long 

subsist. In a large republic there are men of large fortunes, and 

consequently of less moderation; there are trusts too great to be placed in 

any single subject; he has interest of his own; he soon begins to think that 

he may be happy, great and glorious, by oppressing his fellow citizens; and 

that he may raise himself to grandeur on the ruins of his country. In a 

large republic, the public good is sacrificed to a thousand views; it is 

subordinate to exceptions, and depends on accidents. In a small one, the 

interest of the public is easier perceived, better understood, and more 

within the reach of every citizen; abuses are of less extent, and of course 

are less protected." Of the same opinion is the marquis Beccarari.



History furnishes no example of a free republic, any thing like the extent 

of the United States. The Grecian republics were of small extent; so also 

was that of the Romans. Both of these, it is true, in process of time, 

extended their conquests over large territories of country; and the 

consequence was, that their governments were changed from that of free 

governments to those of the most tyrannical that ever existed in the world.



Not only the opinion of the greatest men, and the experience of mankind, are 

against the idea of an extensive republic, but a variety of reasons may be 

drawn from the reason and nature of things, against it. In every government, 

the will of the sovereign is the law. In despotic governments, the supreme 

authority being lodged in one, his will is law, and can be as easily 

expressed to a large extensive territory as to a small one. In a pure 

democracy the people are the sovereign, and their will is declared by 

themselves; for this purpose they must all come together to deliberate, and 

decide. This kind of government cannot be exercised, therefore, over a 

country of any considerable extent; it must be confined to a single city, or 

at least limited to such bounds as that the people can conveniently 

assemble, be able to debate, understand the subject submitted to them, and 

declare their opinion concerning it.



In a free republic, although all laws are derived from the consent of the 

people, yet the people do not declare their consent by themselves in person, 

but by representatives, chosen by them, who are supposed to know the minds 

of their constituents, and to be possessed of integrity to declare this 

mind.



In every free government, the people must give their assent to the laws by 

which they are governed. This is the true criterion between a free 

government and an arbitrary one. The former are ruled by the will of the 

whole, expressed in any manner they may agree upon; the latter by the will 

of one, or a few. If the people are to give their assent to the laws, by 

persons chosen and appointed by them, the manner of the choice and the 

number chosen, must be such, as to possess, be disposed, and consequently 

qualified to declare the sentiments of the people; for if they do not know, 

or are not disposed to speak the sentiments of the people, the people do not 

govern, but the sovereignty is in a few. Now, in a large extended country, 

it is impossible to have a representation, possessing the sentiments, and of 

integrity, to declare the minds of the people, without having it so numerous 

and unwieldly, as to be subject in great measure to the inconveniency of a 

democratic government.



The territory of the United States is of vast extent; it now contains near 

three millions of souls, and is capable of containing much more than ten 

times that number. Is it practicable for a country, so large and so numerous 

as they will soon become, to elect a representation, that will speak their 

sentiments, without their becoming so numerous as to be incapable of 

transacting public business? It certainly is not.



In a republic, the manners, sentiments, and interests of the people should 

be similar. If this be not the case, there will be a constant clashing of 

opinions; and the representatives of one part will be continually striving 

against those of the other. This will retard the operations of government, 

and prevent such conclusions as will promote the public good. If we apply 

this remark to the condition of the United States, we shall be convinced 

that it forbids that we should be one government. The United States includes 

a variety of climates. The productions of the different parts of the union 

are very variant, and their interests, of consequence, diverse. Their 

manners and habits differ as much as their climates and productions; and 

their sentiments are by no means coincident. The laws and customs of the 

several states are, in many respects, very diverse, and in some opposite; 

each would be in favor of its own interests and customs, and, of 

consequence, a legislature, formed of representatives from the respective 

parts, would not only be too numerous to act with any care or decision, but 

would be composed of such heterogenous and discordant principles, as would 

constantly be contending with each other.



The laws cannot be executed in a republic, of an extent equal to that of the 

United States, with promptitude.



The magistrates in every government must be supported in the execution of 

the laws, either by an armed force, maintained at the public expence for 

that purpose; or by the people turning out to aid the magistrate upon his 

command, in case of resistance.



In despotic governments, as well as in all the monarchies of Europe, 

standing armies are kept up to execute the commands of the prince or the 

magistrate, and are employed for this purpose when occasion requires: But 

they have always proved the destruction of liberty, and [are] abhorrent to 

the spirit of a free republic. In England, where they depend upon the 

parliament for their annual support, they have always been complained of as 

oppressive and unconstitutional, and are seldom employed in executing of the 

laws; never except on extraordinary occasions, and then under the direction 

of a civil magistrate.



A free republic will never keep a standing army to execute its laws. It must 

depend upon the support of its citizens. But when a government is to receive 

its support from the aid of the citizens, it must be so constructed as to 

have the confidence, respect, and affection of the people." Men who, upon 

the call of the magistrate, offer themselves to execute the laws, are 

influenced to do it either by affection to the government, or from fear; 

where a standing army is at hand to punish offenders, every man is actuated 

by the latter principle, and therefore, when the magistrate calls, will 

obey: but, where this is not the case, the government must rest for its 

support upon the confidence and respect which the people have for their 

government and laws. The body of the people being attached, the government 

will always be sufficient to support and execute its laws, and to operate 

upon the fears of any faction which may be opposed to it, not only to 

prevent an opposition to the execution of the laws themselves, but also to 

compel the most of them to aid the magistrate; but the people will not be 

likely to have such confidence in their rulers, in a republic so extensive 

as the United States, as necessary for these purposes. The confidence which 

the people have in their rulers, in a free republic, arises from their 

knowing them, from their being responsible to them for their conduct, and 

from the power they have of displacing them when they misbehave: but in a 

republic of the extent of this continent, the people in general would be 

acquainted with very few of their rulers: the people at large would know 

little of their proceedings, and it would be extremely difficult to change 

them. The people in Georgia and New-Hampshire would not know one another's 

mind, and therefore could not act in concert to enable them to effect a 

general change of representatives. The different parts of so extensive a 

country could not possibly be made acquainted with the conduct of their 

representatives, nor be informed of the reasons upon which measures were 

founded. The consequence will be, they will have no confidence in their 

legislature, suspect them of ambitious views, be jealous of every measure 

they adopt, and will not support the laws they pass. Hence the government 

will be nerveless and inefficient, and no way will be left to render it 

otherwise, but by establishing an armed force to execute the laws at the 

point of the bayonet -- a government of all others the most to be dreaded.



In a republic of such vast extent as the United-States, the legislature 

cannot attend to the various concerns and wants of its different parts. It 

cannot be sufficiently numerous to be acquainted with the local condition 

and wants of the different districts, and if it could, it is impossible it 

should have sufficient time to attend to and provide for all the variety of 

cases of this nature, that would be continually arising.



In so extensive a republic, the great officers of government would soon 

become above the controul of the people, and abuse their power to the 

purpose of aggrandizing themselves, and oppressing them. The trust committed 

to the executive offices, in a country of the extent of the United-States, 

must be various and of magnitude. The command of all the troops and navy of 

the republic, the appointment of officers, the power of pardoning offences, 

the collecting of all the public revenues, and the power of expending them, 

with a number of other powers, must be lodged and exercised in every state, 

in the hands of a few. When these are attended with great honor and 

emolument, as they always will be in large states, so as greatly to interest 

men to pursue them, and to be proper objects for ambitious and designing 

men, such men will be ever restless in their pursuit after them. They will 

use the power, when they have acquired it, to the purposes of gratifying 

their own interest and ambition, and it is scarcely possible, in a very 

large republic, to call them to account for their misconduct, or to prevent 

their abuse of power.



These are some of the reasons by which it appears, that a free republic 

cannot long subsist over a country of the great extent of these states. If 

then this new constitution is calculated to consolidate the thirteen states 

into one, as it evidently is, it ought not to be adopted.



Though I am of opinion, that it is a sufficient objection to this 

government, to reject it, that it creates the whole union into one 

government, under the form of a republic, yet if this objection was 

obviated, there are exceptions to it, which are so material and fundamental, 

that they ought to determine every man, who is a friend to the liberty and 

happiness of mankind, not to adopt it. I beg the candid and dispassionate 

attention of my countrymen while I state these objections -- they are such 

as have obtruded themselves upon my mind upon a careful attention to the 

matter, and such as I sincerely believe are well founded. There are many 

objections, of small moment, of which I shall take no notice -- perfection 

is not to be expected in any thing that is the production of man -- and if I 

did not in my conscience believe that this scheme was defective in the 

fundamental principles -- in the foundation upon which a free and equal 

government must rest -- I would hold my peace.



                                                Brutus.



                          II



                    1 November 1787



To the Citizens of the State of New-York.



I flatter myself that my last address established this position, that to 

reduce the Thirteen States into one government, would prove the destruction 

of your liberties.



But lest this truth should be doubted by some, I will now proceed to 

consider its merits.



Though it should be admitted, that the argument[s] against reducing all the 

states into one consolidated government, are not sufficient fully to 

establish this point; yet they will, at least, justify this conclusion, 

that in forming a constitution for such a country, great care should be 

taken to limit and definite its powers, adjust its parts, and guard against 

an abuse of authority. How far attention has been paid to these objects, 

shall be the subject of future enquiry. When a building is to be erected 

which is intended to stand for ages, the foundation should be firmly laid. 

The constitution proposed to your acceptance, is designed not for yourselves 

alone, but for generations yet unborn. The principles, therefore, upon which 

the social compact is founded, ought to have been clearly and precisely 

stated, and the most express and full declaration of rights to have been 

made -- But on this subject there is almost an entire silence.



If we may collect the sentiments of the people of America, from their own 

most solemn declarations, they hold this truth as self evident, that all men 

are by nature free. No one man, therefore, or any class of men, have a 

right, by the law of nature, or of God, to assume or exercise authority over 

their fellows. The origin of society then is to be sought, not in any 

natural right which one man has to exercise authority over another, but in 

the united consent of those who associate. The mutual wants of men, at first 

dictated the propriety of forming societies; and when they were established, 

protection and defence pointed out the necessity of instituting government. 

In a state of nature every individual pursues his own interest; in this 

pursuit it frequently happened, that the possessions or enjoyments of one 

were sacrificed to the views and designs of another; thus the weak were a 

prey to the strong, the simple and unwary were subject to impositions from 

those who were more crafty and designing. In this state of things, every 

individual was insecure; common interest therefore directed, that government 

should be established, in which the force of the whole community should be 

collected, and under such directions, as to protect and defend every one who 

composed it. The common good, therefore, is the end of civil government, and 

common consent, the foundation on which it is established. To effect this 

end, it was necessary that a certain portion of natural liberty should be 

surrendered, in order, that what remained should be preserved: how great a 

proportion of natural freedom is necessary to be yielded by individuals, 

when they submit to government, I shall not now enquire. So much, however, 

must be given up, as will be sufficient to enable those, to whom the 

administration of the government is committed, to establish laws for the 

promoting the happiness of the community, and to carry those laws into 

effect. But it is not necessary, for this purpose, that individuals should 

relinquish all their natural rights. Some are of such a nature that they 

cannot be surrendered. Of this kind are the rights of conscience, the right 

of enjoying and defending life, etc. Others are not necessary to be resigned, 

in order to attain the end for which government is instituted, these 

therefore ought not to be given up. To surrender them, would counteract the 

very end of government, to wit, the common good. From these observations it 

appears, that in forming a government on its true principles, the foundation 

should be laid in the manner I before stated, by expressly reserving to the 

people such of their essential natural rights, as are not necessary to be 

parted with. The same reasons which at first induced mankind to associate 

and institute government, will operate to influence them to observe this 

precaution. If they had been disposed to conform themselves to the rule of 

immutable righteousness, government would not have been requisite. It was 

because one part exercised fraud, oppression, and violence on the other, 

that men came together, and agreed that certain rules should be formed, to 

regulate the conduct of all, and the power of the whole community lodged in 

the hands of rulers to enforce an obedience to them. But rulers have the 

same propensities as other men; they are as likely to use the power with 

which they are vested for private purposes, and to the injury and oppression 

of those over whom they are placed, as individuals in a state of nature are 

to injure and oppress one another. It is therefore as proper that bounds 

should be set to their authority, as that government should have at first 

been instituted to restrain private injuries.



This principle, which seems so evidently founded in the reason and nature of 

things, is confirmed by universal experience. Those who have governed, have 

been found in all ages ever active to enlarge their powers and abridge the 

public liberty. This has induced the people in all countries, where any 

sense of freedom remained, to fix barriers against the encroachments of 

their rulers. The country from which we have derived our origin, is an 

eminent example of this. Their magna charta and bill of rights have long 

been the boast, as well as the security, of that nation. I need say no more, 

I presume, to an American, than, that this principle is a fundamental one, 

in all the constitutions of our own states; there is not one of them but 

what is either founded on a declaration or bill of rights, or has certain 

express reservation of rights interwoven in the body of them. From this it 

appears, that at a time when the pulse of liberty beat high and when an 

appeal was made to the people to form constitutions for the government of 

themselves, it was their universal sense, that such declarations should make 

a part of their frames of government. It is therefore the more astonishing, 

that this grand security, to the rights of the people, is not to be found in 

this constitution.



It has been said, in answer to this objection, that such declaration[s] of 

rights, however requisite they might be in the constitutions of the states, 

are not necessary in the general constitution, because, "in the former case, 

every thing which is not reserved is given, but in the latter the reverse of 

the proposition prevails, and every thing which is not given is reserved." 

It requires but little attention to discover, that this mode of reasoning is 

rather specious than solid. The powers, rights, and authority, granted to 

the general government by this constitution, are as complete, with respect 

to every object to which they extend, as that of any state government -- It 

reaches to every thing which concerns human happiness -- Life, liberty, and 

property, are under its controul. There is the same reason, therefore, that 

the exercise of power, in this case, should be restrained within proper 

limits, as in that of the state governments. To set this matter in a clear 

light, permit me to instance some of the articles of the bills of rights of 

the individual states, and apply them to the case in question.



For the security of life, in criminal prosecutions, the bills of rights of 

most of the states have declared, that no man shall be held to answer for a 

crime until he is made fully acquainted with the charge brought against him; 

he shall not be compelled to accuse, or furnish evidence against himself -- 

The witnesses against him shall be brought face to face, and he shall be 

fully heard by himself or counsel. That it is essential to the security of 

life and liberty, that trial of facts be in the vicinity where they happen. 

Are not provisions of this kind as necessary in the general government, as 

in that of a particular state? The powers vested in the new Congress extend 

in many cases to life; they are authorised to provide for the punishment of 

a variety of capital crimes, and no restraint is laid upon them in its 

exercise, save only, that "the trial of all crimes, except in cases of 

impeachment, shall be by jury; and such trial shall be in the state where 

the said crimes shall have been committed." No man is secure of a trial in 

the county where he is charged to have committed a crime; he may be brought 

from Niagara to New-York, or carried from Kentucky to Richmond for trial for 

an offence, supposed to be committed. What security is there, that a man 

shall be furnished with a full and plain description of the charges against 

him? That he shall be allowed to produce all proof he can in his favor? That 

he shall see the witnesses against him face to face, or that he shall be 

fully heard in his own defence by himself or counsel?



For the security of liberty it has been declared, "that excessive bail 

should not be required, nor excessive fines imposed, nor cruel or unusual 

punishments inflicted -- That all warrants, without oath or affirmation, to 

search suspected places, or seize any person, his papers or property, are 

grievous and oppressive."



These provisions are as necessary under the general government as under that 

of the individual states; for the power of the former is as complete to the 

purpose of requiring bail. imposing fines, inflicting punishments, granting 

search warrants, and seizing persons, papers, or property, in certain cases, 

as the other.



For the purpose of securing the property of the citizens, it is declared by 

all the states, "that in all controversies at law, respecting property, the 

ancient mode of trial by jury is one of the best securities of the rights of 

the people, and ought to remain sacred and inviolable."



Does not the same necessity exist of reserving this right, under this 

national compact, as in that of these states? Yet nothing is said respecting 

it. In the bills of rights of the states it is declared, that a well 

regulated militia is the proper and natural defence of a free government -- 

That as standing armies in time of peace are dangerous, they are not to be 

kept up, and that the military should be kept under strict subordination to, 

and controuled by the civil power.



The same security is as necessary in this constitution, and much more so; 

for the general government will have the sole power to raise and to pay 

armies, and are under no controul in the exercise of it; yet nothing of this 

is to be found in this new system.



I might proceed to instance a number of other rights, which were as 

necessary to be reserved, such as, that elections should be free, that the 

liberty of the press should be held sacred; but the instances adduced, are 

sufficient to prove, that this argument is without foundation. -- Besides, 

it is evident, that the reason here assigned was not the true one, why the 

framers of this constitution omitted a bill of rights; if it had been, they 

would not have made certain reservations, while they totally omitted others 

of more importance. We find they have, in the 9th section of the 1st 

article, declared, that the writ of habeas corpus shall not be suspended, 

unless in cases of rebellion -- that no bill of attainder, or expost facto 

law, shall be passed -- that no title of nobility shall be granted by the 

United States, &c. If every thing which is not given is reserved, what 

propriety is there in these exceptions? Does this constitution any where 

grant the power of suspending the habeas corpus, to make expost facto laws, 

pass bills of attainder, or grant titles of nobility? It certainly does not 

in express terms. The only answer that can be given is, that these are 

implied in the general powers granted. With equal truth it may be said, that 

all the powers, which the bills of right, guard against the abuse of, are 

contained or implied in the general ones granted by this constitution.



So far it is from being true, that a bill of rights is less necessary in 

the general constitution than in those of the states, the contrary is 

evidently the fact. -- This system, if it is possible for the people of 

America to accede to it, will be an original compact: and being the last, 

will, in the nature of things, vacate every former agreement inconsistent 

with it. For it being a plan of government received and ratified by the 

whole people, all other forms, which are in existence at the time of its 

adoption, must yield to it. This is expressed in positive and unequivocal 

terms, in the 6th article, "That this constitution and the laws of the 

United States, which shall be made in pursuance thereof, and all treaties 

made, or which shall be made, under the authority of the United States, 

shall be the supreme law of the land; and the judges in every state shall be 

bound thereby, any thing in the constitution, or laws of any state, to the 

contrary notwithstanding.



"The senators and representatives before-mentioned, and the members of the 

several state legislatures, and all executive and judicial officers, both of 

the United States, and of the several states, shall be bound, by oath or 

affirmation, to support this constitution."



It is therefore not only necessarily implied thereby, but positively 

expressed. that the different state constitutions are repealed and entirely 

done away. so far as they are inconsistent with this, with the laws which 

shall be made in pursuance thereof, or with treaties made. or which shall be 

made, under the authority of the United States; of what avail will the 

constitutions of the respective states be to preserve the rights of its 

citizens? should they be plead, the answer would be. the constitution of the 

United States, and the laws made in pursuance thereof, is the supreme law, 

and all legislatures and judicial officers, whether of the general or state 

governments, are bound by oath to support it. No priviledge, reserved by the 

bills of rights, or secured by the state government, can limit the power 

granted by this, or restrain any laws made in pursuance of it. It stands 

therefore on its own bottom, and must receive a construction by itself 

without any reference to any other -- And hence it was of the highest 

importance, that the most precise and express declarations and reservations 

of rights should have been made.



This will appear the more necessary, when it is considered, that not only 

the constitution and laws made in pursuance thereof, but all treaties made, 

or which shall be made, under the authority of the United States, are the 

supreme law of the land, and supersede the constitutions of all the states. 

The power to make treaties, is vested in the president, by and with the 

advice and consent of two thirds of the senate. I do not find any 

limitation, or restriction, to the exercise of this power. The most 

important article in any constitution may therefore be repealed, even 

without a legislative act. Ought not a government, vested with such 

extensive and indefinite authority. to have been restricted by a declaration 

of rights? It certainly ought.



So clear a point is this, that I cannot help suspecting, that persons who 

attempt to persuade people, that such reservations were less necessary under 

this constitution than under those of the states, are wilfully endeavouring 

to deceive, and to lead you into an absolute state of vassalage.



                                                Brutus.



                         III



                   15 November 1787



To the Citizens of the State of New-York.



In the investigation of the constitution, under your consideration, great 

care should be taken, that you do not form your opinions respecting it, from 

unimportant provisions, or fallacious appearances.



On a careful examination, you will find, that many of its parts, of little 

moment, are well formed; in these it has a specious resemblance of a free 

government -- but this is not sufficient to justify the adoption of it -- 

the gilded pill, is often found to contain the most deadly poison.



You are not however to expect, a perfect form of government, any more than 

to meet with perfection in man: your views therefore, ought to be directed 

to the main pillars upon which a free government is to rest; if these are 

well placed, on a foundation that will support the superstructure, you 

should be satisfied, although the building may want a number of ornaments, 

which, if your particular tastes were gratified, you would have added to it: 

on the other hand. if the foundation is insecurely laid. and the main 

supports are wanting, or not properly fixed, however the fabric may be 

decorated and adorned, you ought to reject it.



Under these impressions, it has been my object to turn your attention to the 

principal defects in this system.



I have attempted to shew, that a consolidation of this extensive continent, 

under one government, for internal, as well as external purposes, which is 

evidently the tendency of this constitution, cannot succeed, without a 

sacrifice of your liberties; and therefore that the attempt is not only 

preposterous, but extremely dangerous; and I have shewn, independent of 

this, that the plan is radically defective in a fundamental principle, which 

ought to be found in every free government; to wit, a declaration of rights.



I shall now proceed to take a nearer view of this system, to examine its 

parts more minutely, and shew that the powers are not properly deposited, 

for the security of public liberty.



The first important object that presents itself in the organization of this 

government, is the legislature. This is to be composed of two branches; the 

first to be called the general assembly, and is to be chosen by the people 

of the respective states, in proportion to the number of their inhabitants, 

and is to consist of sixty five members, with powers in the legislature to 

encrease the number, not to exceed one for every thirty thousand 

inhabitants. The second branch is to be called the senate, and is to consist 

of twenty-six members, two of which are to be chosen by the legislatures of 

each of the states.



In the former of these there is an appearance of justice, in the appointment 

of its members -- but if the clause, which provides for this branch, be 

stripped of its ambiguity, it will be found that there is really no equality 

of representation, even in this house.



The words are "representatives and direct taxes, shall be apportioned among 

the several states, which may be included in this union, according to their 

respective numbers, which shall be determined by adding to the whole number 

of free persons, including those bound to service for a term of years, and 

excluding Indians not taxed, three fifths of all other persons." -- What a 

strange and unnecessary accumulation of words are here used to conceal from 

the public eye. what might have been expressed in the following concise 

manner. Representatives are to be proportioned among the states 

respectively, according to the number of freemen and slaves inhabiting them, 

counting five slaves for three free men.



"In a free state." says the celebrated Montesquieu, "every man. who is 

supposed to be a free agent, ought to be concerned in his own government. 

therefore the legislature should reside in the whole body of the people, or 

their representatives." But it has never been alledged that those who are 

not free agents, can, upon any rational principle, have any thing to do in 

government, either by themselves or others. If they have no share in 

government. why is the number of members in the assembly, to be increased on 

their account? Is it because in some of the states, a considerable part of 

the property of the inhabitants consists in a number of their fellow men, 

who are held in bondage, in defiance of every idea of benevolence, justice, 

and religion, and contrary to all the principles of liberty, which have been 

publickly avowed in the late glorious revolution? If this be a just ground 

for representation, the horses in some of the states, and the oxen in 

others, ought to be represented -- for a great share of property in some of 

them. consists in these animals; and they have as much controul over their 

own actions, as these poor unhappy creatures, who are intended to be 

described in the above recited clause, by the words, "all other persons." By 

this mode of apportionment, the representatives of the different pans of the 

union, will be extremely unequal: in some of the southern states, the slaves 

are nearly equal in number to the free men; and for all these slaves, they 

will be entitled to a proportionate share in the legislature -- this will 

give them an unreasonable weight in the government, which can derive no 

additional strength, protection, nor defence from the slaves, but the 

contrary. Why then should they be represented? What adds to the evil is, 

that these states are to be permitted to continue the inhuman traffic of 

importing slaves, until the year 1808 -- and for every cargo of these 

unhappy people, which unfeeling. unprincipled, barbarous, and avaricious 

wretches, may tear from their country, friends and tender connections, and 

bring into those states, they are to be rewarded by having an increase of 

members in the general assembly.



There appears at the first view a manifest inconsistency, in the 

apportionment of representatives in the senate, upon the plan of a 

consolidated government. On every principle of equity, and propriety, 

representation in a government should be in exact proportion to the numbers, 

or the aids afforded by the persons represented. How unreasonable, and 

unjust then is it. that Delaware should have a representation in the senate, 

equal to Massachusetts, or Virginia? The latter of which contains ten times 

her numbers. and is to contribute to the aid of the general government in 

that proportion? This article of the constitution will appear the more 

objectionable, if it is considered, that the powers vested in this branch of 

the legislature are very extensive, and greatly surpass those lodged in the 

assembly, not only for general purposes, but. in many instances, for the 

internal police of the states. The Other branch of the legislature, in 

which, if in either, a f[a]int spark of democracy is to be found, should 

have been properly organized and established -- but upon examination you 

will find, that this branch does not possess the qualities of a just 

representation, and that there is no kind of security, imperfect as it is. 

for its remaining in the hands of the people. 



It has been observed, that the happiness of society is the end of government 

-- that every free government is founded in compact: and that, because it is 

impracticable for the whole community to assemble, or when assembled, to 

deliberate with wisdom, and decide with dispatch, the mode of legislating by 

representation was devised.



The very term, representative, implies, that the person or body chosen for 

this purpose, should resemble those who appoint them -- a representation of 

the people of America, if it be a true one, must be like the people. It 

ought to be so constituted, that a person, who is a stranger to the country, 

might be able to form a just idea of their character, by knowing that of 

their representatives. They are the sign -- the people are the thing 

signified. It is absurd to speak of one thing being the representative of 

another, upon any other principle. The ground and reason of representation, 

in a free government, implies the same thing. Society instituted government 

to promote the happiness of the whole, and this is the great end always in 

view in the delegation of powers. It must then have been intended, that 

those who are placed instead of the people, should possess their sentiments 

and feelings, and be governed by their interests, or, in other words, should 

bear the strongest resemblance of those in whose room they are substituted. 

It is obvious, that for an assembly to be a true likeness of the people of 

any country, they must be considerably numerous. -- One man. or a few men, 

cannot possibly represent the feelings, opinions, and characters of a great 

multitude. In this respect, the new constitution is radically defective. -- 

The house of assembly, which is intended as a representation of the people 

of America, will not, nor cannot, in the nature of things, be a proper one 

-- sixty-five men cannot be found in the United States, who hold the 

sentiments, possess the feelings, or are acqainted with the wants and 

interests of this vast country. This extensive continent is made up of a 

number of different classes of people; and to have a proper representation 

of them. each class ought to have an opportunity of choosing their best 

informed men for the purpose; but this cannot possibly be the case in so 

small a number. The state of New-York, on the present apportionment, will 

send six members to the assembly: I will venture to affirm, that number 

cannot be found in the state, who will bear a just resemblance to the 

several classes of people who compose it. In this assembly, the farmer, 

merchant, mecanick. and other various orders of people, ought to be 

represented according to their respective weight and numbers; and the 

representatives ought to be intimately acquainted with the wants, understand 

the interests of the several orders in the society, and feel a proper sense 

and becoming zeal to promote their prosperity. I cannot conceive that any 

six men in this state can be found properly qualified in these respects to 

discharge such important duties: but supposing it possible to find them, is 

there the least degree of probability that the choice of the people will 

fall upon such men? According to the common course of human affairs, the 

natural aristocracy of the country will be elected. Wealth always creates 

influence, and this is generally much increased by large family connections: 

this class in society will for ever have a great number of dependents; 

besides, they will always favour each other -- it is their interest to 

combine -- they will therefore constantly unite their efforts to procure men 

of their own rank to be elected -- they will concenter all their force in 

every part of the state into one point, and by acting together, will most 

generally carry their election. It is probable, that but few of the 

merchants, and those the most opulent and ambitious, will have a 

representation from their body -- few of them are characters sufficiently 

conspicuous to attract the notice of the electors of the state in so limited 

a representation. The great body of the yeomen of the country cannot expect 

any of their order in this assembly -- the station will be too elevated for 

them to aspire to -- the distance between the people and their 

representatives, will be so very great, that there is no probability that a 

farmer, however respectable, will be chosen -- the mechanicks of every 

branch, must expect to be excluded from a seat in this Body -- It will and 

must be esteemed a station too high and exalted to be filled by any but the 

first men in the state, in point of fortune; so that in reality there will 

be no part of the people represented, but the rich, even in that branch of 

the legislature, which is called the democratic. -- The well born, and 

highest orders in life, as they term themselves, will be ignorant of the 

sentiments of the midling class of citizens, strangers to their ability, 

wants, and difficulties, and void of sympathy, and fellow feeling. This 

branch of the legislature will not only be an imperfect representation, but 

there will be no security in so small a body, against bribery, and 

corruption -- It will consist at first, of sixty-five, and can never exceed 

one for every thirty thousand inhabitants; a majority of these, that is, 

thirty-three, are a quorum, and a majority of which, or seventeen, may pass 

any law -- so that twenty-five men, will have the power to give away all the 

property of the citizens of these states -- what security therefore can 

there be for the people, where their liberties and property are at the 

disposal of so few men? It will literally be a government in the hands of 

the few to oppress and plunder the many. You may conclude with a great 

degree of certainty, that it, like all others of a similar nature, will be 

managed by influence and corruption, and that the period is not far distant, 

when this will be the case, if it should be adopted; for even now there are 

some among us, whose characters stand high in the public estimation, and who 

have had a principal agency in framing this constitution, who do not scruple 

to say, that this is the only practicable mode of governing a people, who 

think with that degree of freedom which the Americans do -- this government 

will have in their gift a vast number of offices of great honor and 

emolument. The members of the legislature are not excluded from 

appointments; and twenty-five of them, as the case may be, being secured, 

any measure may be carried.



The rulers of this country must be composed of very different materials from 

those of any other, of which history gives us any account, if the majority 

of the legislature are not, before many years, entirely at the devotion of 

the executive -- and these states will soon be under the absolute domination 

of one, or a few, with the fallacious appearance of being governed by men of 

their own election.



The more I reflect on this subject, the more firmly am I persuaded, that the 

representation is merely nominal -- a mere burlesque; and that no security 

is provided against corruption and undue influence. No free people on earth, 

who have elected persons to legislate for them, ever reposed that confidence 

in so small a number. The British house of commons consists of five hundred 

and fifty-eight members; the number of inhabitants in Great-Britain, is 

computed at eight millions -- this gives one member for a little more than 

fourteen thousand, which exceeds double the proportion this country can ever 

have: and yet we require a larger representation in proportion to our 

numbers, than Great-Britain, because this country is much more extensive, 

and differs more in its productions, interests, manners, and habits. The 

democratic branch of the legislatures of the several states in the union 

consists, I believe at present, of near two thousand; and this number was 

not thought too large for the security of liberty by the framers of our 

state constitutions: some of the states may have erred in this respect, but 

the difference between two thousand, and sixty-five, is so very great, that 

it will bear no comparison.



Other objections offer themselves against this part of the constitution -- I 

shall reserve them for a future paper, when I shall shew, defective as this 

representation is, no security is provided, that even this shadow of the 

right, will remain with the people.



                                                Brutus.



                         IV



                   29 November 1787



To the People of the State of New-York.



There can be no free government where the people are not possessed of the 

power of making the laws by which they are governed, either in their own 

persons, or by others substituted in their stead.



Experience has taught mankind, that legislation by representatives is the 

most eligible, and the only practicable mode in which the people of any 

country can exercise this right, either prudently or beneficially. But 

then, it is a matter of the highest importance, in forming this 

representation, that it be so constituted as to be capable of understanding 

the true interests of the society for which it acts, and so disposed as to 

pursue the good and happiness of the people as its ultimate end. The object 

of every free government is the public good, and all lesser interests yield 

to it. That of every tyrannical government, is the happiness and 

aggrandisement of one, or a few, and to this the public felicity, and every 

other interest must submit. -- The reason of this difference in these 

governments is obvious. The first is so constituted as to collect the views 

and wishes of the whole people in that of their rulers, while the latter is 

so framed as to separate the interests of the governors from that of the 

governed. The principle of self love, therefore, that will influence the one 

to promote the good of the whole, will prompt the other to follow its own 

private advantage. The great art, therefore, in forming a good constitution, 

appears to be this, so to frame it, as that those to whom the power is 

committed shall be subject to the same feelings, and aim at the same objects 

as the people do, who transfer to them their authority. There is no possible 

way to effect this but by an equal, full and fair representation; this, 

therefore, is the great desideratum in politics. However fair an appearance 

any government may make, though it may possess a thousand plausible articles 

and be decorated with ever so many ornaments, yet if it is deficient in this 

essential principle of a full and just representation of the people, it 

will be only like a painted sepulcher -- For, without this it cannot be a 

free government; let the administration of it be good or ill, it still will 

be a government, not according to the will of the people, but according to 

the will of a few.



To test this new constitution then, by this principle, is of the last 

importance -- It is to bring it to the touch-stone of national liberty, and 

I hope I shall be excused, if, in this paper. I pursue the subject commenced 

in my last number, to wit, the necessity of an equal and full representation 

in the legislature. -- In that, I showed that it was not equal, because the 

smallest states are to send the same number of members to the senate as the 

largest, and, because the slaves, who afford neither aid or defence to the 

government, are to encrease the proportion of members. To prove that it was 

not a just or adequate representation, it was urged, that so small a number 

could not resemble the people, or possess their sentiments and dispositions. 

That the choice of members would commonly fall upon the rich and great, 

while the middling class of the community would be excluded. That in so small 

a representation there was no security against bribery and corruption.



The small number which is to compose this legislature, will not only expose 

it to the danger of that kind of corruption, and undue influence. which will 

arise from the gift of places of honor and emolument, or the more direct one 

of bribery, but it will also subject it to another kind of influence no less 

fatal to the liberties of the people, though it be not so flagrantly 

repugnant to the principles of rectitude. It is not to be expected that a 

legislature will be found in any country that will not have some of its 

members, who will pursue their private ends. and for which they will 

sacrifice the public good. Men of this character are, generally, artful and 

designing, and frequently possess brilliant talents and abilities; they 

commonly act in concert, and agree to share the spoils of their country 

among them; they will keep their object ever in view, and follow it with 

constancy. To effect their purpose, they will assume any shape, and, Proteus 

like. mould themselves into any form -- where they find members proof 

against direct bribery or gifts of offices, they will endeavor to mislead 

their minds by specious and false reasoning, to impose upon their 

unsuspecting honesty by an affectation of zeal for the public good; they 

will form juntos, and hold out-door meetings; they will operate upon the 

good nature of their opponents, by a thousand little attentions, and teize 

them into compliance by the earnestness of solicitation. Those who are 

acquainted with the manner of conducting business in public assemblies, know 

how prevalent art and address are in carrying a measure, even over men of 

the best intentions, and of good understanding. The firmest security against 

this kind of improper and dangerous influence, as well as all other, is a 

strong and numerous representation: in such a house of assembly, so great a 

number must be gained over, before the private views of individuals could be 

gratified that there could be scarce a hope of success. But in the foederal 

assembly, seventeen men are all that is necessary to pass a law. It is 

probable, it will seldom happen that more than twenty-five will be requisite 

to form a majority, when it is considered what a number of places of honor 

and emolument will be in the gift of the executive, the powerful influence 

that great and designing men have over the honest and unsuspecting, by their 

art and address, their soothing manners and civilities, and their cringing 

flattery, joined with their affected patriotism; when these different 

species of influence are combined, it is scarcely to be hoped that a 

legislature, composed of so small a number, as the one proposed by the new 

constitution, will long resist their force.



A farther objection against the feebleness of the representation is. that it 

will not possess the confidence of the people. The execution of the laws in 

a free government must rest on this confidence, and this must be founded on 

the good opinion they entertain of the framers of the laws. Every government 

must be supported, either by the people having such an attachment to it, as 

to be ready, when called upon, to support it, or by a force at the command 

of the government, to compel obedience. The latter mode destroys every idea 

of a free government; for the same force that may be employed to compel 

obedience to good laws, might, and probably would be used to wrest from the 

people their constitutional liberties. -- Whether it is practicable to have 

a representation for the whole union sufficiently numerous to obtain that 

confidence which is necessary for the purpose of internal taxation, and 

other powers to which this proposed government extends, is an important 

question. I am clearly of opinion, it is not, and therefore I have stated 

this in my first number, as one of the reasons against going into an entire 

consolidation of the states -- one of the most capital errors in the system, 

is that of extending the powers of the foederal government to objects to 

which it is not adequate, which it cannot exercise without endangering 

public liberty, and which it is not necessary they should possess, in order 

to preserve the union and manage our national concerns; of this, however, I 

shall treat more fully in some future paper -- But, however this may be. 

certain it is, that the representation in the legislature is not so formed 

as to give reasonable ground for public trust.



In order for the people safely to repose themselves on their rulers, they 

should not only be of their own choice. But it is requisite they should be 

acquainted with their abilities to manage the public concerns with wisdom. 

They should be satisfied that those who represent them are men of integrity, 

who will pursue the good of the community with fidelity; and will not be 

turned aside from their duty by private interest, or corrupted by undue 

influence; and that they will have such a zeal for the good of those whom 

they represent, as to excite them to be diligent in their service; but it is 

impossible the people of the United States should have sufficient knowledge 

of their representatives, when the numbers are so few, to acquire any 

rational satisfaction on either of these points. The people of this state 

will have very little acquaintance with those who may be chosen to represent 

them; a great part of them will, probably, not know the characters of their 

own members, much less that of a majority of those who will compose the 

foederal assembly; they will consist of men, whose names they have never 

heard, and whose talents and regard for the public good, they are total 

strangers to; and they will have no persons so immediately of their choice 

so near them, of their neighbours and of their own rank in life, that they 

can feel themselves secure in trusting their interests in their hands. The 

representatives of the people cannot, as they now do, after they have passed 

laws, mix with the people, and explain to them the motives which induced the 

adoption of any measure, point out its utility, and remove objections or 

silence unreasonable clamours against it. -- The number will be so small 

that but a very few of the most sensible and respectable yeomanry of the 

country can ever have any knowledge of them: being so far removed from the 

people, their station will be elevated and important, and they will be 

considered as ambitious and designing. They will not be viewed by the people 

as part of themselves, but as a body distinct from them, and having separate 

interests to pursue; the consequence will be, that a perpetual jealousy will 

exist in the minds of the people against them; their conduct will be 

narrowly watched; their measures scrutinized; and their laws opposed, 

evaded, or reluctantly obeyed. This is natural, and exactly corresponds with 

the conduct of individuals towards those in whose hands they intrust 

important concerns. If the person confided in, be a neighbour with whom his 

employer is intimately acquainted, whose talents, he knows, are sufficient 

to manage the business with which he is charged, his honesty and fidelity 

unsuspected, and his friendship and zeal for the service of this principal 

unquestionable, he will commit his affairs into his hands with unreserved 

confidence, and feel himself secure; all the transactions of the agent will 

meet with the most favorable construction, and the measures he takes will 

give satisfaction. But, if the person employed be a stranger, whom he has 

never seen, and whose character for ability or fidelity he cannot fully 

learn -- If he is constrained to choose him, because it was not in his power 

to procure one more agreeable to his wishes, he will trust him with caution, 

and be suspicious of all his conduct.



If then this government should not derive support from the good will of the 

people, it must be executed by force, or not executed at all; either case 

would lead to the total destruction of liberty. -- The convention seemed 

aware of this, and have therefore provided for calling out the militia to 

execute the laws of the union. If this system was so framed as to command 

that respect from the people, which every good free government will obtain, 

this provision was unnecessary -- the people would support the civil 

magistrate. This power is a novel one, in free governments -- these have 

depended for the execution of the laws on the Posse Comitatus, and never 

raised an idea, that the people would refuse to aid the civil magistrate in 

executing those laws they themselves had made. I shall now dismiss the 

subject of the incompetency of the representation, and proceed, as I 

promised, to shew, that, impotent as it is, the people have no security that 

they will enjoy the exercise of the right of electing this assembly, which, 

at best, can be considered but as the shadow of representation.



By section 4, article I, the Congress are authorized, at any time, by law, 

to make, or alter, regulations respecting the time, place, and manner of 

holding elections for senators and representatives, except as to the places 

of choosing senators. By this clause the right of election itself, is, in a 

great measure, transferred from the people to their rulers. -- One would 

think, that if any thing was necessary to be made a fundamental article of 

the original compact, it would be, that of fixing the branches of the 

legislature, so as to put it out of its power to alter itself by modifying 

the election of its own members at will and pleasure. When a people once 

resign the privilege of a fair election, they clearly have none left worth 

contending for.



It is clear that, under this article, the foederal legislature may 

institute such rules respecting elections as to lead to the choice of one 

description of men. The weakness of the representation, tends but too 

certainly to confer on the rich and well-born, all honours; but the power 

granted in this article, may be so exercised, as to secure it almost beyond 

a possibility of controul. The proposed Congress may make the whole state 

one district, and direct, that the capital (the city of New-York, for 

instance) shall be the place for holding the election; the consequence would 

be, that none but men of the most elevated rank in society would attend, and 

they would as certainly choose men of their own class; as it is true what 

the Apostle Paul saith, that "no man ever yet hated his own flesh, but 

nourisheth and cherisheth it." -- They may declare that those members who 

have the greatest number of votes, shall be considered as duly elected; the 

consequence would be that the people, who are dispersed in the interior 

parts of the state, would give their votes for a variety of candidates, 

while any order, or profession, residing in populous places, by uniting 

their interests, might procure whom they pleased to be chosen -- and by this 

means the representatives of the state may be elected by one tenth part of 

the people who actually vote. This may be effected constitutionally, and by 

one of those silent operations which frequently takes place without being 

noticed, but which often produces such changes as entirely to alter a 

government, subvert a free constitution, and rivet the chains on a free 

people before they perceive they are forged. Had the power of regulating 

elections been left under the direction of the state legislatures, where the 

people are not only nominally but substantially represented, it would have 

been secure; but if it was taken out of their hands, it surely ought to have 

been fixed on such a basis as to have put it out of the power of the 

foederal legislature to deprive the people of it by law. Provision should 

have been made for marking out the states into districts, and for choosing, 

by a majority of votes, a person out of each of them of permanent property 

and residence in the district which he was to represent.



If the people of America will submit to a constitution that will vest in 

the hands of any body of men a right to deprive them by law of the privilege 

of a fair election, they will submit to almost any thing. Reasoning with 

them will be in vain, they must be left until they are brought to reflection 

by feeling oppression -- they will then have to wrest from their oppressors, 

by a strong hand. that which they now possess, and which they may retain if 

they will exercise but a moderate share of prudence and firmness.



I know it is said that the dangers apprehended from this clause are merely 

imaginary, that the proposed general legislature will be disposed to 

regulate elections upon proper principles, and to use their power with 

discretion, and to promote the public good. On this, I would observe, that 

constitutions are not so necessary to regulate the conduct of good rulers as 

to restrain that of bad ones. -- Wise and good men will exercise power so as 

to promote the public happiness under any form of government. If we are to 

take it for granted, that those who administer the government under this 

system, will always pay proper attention to the rights and interests of the 

people, nothing more was necessary than to say who should be invested with 

the powers of government, and leave them to exercise it at will and 

pleasure. Men are apt to be deceived both with respect to their own 

dispositions and those of others. Though this truth is proved by almost 

every page of the history of nations, to wit, that power, lodged in the 

hands of rulers to be used at discretion, is almost always exercised to the 

oppression of the people, and the aggrandizement of themselves; yet most men 

think if it was lodged in their hands they would not employ it in this 

manner. -- Thus when the prophet Elisha told Hazael, "I know the evil that 

thou wilt do unto the children of Israel; their strong holds wilt thou set 

on fire, and their young men, wilt thou slay with the sword, and wilt dash 

their children, and rip up their women with child." Hazael had no idea that 

he ever should be guilty of such horrid cruelty, and said to the prophet, 

"Is thy servant a dog that he should do this great thing." Elisha answered, 

"The Lord hath shewed me that thou shalt be king of Syria." The event 

proved, that Hazael only wanted an opportunity to perpetrate these 

enormities without restraint, and he had a disposition to do them, though he 

himself knew it not.



                                                Brutus.



                          V



                   13 December 1787



To the People of the State of New-York.



It was intended in this Number to have prosecuted the enquiry into the 

organization of this new system; particularly to have considered the 

dangerous and premature union of the President and Senate, and the mixture 

of legislative, executive, and judicial powers in the Senate.



But there is such an intimate connection between the several branches in 

whom the different species of authority is lodged, and the powers with which 

they are invested, that on reflection it seems necessary first to proceed to 

examine the nature and extent of the powers granted to the legislature.



This enquiry will assist us the better to determine, whether the legislature 

is so constituted, as to provide proper checks and restrictions for the 

security of our rights, and to guard against the abuse of power -- For the 

means should be suited to the end; a government should be framed with a view 

to the objects to which it extends: if these be few in number, and of such a 

nature as to give but small occasion or opportunity to work oppression in 

the exercise of authority, there will be less need of a numerous 

representation, and special guards against abuse, than if the powers of the 

government are very extensive, and include a great variety of cases. It will 

also be found necessary to examine the extent of these powers, in order to 

form a just opinion how far this system can be considered as a 

confederation, or a consolidation of the states. Many of the advocates for, 

and most of the opponents to this system, agree that the form of government 

most suitable for the United States, is that of a confederation. The idea of 

a confederated government is that of a number of independent states entering 

into a compact, for the conducting certain general concerns, in which they 

have a common interest, leaving the management of their internal and local 

affairs to their separate governments. But whether the system proposed is of 

this nature cannot be determined without a strict enquiry into the powers 

proposed to be granted. 



This constitution considers the people of the several states as one body 

corporate, and is intended as an original compact, it will therefore 

dissolve all contracts which may be inconsistent with it. This not only 

results from its nature, but is expressly declared in the 6th article of 

it. The design of the constitution is expressed in the preamble, to be, "in 

order to form a more perfect union, to establish justice, insure domestic 

tranquility, provide for the common defence, promote the general welfare, 

and secure the blessings of liberty to ourselves and posterity." These are 

the ends this government is to accomplish, and for which it is invested with 

certain powers, among these is the power "to make all laws which are 

necessary and proper for carrying into execution the foregoing powers, and 

all other powers vested by this constitution in the government of the United 

States, or in any department or officer thereof." It is a rule in construing 

a law to consider the objects the legislature had in view in passing it, and 

to give it such an explanation as to promote their intention. The same rule 

will apply in explaining a constitution. The great objects then are declared 

in this preamble in general and indefinite terms to be to provide for the 

common defence, promote the general welfare, and an express power being 

vested in the legislature to make all laws which shall be necessary and 

proper for carrying into execution all the powers vested in the general 

government. The inference is natural that the legislature will have an 

authority to make all laws which they shall judge necessary for the common 

safety, and to promote the general welfare. This amounts to a power to make 

laws at discretion: No terms can be found more indefinite than these, and it 

is obvious, that the legislature alone must judge what laws are proper and 

necessary for the purpose. It may be said, that this way of explaining the 

constitution, is torturing and making it speak what it never intended. This 

is far from my intention, and I shall not even insist upon this implied 

power, but join issue with those who say we are to collect the idea of the 

powers given from the express words of the clauses granting them; and it 

will not be difficult to shew that the same authority is expressly given 

which is supposed to be implied in the forgoing paragraphs.



In the 1st article, 8th section, it is declared, "that Congress shall have 

power to lay and collect taxes, duties, imposts and excises, to pay the 

debts, and provide for the common defence, and general welfare of the United 

States." In the preamble, the intent of the constitution, among other 

things, is declared to be to provide for the common defence, and promote the 

general welfare, and in this clause the power is in express words given to 

Congress "to provide for the common defence, and general welfare." -- And in 

the last paragraph of the same section there is an express authority to make 

all laws which shall be necessary and proper for carrying into execution 

this power. It is therefore evident, that the legislature under this 

constitution may pass any law which they may think proper. It is true the 

9th section restrains their power with respect to certain objects. But these 

restrictions are very limited, some of them improper, some unimportant, and 

others not easily understood, as I shall hereafter shew. It has been urged 

that the meaning I give to this part of the constitution is not the true 

one, that the intent of it is to confer on the legislature the power to lay 

and collect taxes, etc. in order to provide for the common defence and 

general welfare. To this I would reply, that the meaning and intent of the 

constitution is to be collected from the words of it, and I submit to the 

public, whether the construction I have given it is not the most natural and 

easy. But admitting the contrary opinion to prevail, I shall nevertheless, 

be able to shew, that the same powers are substantially vested in the 

general government, by several other articles in the constitution. It 

invests the legislature with authority to lay and collect taxes, duties, 

imposts and excises, in order to provide for the common defence, and promote 

the general welfare, and to pass all laws which shall be necessary and 

proper for carrying this power into effect. To comprehend the extent of this 

authority, it will be requisite to examine 1st. what is included in this 

power to lay and collect taxes, duties, imposts and excises.



2d. What is implied in the authority, to pass all laws which shall be 

necessary and proper for carrying this power into execution.



3d. What limitation, if any, is set to the exercise of this power by the 

constitution.



1st. To detail the particulars comprehended in the general terms, taxes, 

duties, imposts and excises, would require a volume, instead of a single 

piece in a news-paper. Indeed it would be a task far beyond my ability, and 

to which no one can be competent, unless possessed of a mind capable of 

comprehending every possible source of revenue; for they extend to every 

possible way of raising money, whether by direct or indirect taxation. Under 

this clause may be imposed a poll-tax, a land-tax, a tax on houses and 

buildings, on windows and fire places, on cattle and on all kinds of 

personal property: -- It extends to duties on all kinds of goods to any 

amount, to tonnage and poundage on vessels, to duties on written 

instruments, newspapers, almanacks, and books: -- It comprehends an excise 

on all kinds of liquors, spirits, wines, cyder, beer, etc. and indeed takes 

in duty or excise on every necessary or conveniency of life; whether of 

foreign or home growth or manufactory. In short, we can have no conception 

of any way in which a government can raise money from the people, but what 

is included in one or other of three general terms. We may say then that 

this clause commits to the hands of the general legislature every 

conceivable source of revenue within the United States. Not only are these 

terms very comprehensive, and extend to a vast number of objects, but the 

power to lay and collect has great latitude; it will lead to the passing a 

vast number of laws, which may affect the personal rights of the citizens of 

the states, expose their property to fines and confiscation, and put their 

lives in jeopardy: it opens a door to the appointment of a swarm of revenue 

and excise officers to pray [sic] upon the honest and industrious part of 

the community, eat up their substance, and riot on the spoils of the 

country.



2d. We will next enquire into what is implied in the authority to pass all 

laws which shall be necessary and proper to carry this power into execution. 



It is, perhaps, utterly impossible fully to define this power. The authority 

granted in the first clause can only be understood in its full extent, by 

descending to all the particular cases in which a revenue can be raised; the 

number and variety of these cases are so endless, and as it were infinite, 

that no man living has, as yet, been able to reckon them up. The greatest 

geniuses in the world have been for ages employed in the research, and when 

mankind had supposed that the subject was exhausted they have been 

astonished with the refined improvements that have been made in modem times, 

and especially in the English nation on the subject -- If then the objects 

of this power cannot be comprehended, how is it possible to understand the 

extent of that power which can pass all laws which shall be necessary and 

proper for carrying it into execution? It is truly incomprehensible. A case 

cannot be conceived of, which is not included in this power. It is well 

known that the subject of revenue is the most difficult and extensive in the 

science of government. It requires the greatest talents of a statesman, and 

the most numerous and exact provisions of the legislature. The command of 

the revenues of a state gives the command of every thing in it. -- He that 

has the purse will have the sword, and they that have both, have every 

thing; so that the legislature having every source from which money can be 

drawn under their direction, with a right to make all laws necessary and 

proper for drawing forth all the resource of the country, would have, in 

fact, all power.



Were I to enter into the detail, it would be easy to shew how this power in 

its operation, would totally destroy all the powers of the individual 

states. But this is not necessary for those who will think for themselves, 

and it will be useless to such as take things upon trust, nothing will 

awaken them to reflection, until the iron hand of oppression compel them to 

it.



I shall only remark, that this power, given to the federal legislature, 

directly annihilates all the powers of the state legislatures. There cannot 

be a greater solecism in politics than to talk of power in a government, 

without the command of any revenue. It is as absurd as to talk of an animal 

without blood, or the subsistence of one without food. Now the general 

government having in their controul every possible source of revenue, and 

authority to pass any law they may deem necessary to draw them forth, or to 

facilitate their collection; no source of revenue is therefore left in the 

hands of any state. Should any state attempt to raise money by law, the 

general government may repeal or arrest it in the execution, for all their 

laws will be the supreme law of the land: If then any one can be weak enough 

to believe that a government can exist without having the authority to raise 

money to pay a door-keeper to their assembly, he may believe that the state 

government can exist, should this new constitution take place.



It is agreed by most of the advocates of this new system, that the 

government which is proper for the United States should be a confederated 

one; that the respective states ought to retain a portion of their 

sovereignty, and that they should preserve not only the forms of their 

legislatures, but also the power to conduct certain internal concerns. How 

far the powers to be retained by the states shall extend, is the question; 

we need not spend much time on this subject, as it respects this 

constitution, for a government without the power to raise money is one only 

in name. It is clear that the legislatures of the respective states must be 

altogether dependent on the will of the general legislature, for the means 

of supporting their government. The legislature of the United States will 

have a right to exhaust every source of revenue in every state, and to annul 

all laws of the states which may stand in the way of effecting it; unless 

therefore we can suppose the state governments can exist without money to 

support the officers who execute them, we must conclude they will exist no 

longer than the general legislature choose they should. Indeed the idea of 

any government existing, in any respect, as an independent one, without any 

means of support in their own hands, is an absurdity. If therefore, this 

constitution has in view, what many of its framers and advocates say it has, 

to secure and guarantee to the separate states the exercise of certain 

powers of government[,] it certainly ought to have left in their hands some 

sources of revenue. It should have marked the line in which the general 

government should have raised money, and set bounds over which they should 

not pass, leaving to the separate states other means to raise supplies for 

the support of their governments, and to discharge their respective debts. 

To this it is objected, that the general government ought to have power 

competent to the purposes of the union; they are to provide for the common 

defence, to pay the debts of the United States, support foreign ministers, 

and the civil establishment of the union, and to do these they ought to have 

authority to raise money adequate to the purpose. On this I observe, that 

the state governments have also contracted debts, they require money to 

support their civil officers, and how this is to be done, if they give to 

the general government a power to raise money in every way in which it can 

possibly be raised, with such a controul over the state legislatures as to 

prohibit them, whenever the general legislature may think proper, from 

raising any money. It is again objected that it is very difficult, if not 

impossible, to draw the line of distinction between the powers of the 

general and state governments on this subject. The first, it is said, must 

have the power of raising the money necessary for the purposes of the union, 

if they are limited to certain objects the revenue may fall short of a 

sufficiency for the public exigencies, they must therefore have 

discretionary power. The line may be easily and accurately drawn between the 

powers of the two governments on this head. The distinction between external 

and internal taxes, is not a novel one in this country, it is a plain one, 

and easily understood. The first includes impost duties on all imported 

goods; this species of taxes it is proper should be laid by the general 

government; many reasons might be urged to shew that no danger is to be 

apprehended from their exercise of it. They may be collected in few places, 

and from few hands with certainty and expedition. But few officers are 

necessary to be imployed in collecting them, and there is no danger of 

oppression in laying them, because, if they are laid higher than trade will 

bear, the merchants will cease importing, or smuggle their goods. We have 

therefore sufficient security, arising from the nature of the thing, against 

burdensome and intolerable impositions from this kind of tax. But the case 

is far otherwise with regard to direct taxes; these include poll taxes, land 

taxes, excises, duties on written instruments, on every thing we eat, drink, 

or wear; they take hold of every species of property, and come home to every 

man's house and packet. These are often so oppressive, as to grind the face 

of the poor, and render the lives of the common people a burden to them. The 

great and only security the people can have against oppression from this 

kind of taxes, must rest in their representatives. If they are sufficiently 

numerous to be well informed of the circumstances, and ability of those who 

send them, and have a proper regard for the people, they will be secure. The 

general legislature, as I have shewn in a former paper, will not be thus 

qualified, and therefore, on this account, ought not to exercise the power 

of direct taxation. If the power of laying imposts will not be sufficient, 

some other specific mode of raising a revenue should have been assigned the 

general government; many may be suggested in which their power may be 

accurately defined and limited, and it would be much better to give them 

authority to lay and collect a duty on exports, not to exceed a certain rate 

per cent, than to have surrendered every kind of resource that the country 

has, to the complete abolition of the state governments, and which will 

introduce such an infinite number of laws and ordinances, fines and 

penalties, courts, and judges, collectors, and excisemen, that when a man 

can number them, he may enumerate the stars of Heaven.



I shall resume this subject in my next, and by an induction of particulars 

shew, that this power, in its exercise, will subvert all state authority, 

and will work to the oppression of the people, and that there are no 

restrictions in the constitution that will soften its rigour, but rather 

the contrary.



                                                Brutus.



                         VI



                   27 December 1787



It is an important question, whether the general government of the United 

States should be so framed, as to absorb and swallow up the state 

governments? or whether, on the contrary, the former ought not to be 

confined to certain defined national objects, while the latter should retain 

all the powers which concern the internal police of the states?



I have, in my former papers, offered a variety of arguments to prove, that a 

simple free government could not be exercised over this whole continent, and 

that therefore we must either give up our liberties and submit to an 

arbitrary one, or frame a constitution on the plan of confederation. Further 

reasons might be urged to prove this point -- but it seems unnecessary, 

because the principal advocates of the new constitution admit of the 

position. The question therefore between us, this being admitted, is, 

whether or not this system is so formed as either directly to annihilate the 

state governments, or that in its operation it will certainly effect it. If 

this is answered in the affirmative, then the system ought not to be 

adopted, without such amendments as will avoid this consequence. If on the 

contrary it can be shewn, that the state governments are secured in their 

rights to manage the internal police of the respective states, we must 

confine ourselves in our enquiries to the organization of the government and 

the guards and provisions it contains to prevent a misuse or abuse of power. 

To determine this question, it is requisite, that we fully investigate the 

nature, and the extent of the powers intended to be granted by this 

constitution to the rulers.



In my last number I called your attention to this subject, and proved, as I 

think, uncontrovertibly, that the powers given the legislature under the 8th 

section of the 1st article, had no other limitation than the discretion of 

the Congress. It was shewn, that even if the most favorable construction was 

given to this paragraph, that the advocates for the new constitution could 

wish, it will convey a power to lay and collect taxes, imposts, duties, and 

excises, according to the discretion of the legislature, and to make all 

laws which they shall judge proper and necessary to carry this power into 

execution. This I shewed would totally destroy all the power of the state 

governments. To confirm this, it is worth while to trace the operation of 

the government in some particular instances.



The general government is to be vested with authority to levy and collect 

taxes, duties, and excises; the separate states have also power to impose 

taxes, duties, and excises, except that they cannot lay duties on exports 

and imports without the consent of Congress. Here then the two governments 

have concurrent jurisdiction; both may lay impositions of this kind. But 

then the general government have supperadded to this power, authority to 

make all laws which shall be necessary and proper for carrying the foregoing 

power into execution. Suppose then that both governments should lay taxes, 

duties, and excises, and it should fall so heavy on the people that they 

would be unable, or be so burdensome that they would refuse to pay them both 

-- would it not be necessary that the general legislature should suspend the 

collection of the state tax? It certainly would. For, if the people could 

not, or would not pay both, they must be discharged from the tax to the 

state, or the tax to the general government could not be collected. -- The 

conclusion therefore is inevitable, that the respective state governments 

will not have the power to raise one shilling in any way, but by the 

permission of the Congress. I presume no one will pretend, that the states 

can exercise legislative authority, or administer justice among their 

citizens for any length of time, without being able to raise a sufficiency 

to pay those who administer their governments.



If this be true, and if the states can raise money only by permission of the 

general government, it follows that the state governments will be dependent 

on the will of the general government for their existence.



What will render this power in Congress effectual and sure in its operation 

is, that the government will have complete judicial and executive authority 

to carry all their laws into effect, which will be paramount to the judicial 

and executive authority of the individual states: in vain therefore will be 

all interference of the legislatures, courts, or magistrates of any of the 

states on the subject; for they will be subordinate to the general 

government, and engaged by oath to support it, and will be constitutionally 

bound to submit to their decisions.



The general legislature will be empowered to lay any tax they chuse, to 

annex any penalties they please to the breach of their revenue laws; and to 

appoint as many officers as they may think proper to collect the taxes. They 

will have authority to farm the revenues and to vest the farmer general, 

with his subalterns, with plenary powers to collect them, in any way which 

to them may appear eligible. And the courts of law, which they will be 

authorized to institute, will have cognizance of every case arising under 

the revenue laws, the conduct of all the officers employed in collecting 

them; and the officers of these courts will execute their judgments. There 

is no way, therefore, of avoiding the destruction of the state governments, 

whenever the Congress please to do it, unless the people rise up, and, with 

a strong hand, resist and prevent the execution of constitutional laws. The 

fear of this, will, it is presumed, restrain the general government, for 

some time, within proper bounds; but it will not be many years before they 

will have a revenue, and force, at their command, which will place them 

above any apprehensions on that score.



How far the power to lay and collect duties and excises, may operate to 

dissolve the state governments, and oppress the people, it is impossible to 

say. It would assist us much in forming a just opinion on this head, to 

consider the various objects to which this kind of taxes extend, in European 

nations, and the infinity of laws they have passed respecting them. Perhaps, 

if leisure will permit, this may be essayed in some future paper.



It was observed in my last number, that the power to lay and collect duties 

and excises, would invest the Congress with authority to impose a duty and 

excise on every necessary and convenience of life. As the principal object 

of the government, in laying a duty or excise, will be, to raise money, it 

is obvious, that they will fix on such articles as are of the most general 

use and consumption; because, unless great quantities of the article, on 

which the duty is laid, is used, the revenue cannot be considerable. We may 

therefore presume, that the articles which will be the object of this 

species of taxes will be either the real necessaries of life; or if not 

these, such as from custom and habit are esteemed so. I will single out a 

few of the productions of our own country, which may, and probably will, be 

of the number.



Cider is an article that most probably will be one of those on which an 

excise will be laid, because it is one, which this country produces in great 

abundance, which is in very general use, is consumed in great quantities, 

and which may be said too not to be a real necessary of life. An excise on 

this would raise a large sum of money in the United States. How would the 

power, to lay and collect an excise on cider, and to pass all laws proper 

and necessary to carry it into execution, operate in its exercise? It might 

be necessary, in order to collect the excise on cider, to grant to one man, 

in each county, an exclusive right of building and keeping cider-mills, and 

oblige him to give bonds and security for payment of the excise; or, if this 

was not done, it might be necessary to license the mills, which are to make 

this liquor, and to take from them security, to account for the excise; or, 

if otherwise, a great number of officers must be employed, to take account 

of the cider made, and to collect the duties on it.



Porter, ale, and all kinds of malt-liquors, are articles that would probably 

be subject also to an excise. It would be necessary, in order to collect 

such an excise, to regulate the manufactory of these, that the quantity made 

might be ascertained or otherwise security could not be had for the payment 

of the excise. Every brewery must then be licensed, and officers appointed, 

to take account of its product, and to secure the payment of the duty, or 

excise, before it is sold. Many other articles might be named, which would 

be objects of this species of taxation, but I refrain from enumerating them. 

It will probably be said, by those who advocate this system, that the 

observations already made on this head, are calculated only to inflame the 

minds of the people, with the apprehension of dangers merely imaginary. That 

there is not the least reason to apprehend, the general legislature will 

exercise their power in this manner. To this I would only say, that these 

kinds of taxes exist in Great Britain, and are severely felt. The excise on 

cider and perry, was imposed in that nation a few years ago, and it is in 

the memory of every one, who read the history of the transaction, what great 

tumults it occasioned.



This power, exercised without limitation, will introduce itself into every 

comer of the city, and country -- It will wait upon the ladies at their 

toilett, and will not leave them in any of their domestic concerns; it will 

accompany them to the ball, the play, and the assembly; it will go with them 

when they visit, and will, on all occasions, sit beside them in their 

carriages, nor will it desert them even at church; it will enter the house 

of every gentleman, watch over his cellar, wait upon his cook in the 

kitchen, follow the servants into the parlour, preside over the table, and 

note down all he eats or drinks; it will attend him to his bed-chamber, and 

watch him while he sleeps; it will take cognizance of the professional man 

in his office, or his study; it will watch the merchant in the 

counting-house, or in his store; it will follow the mechanic to his shop, 

and in his work, and will haunt him in his family, and in his bed; it will 

be a constant companion of the industrious farmer in all his labour, it will 

be with him in the house, and in the field, observe the toil of his hands, 

and the sweat of his brow; it will penetrate into the most obscure cottage; 

and finally, it will light upon the head of every person in the United 

States. To all these different classes of people, and in all these 

circumstances, in which it will attend them, the language in which it will 

address them, will be GIVE! GIVE!



A power that has such latitude, which reaches every person in the community 

in every conceivable circumstance, and lays hold of every species of 

property they possess, and which has no bounds set to it, but the discretion 

of those who exercise it[,] I say, such a power must necessarily, from its 

very nature, swallow up all the power of the state governments.



I shall add but one other observation on this head, which is this -- It 

appears to me a solecism, for two men, or bodies of men, to have unlimited 

power respecting the same object. It contradicts the scripture maxim, which 

saith, "no man can serve two masters," the one power or the other must 

prevail, or else they will destroy each other, and neither of them effect 

their purpose. It may be compared to two mechanic powers, acting upon the 

same body in opposite directions, the consequence would be, if the powers 

were equal, the body would remain in a state of rest, or if the force of the 

one was superior to that of the other, the stronger would prevail, and 

overcome the resistance of the weaker.



But it is said, by some of the advocates of this system, "That the idea that 

Congress can levy taxes at pleasure, is false, and the suggestion wholly 

unsupported: that the preamble to the constitution is declaratory of the 

purposes of the union, and the assumption of any power not necessary to 

establish justice, &c. to provide for the common defence, &c. will be 

unconstitutional. Besides, in the very clause which gives the power of 

levying duties and taxes, the purposes to which the money shall be 

appropriated, are specified, viz. to pay the debts, and provide for the 

common defence and general welfare."[1] I would ask those, who reason thus, 

to define what ideas are included under the terms, to provide for the common 

defence and general welfare? Are these terms definite, and will they be 

understood in the same manner, and to apply to the same cases by every one? 

No one will pretend they will. It will then be matter of opinion, what tends 

to the general welfare; and the Congress will be the only judges in the 

matter. To provide for the general welfare, is an abstract proposition, 

which mankind differ in the explanation of, as much as they do on any 

political or moral proposition that can be proposed; the most opposite 

measures may be pursued by different parties, and both may profess, that 

they have in view the general welfare; and both sides may be honest in their 

professions, or both may have sinister views. Those who advocate this new 

constitution declare, they are influenced by a regard to the general 

welfare; those who oppose it, declare they are moved by the same principle; 

and I have no doubt but a number on both sides are honest in their 

professions; and yet nothing is more certain than this, that to adopt this 

constitution, and not to adopt it, cannot both of them be promotive of the 

general welfare.



It is as absurd to say, that the power of Congress is limited by these 

general expressions, "to provide for the common safety, and general 

welfare," as it would be to say, that it would be limited, had the 

constitution said they should have power to lay taxes, &c. at will and 

pleasure. Were this authority given, it might be said, that under it the 

legislature could not do injustice, or pursue any measures, but such as were 

calculated to promote the public good, and happiness. For every man, rulers 

as well as others, are bound by the immutable laws of God and reason, always 

to will what is right. It is certainly right and fit, that the governors of 

every people should provide for the common defence and general welfare; 

every government, therefore, in the world, even the greatest despot, is 

limited in the exercise of his power. But however just this reasoning may 

be, it would be found, in practice, a most pitiful restriction. The 

government would always say, their measures were designed and calculated to 

promote the public good; and there being no judge between them and the 

people, the rulers themselves must, and would always, judge for themselves.



There are others of the favourers of this system, who admit, that the power 

of the Congress under it, with respect to revenue, will exist without 

limitation, and contend, that so it ought to be.



It is said, "The power to raise armies, to build and equip fleets, and to 

provide for their support, ought to exist without limitation, because it is 

impossible to foresee, or to define, the extent and variety of national 

exigencies, or the correspondent extent and variety of the means which may 

be necessary to satisfy them.["]



This, it is said, "is one of those truths which, to correct and unprejudiced 

minds, carries its own evidence along with it. It rests upon axioms as 

simple as they are universal: the means ought to be proportioned to the end; 

the person, from whose agency the attainment of any end is expected, ought 

to possess the means by which it is to be attained."[2]



This same writer insinuates, that the opponents to the plan promulgated by 

the convention, manifests a want of candor, in objecting to the extent of 

the powers proposed to be vested in this government; because he asserts, 

with an air of confidence, that the powers ought to be unlimited as to the 

object to which they extend; and that this position, if not self-evident, is 

at least clearly demonstrated by the foregoing mode of reasoning. But with 

submission to this author's better judgment, I humbly conceive his reasoning 

will appear, upon examination, more specious than solid. The means, says the 

gentleman, ought to be proportioned to the end: admit the proposition to be 

true it is then necessary to enquire, what is the end of the government of 

the United States, in order to draw any just conclusions from it. Is this 

end simply to preserve the general government, and to provide for the common 

defence and general welfare of the union only? certainly not: for beside 

this, the state governments are to be supported, and provision made for the 

managing such of their internal concerns as are allotted to them. It is 

admitted, "that the circumstances of our country are such, as to demand a 

compound, instead of a simple, a confederate, instead of a sole government," 

that the objects of each ought to be pointed out, and that each ought to 

possess ample authority to execute the powers committed to them. The 

government then, being complex in its nature, the end it has in view is so 

also; and it is as necessary, that the state governments should possess the 

means to attain the ends expected from them, as for the general government. 

Neither the general government, nor the state governments, ought to be 

vested with all the powers proper to be exercised for promoting the ends of 

government. The powers are divided between them -- certain ends are to be 

attained by the one, and other certain ends by the other; and these, taken 

together, include all the ends of good government. This being the case, the 

conclusion follows, that each should be furnished with the means, to attain 

the ends, to which they are designed.



To apply this reasoning to the case of revenue; the general government is 

charged with the care of providing for the payment of the debts of the 

United States; supporting the general government, and providing for the 

defence of the union. To obtain these ends, they should be furnished with 

means. But does it thence follow, that they should command all the revenues 

of the United States! Most certainly it does not. For if so, it will follow, 

that no means will be left to attain other ends, as necessary to the 

happiness of the country, as those committed to their care. The individual 

states have debts to discharge; their legislatures and executives are to be 

supported, and provision is to be made for the administration of justice in 

the respective states. For these objects the general government has no 

authority to provide; nor is it proper it should. It is clear then. that the 

states should have the command of such revenues, as to answer the ends they 

have to obtain. To say, "that the circumstances that endanger the safety of 

nations are infinite," and from hence to infer, that all the sources of 

revenue in the states should be yielded to the general government, is not 

conclusive reasoning: for the Congress are authorized only to controul in 

general concerns, and not regulate local and internal ones; and these are as 

essentially requisite to be provided for as those. The peace and happiness 

of a community is as intimately connected with the prudent direction of 

their domestic affairs, and the due administration of justice among 

themselves, as with a competent provision for their defence against foreign 

invaders, and indeed more so.



Upon the whole, I conceive, that there cannot be a clearer position than 

this, that the state governments ought to have an uncontroulable power to 

raise a revenue, adequate to the exigencies of their governments; and, I 

presume, no such power is left them by this constitution.



                                                Brutus.



1. Vide an examination into the leading principles of the federal 

constitution, printed in Philadelphia, Page 34.



2. Vide the Federalist, No. 23.



                         VII



                     3 January 1788



The result of our reasoning in the two preceeding numbers is this, that in a 

confederated government, where the powers are divided between the general 

and the state government, it is essential to its existence, that the 

revenues of the country, without which no government can exist, should be 

divided between them, and so apportioned to each, as to answer their 

respective exigencies, as far as human wisdom can effect such a division and 

apportionment.



It has been shewn, that no such allotment is made in this constitution, but 

that every source of revenue is under the controul of the Congress; it 

therefore follows, that if this system is intended to be a complex and not a 

simple, a confederate and not an entire consolidated government, it contains 

in it the sure seeds of its own dissolution. -- One of two things must 

happen -- Either the new constitution will become a mere nudum pactum, and 

all the authority of the rulers under it be cried down, as has happened to 

the present confederation -- Or the authority of the individual states will 

be totally supplanted, and they will retain the mere form without any of the 

powers of government. -- To one or the other of these issues, I think, this 

new government, if it is adopted, will advance with great celerity.



It is said, I know, that such a separation of the sources of revenue, cannot 

be made without endangering the public safety -- "unless (says a writer) it 

can be shewn that the circumstances which may affect the public safety are 

reducible within certain determinate limits; unless the contrary of this 

position can be fairly and rationally disputed; it must be admitted as a 

necessary consequence, that there can be no limitation of that authority 

which is to provide for the defence and protection of the community, &c."[1]



The pretended demonstration of this writer will instantly vanish, when it is 

considered, that the protection and defence of the community is not intended 

to be entrusted solely into the hands of the general government, and by his 

own confession it ought not to be. It is true this system commits to the 

general government the protection and defence of the community against 

foreign force and invasion, against piracies and felonies on the high seas, 

and against insurrections among ourselves. They are also authorised to 

provide for the administration of justice in certain matters of a general 

concern, and in some that I think are not so. But it ought to be left to the 

state governments to provide for the protection and defence of the citizen 

against the hand of private violence, and the wrongs done or attempted by 

individuals to each other -- Protection and defence against the murderer, 

the robber, the thief, the cheat, and the unjust person, is to be derived 

from the respective state governments. -- The just way of reasoning 

therefore on this subject is this, the general government is to provide for 

the protection and defence of the community against foreign attacks, &c., 

they therefore ought to have authority sufficient to effect this, so far as 

is consistent with the providing for our internal protection and defence. 

The state governments are entrusted with the care of administring justice 

among its citizens, and the management of other internal concerns, they 

ought therefore to retain power adequate to the end. The preservation of 

internal peace and good order, and the due administration of law and 

justice, ought to be the first care of every government. -- The happiness of 

a people depends infinitely more on this than it does upon all that glory 

and respect which nations acquire by the most brilliant martial achievements 

-- and I believe history will furnish but few examples of nations who have 

duly attended to these, who have been subdued by foreign invaders. If a 

proper respect and submission to the laws prevailed over all orders of men 

in our country; and if a spirit of public and private justice, oeconomy and 

industry influenced the people, we need not be under any apprehensions but 

what they would be ready to repel any invasion that might be made on the 

country. And more than this, I would not wish from them -- A defensive war 

is the only one I think justifiable -- I do not make these observations to 

prove, that a government ought not to be authorised to provide for the 

protection and defence of a country against external enemies, but to shew 

that this is not the most important, much less the only object of their 

care.



The European governments are almost all of them framed, and administered 

with a view to arms, and war, as that in which their chief glory consists; 

they mistake the end of government -- it was designed to save men[']s lives, 

not to destroy them. We ought to furnish the world with an example of a 

great people, who in their civil institutions hold chiefly in view, the 

attainment of virtue, and happiness among ourselves. Let the monarchs, in 

Europe, share among them the glory of depopulating countries, and butchering 

thousands of their innocent citizens, to revenge private quarrels, or to 

punish an insult offered to a wife, a mistress, or a favorite: I envy them 

not the honor, and I pray heaven this country may never be ambitious of it. 

The czar Peter the great, acquired great glory by his arms; but all this was 

nothing, compared with the true glory which he obtained, by civilizing his 

rude and barbarous subjects, diffusing among them knowledge, and 

establishing, and cultivating the arts of life: by the former he desolated 

countries, and drenched the earth with human blood: by the latter he 

softened the ferocious nature of his people, and pointed them to the means 

of human happiness. The most important end of government then, is the proper 

direction of its internal policy, and oeconomy; this is the province of the 

state governments, and it is evident, and is indeed admitted, that these 

ought to be under their controul. Is it not then preposterous, and in the 

highest degree absurd, when the state governments are vested with powers so 

essential to the peace and good order of society, to take from them the 

means of their own preservation?



The idea, that the powers of congress in respect to revenue ought to be 

unlimited, "because the circumstances which may affect the public safety are 

not reducible to certain determinate limits," is novel, as it relates to the 

government of the united states. The inconveniencies which resulted from the 

feebleness of the present confederation was discerned, and felt soon after 

its adoption. It was soon discovered, that a power to require money, without 

either the authority or means to enforce a collection of it, could not be 

relied upon either to provide for the common defence, the discharge of the 

national debt, or for support of government. Congress therefore, so early as 

February 1781, recommended to the states to invest them with a power to levy 

an impost of five per cent ad valorem, on all imported goods, as a fund to be 

appropriated to discharge the debts already contracted, or which should 

hereafter be contracted for the support of the war, to be continued until 

the debts should be fully and finally discharged. There is not the most 

distant idea held out in this act, that an unlimited power to collect taxes, 

duties and excises was necessary to be vested in the united states, and yet 

this was a time of the most pressing danger and distress. The idea then was, 

that if certain definite funds were assigned to the union, which were 

certain in their natures, productive, and easy of collection, it would 

enable them to answer their engagements, and provide for their defence, and 

the impost of five per cent was fixed upon for the purpose.



This same subject was revived in the winter and spring of 1783, and after a 

long consideration of the subject, and many schemes were proposed; the 

result was, a recommendation of the revenue system of April 1783; this 

system does not suggest an idea that it was necessary to grant the United 

States unlimited authority in matters of revenue. A variety of amendments 

were proposed to this system, some of which are upon the journals of 

Congress, but it does not appear that any of them proposed to invest the 

general government with discretionary power to raise money. On the contrary, 

all of them limit them to certain definite objects, and fix the bounds over 

which they could not pass. This recommendation was passed at the conclusion 

of the war, and was founded on an estimate of the whole national debt. It 

was computed, that one million and an half of dollars, in addition to the 

impost, was a sufficient sum to pay the annual interest of the debt, and 

gradually to abolish the principal. -- Events have proved that their 

estimate was sufficiently liberal, as the domestic debt appears upon its 

being adjusted to be less than it was computed, and since this period a 

considerable portion of the principal of the domestic debt has been 

discharged by the sale of the western lands. It has been constantly urged by 

Congress, and by individuals, ever since, until lately, that had this 

revenue been appropriated by the states, as it was recommended, it would 

have been adequate to every exigency of the union. Now indeed it is 

insisted, that all the treasures of the country are to be under the controul 

of that body, whom we are to appoint to provide for our protection and 

defence against foreign enemies. The debts of the several states, and the 

support of the governments of them are to trust to fortune and accident. If 

the union should not have occasion for all the money they can raise, they 

will leave a portion for the state, but this must be a matter of mere grace 

and favor. Doctrines like these would not have been listened to by any state 

in the union, at a time when we were pressed on every side by a powerful 

enemy, and were called upon to make greater exertions than we have any 

reason to expect we shall ever be again. The ability and character of the 

convention, who framed the preferred constitution, is sounded forth and 

reiterated by every declaimer and writer in its favor, as a powerful 

argument to induce its adoption. But are not the patriots who guided our 

councils in the perilous times of the war, entitled to equal respect. How 

has it happened, that none of these perceived a truth, which it is pretended 

is capable of such clear demonstration, that the power to raise a revenue 

should be deposited in the general government without limitation? Were the 

men so dull of apprehension, so incapable of reasoning as not to be able to 

draw the inference? The truth is, no such necessity exists. It is a thing 

practicable, and by no means so difficult as is pretended, to limit the 

powers of the general government in respect to revenue, while yet they may 

retain reasonable means to provide for the common defence.



It is admitted, that human wisdom cannot foresee all the variety of 

circumstances that may arise to endanger the safety of nations -- and it may 

with equal truth be added, that the power of a nation, exerted with its 

utmost vigour, may not be equal to repel a force with which it may be 

assailed, much less may it be able, with its ordinary resources and power, 

to oppose an extraordinary and unexpected attack; -- but yet every nation 

may form a rational judgment, what force will be competent to protect and 

defend it, against any enemy with which it is probable it may have to 

contend. In extraordinary attacks, every country must rely upon the spirit 

and special exertions of its inhabitants -- and these extraordinary efforts 

will always very much depend upon the happiness and good order the people 

experience from a wise and prudent administration of their internal 

government. The states are as capable of making a just estimate on this 

head, as perhaps any nation in the world. -- We have no powerful nation in 

our neighbourhood; if we are to go to war, it must either be with the 

Aboriginal natives, or with European nations. The first are so unequal to a 

contest with this whole continent, that they are rather to be dreaded for 

the depredations they may make on our frontiers, than for any impression 

they will ever be able to make on the body of the country. Some of the 

European nations, it is true, have provinces bordering upon us, but from 

these, unsupported by their European forces, we have nothing to apprehend; if 

any of them should attack us, they will have to transport their armies 

across the atlantic, at immense expence, while we should defend ourselves in 

our own country, which abounds with every necessary of life. For defence 

against any assault, which there is any probability will be made upon us, we 

may easily form an estimate.



I may be asked to point out the sources, from which the general government 

could derive a sufficient revenue, to answer the demands of the union. Many 

might be suggested, and for my part, I am not disposed to be tenacious of my 

own opinion on the subject. If the object be defined with precision, and 

will operate to make the burden fall any thing nearly equal on the different 

parts of the union, I shall be satisfied.



There is one source of revenue, which it is agreed, the general government 

ought to have the sole controul of. This is an impost upon all goods 

imported from foreign countries. This would, of itself, be very productive, 

and would be collected with ease and certainty. -- It will be a fund too, 

constantly encreasing -- for our commerce will grow, with the productions of 

the country; and these, together with our consumption of foreign goods, will 

encrease with our population. It is said, that the impost will not produce a 

sufficient sum to satisfy the demands of the general government; perhaps it 

would not. Let some other then, equally well defined, be assigned them: -- 

that this is practicable is certain, because such particular objects were 

proposed by some members of Congress when the revenue system of April 1783, 

was agitated in that body. It was then moved, that a tax at the rate of 

_____ ninetieths of a dollar on surveyed land, and a house tax of half a 

dollar on a house, should be granted to the United States. I do not mention 

this, because I approve of raising a revenue in this mode. I believe such a 

tax would be difficult in its collection, and inconvenient in its operation. 

But it shews, that it has heretofore been the sense of some of those, who 

now contend, that the general government should have unlimited authority in 

matters of revenue, that their authority should be definite and limitted on 

that head. -- My own opinion is, that the objects from which the general 

government should have authority to raise a revenue, should be of such a 

nature, that the tax should be raised by simple laws, with few officers, 

with certainty and expedition, and with the least interference with the 

internal police of the states. -- Of this nature is the impost on imported 

goods -- and it appears to me that a duty on exports, would also be of this 

nature -- and therefore, for ought I can discover, this would be the best 

source of revenue to grant the general government. I know neither the 

Congress nor the state legislatures will have authority under the new 

constitution to raise a revenue in this way. But I cannot perceive the 

reason of the restriction. It appears to me evident, that a tax on articles 

exported, would be as nearly equal as any that we can expect to lay, and it 

certainly would be collected with more ease and less expence than any direct 

tax. I do not however, contend for this mode, it may be liable to well 

founded objections that have not occurred to me. But this I do contend for, 

that some mode is practicable, and that limits must be marked between the 

general government, and the states on this head, or if they be not, either 

the Congress in the exercise of this power, will deprive the state 

legislatures of the means of their existence, or the states by resisting the 

constitutional authority of the general government, will render it nugatory.



                                                Brutus.



1. Federalist, No. 23.



                        VIII



                    10 January 1788



The next powers vested by this constitution in the general government, which 

we shall consider, are those, which authorise them to "borrow money on the 

credit of the United States, and to raise and support armies." I take these 

two together and connect them with the power to lay and collect taxes, 

duties, imposts and excises, because their extent, and the danger that will 

arise from the exercise of these powers, cannot be fully understood, unless 

they are viewed in relation to each other.



The power to borrow money is general and unlimited, and the clause so often 

before referred to, authorises the passing any laws proper and necessary to 

carry this into execution. Under this authority, the Congress may mortgage 

any or all the revenues of the union, as a fund to loan money upon, and it 

is probably, in this way, they may borrow of foreign nations, a principal 

sum, the interest of which will be equal to the annual revenues of the 

country. -- By this means, they may create a national debt, so large, as to 

exceed the ability of the country ever to sink. I can scarcely contemplate a 

greater calamity that could befal this country, than to be loaded with a 

debt exceeding their ability ever to discharge. If this be a just remark, it 

is unwise and improvident to vest in the general government a power to 

borrow at discretion, without any limitation or restriction.



It may possibly happen that the safety and welfare of the country may 

require, that money be borrowed, and it is proper when such a necessity 

arises that the power should be exercised by the general government. -- But 

it certainly ought never to be exercised, but on the most urgent occasions, 

and then we should not borrow of foreigners if we could possibly avoid it.



The constitution should therefore have so restricted, the exercise of this 

power as to have rendered it very difficult for the government to practise 

it. The present confederation requires the assent of nine states to exercise 

this, and a number of the other important powers of the confederacy -- and 

it would certainly have been a wise provision in this constitution, to have 

made it necessary that two thirds of the members should assent to borrowing 

money -- when the necessity was indispensable, this assent would always be 

given, and in no other cause ought it to be.



The power to raise armies, is indefinite and unlimited, and authorises the 

raising forces, as well in peace as in war. Whether the clause which 

impowers the Congress to pass all laws which are proper and necessary, to 

carry this into execution, will not authorise them to impress men for the 

army, is a question well worthy consideration? If the general legislature 

deem it for the general welfare to raise a body of troops, and they cannot 

be procured by voluntary enlistments, it seems evident, that it will be 

proper and necessary to effect it, that men be impressed from the militia to 

make up the deficiency. 



These powers taken in connection, amount to this: that the general 

government have unlimitted authority and controul over all the wealth and 

all the force of the union. The advocates for this scheme, would favor the 

world with a new discovery, if they would shew, what kind of freedom or 

independency is left to the state governments, when they cannot command any 

part of the property or of the force of the country, but at the will of the 

Congress. It seems to me as absurd, as it would be to say, that I was free 

and independent, when I had conveyed all my property to another, and was 

tenant to will to him, and had beside, given an indenture of myself to serve 

him during life. -- The power to keep up standing armies in time of peace, 

has been justly objected, to this system, as dangerous and improvident. The 

advocates who have wrote in its favor, have some of them ridiculed the 

objection, as though it originated in the distempered brain of its 

opponents, and others have taken pains to shew, that it is a power that was 

proper to be granted to the rulers in this constitution. That you may be 

enabled to form a just opinion on this subject, I shall first make some 

remarks, tending to prove, that this power ought to be restricted, and then 

animadvert on the arguments which have been adduced to justify it.



I take it for granted, as an axiom in politic, that the people should never 

authorise their rulers to do any thing, which if done, would operate to 

their injury.



It seems equally clear, that in a case where a power, if given and 

exercised, will generally produce evil to the community, and seldom good -- 

and which, experience has proved, has most frequently been exercised to the 

great injury, and very often to the total destruction of the government; in 

such a case, I say, this power, if given at all, should if possible be so 

restricted, as to prevent the ill effect of its operation.



Let us then enquire, whether standing armies in time of peace, would be ever 

beneficial to our country -- or if in some extraordinary cases, they might 

be necessary; whether it is not true, that they have generally proved a 

scourge to a country, and destructive of their liberty.



I shall not take up much of your time in proving a point, in which the 

friends of liberty, in all countries, have so universally agreed. The 

following extract from Mr. Pultney's speech, delivered in the house of 

commons of Great-Britain, on a motion for reducing the army, is so full to 

the point, and so much better than any thing I can say, that I shall be 

excused for inserting it. He says, "I have always been, and always shall be 

against a standing army of any kind; to me it is a terrible thing, whether 

under that of a parliamentary, or any other designation; a standing army is 

still a standing army by whatever name it is called; they are a body of men 

distinct from the body of the people; they are governed by different laws, 

and blind obedience, and an entire submission to the orders of their 

commanding officer, is their only principle; the nations around us, sir, are 

already enslaved, and have been enslaved by those very means; by means of 

their standing armies they have every one lost their liberties; it is indeed 

impossible that the liberties of the people in any country can be preserved 

where a numerous standing army is kept up. Shall we then take our measures 

from the example of our neighbours? No, sir, on the contrary, from their 

misfortunes we ought to learn to avoid those rocks upon which they have 

split.



"It signifies nothing to tell me that our army is commanded by such 

gentlemen as cannot be supposed to join in any measures for enslaving their 

country; it may be so; I have a very good opinion of many gentlemen now in 

the army; I believe they would not join in any such measures; but their 

lives are uncertain, nor can we be sure how long they will be kept in 

command, they may all be dismissed in a moment, and proper tools of power 

put in their room. Besides, sir, we know the passions of men, we know how 

dangerous it is to trust the best of men with too much power. Where was a 

braver army than that under Jul. Caesar? Where was there ever an army that 

had served their country more faithfully? That army was commanded generally 

by the best citizens of Rome, by men of great fortune and figure in their 

country, yet that army enslaved their country. The affections of the 

soldiers towards their country, the honor and integrity of the under 

officers, are not to be depended on. By the military law the administration 

of justice is so quick, and the punishment so severe, that neither the 

officer nor soldier dare dispute the orders of his supreme commander; he 

must not consult his own inclination. If an officer were commanded to pull 

his own father out of this house, he must do it; he dares not disobey; 

immediate death would be the sure consequence of the least grumbling: and if 

an officer were sent into the court of request, accompanied by a body of 

musketeers with screwed bayonets, and with orders to tell us what we ought 

to do, and how we were to vote: I know what would be the duty of this house; 

I know it would be our duty to order the officer to be hanged at the door of 

the lobby; but I doubt, sir, I doubt much, if such a spirit could be found 

in the house, or in any house of commons that will ever be in England.



"Sir, I talk not of imaginary things? I talk of what has happened to an 

English house of commons, from an English army; not only from an English 

army, but an army that was raised by that very house of commons, an army 

that was paid by them, and an army that was commanded by generals appointed 

by them; therefore do not let us vainly imagine, that an army, raised and 

maintained by authority of parliament, will always be so submissive to them. 

If an army be so numerous as to have it in their power to overawe the 

parliament, they will be submissive as long as the parliament does nothing 

to disoblige their favourite general; but when that case happens, I am 

afraid, that in place of the parliament's dismissing the army, the army will 

dismiss the parliament." -- If this great man's reasoning be just, it 

follows, that keeping up a standing army, would be in the highest degree 

dangerous to the liberty and happiness of the community -- and if so, the 

general government ought not to have authority to do it; for no government 

should be empowered to do that which if done, would tend to destroy public 

liberty.



                                                Brutus.



                          IX



                    17 January 1788



The design of civil government is to protect the rights and promote the 

happiness of the people.



For this end, rulers are invested with powers. But we cannot from hence 

justly infer that these powers should be unlimited. There are certain rights 

which mankind possess, over which government ought not to have any controul, 

because it is not necessary they should, in order to attain the end of its 

institution. There are certain things which rulers should be absolutely 

prohibited from doing, because, if they should do them, they would work an 

injury, not a benefit to the people. Upon the same principles of reasoning, 

if the exercise of a power, is found generally or in most cases to operate 

to the injury of the community, the legislature should be restricted in the 

exercise of that power, so as to guard, as much as possible, against the 

danger. These principles seem to be the evident dictates of common sense, 

and what ought to give sanction to them in the minds of every American, they 

are the great principles of the late revolution, and those which governed 

the framers of all our state constitutions. Hence we find, that all the 

state constitutions, contain either formal bills of rights, which set bounds 

to the powers of the legislature, or have restrictions for the same purpose 

in the body of the constitutions. Some of our new political Doctors, indeed, 

reject the idea of the necessity, or propriety of such restrictions in any 

elective government, but especially in the general one.



But it is evident, that the framers of this new system were of a contrary 

opinion, because they have prohibited the general government, the exercise 

of some powers, and restricted them in that of others.



I shall adduce two instances, which will serve to illustrate my meaning, as 

well as to confirm the truth of the preceeding remark.



In the 9th section, it is declared, "no bill of attainder shall be passed." 

This clause takes from the legislature all power to declare a particular 

person guilty of a crime by law. It is proper the legislature should be 

deprived of the exercise of this power, because it seldom is exercised to 

the benefit of the community, but generally to its injury.



In the same section it is provided, that "the privilege of the writ of 

habeas corpus shall not be suspended, unless when in cases of rebellion and 

invasion, the public safety may require it." This clause limits the power of 

the legislature to deprive a citizen of the right of habeas corpus, to 

particular cases viz. those of rebellion and invasion; the reason is plain, 

because in no other cases can this power be exercised for the general good.



Let us apply these remarks to the case of standing armies in times of peace. 

If they generally prove the destruction of the happiness and liberty of the 

people, the legislature ought not to have power to keep them up, or if they 

had, this power should be so restricted, as to secure the people against the 

danger arising from the exercise of it.



That standing armies are dangerous to the liberties of a people was proved 

in my last number -- If it was necessary, the truth of the position might be 

confirmed by the history of almost every nation in the world. A cloud of the 

most illustrious patriots of every age and country, where freedom has been 

enjoyed, might be adduced as witnesses in support of the sentiment. But I 

presume it would be useless, to enter into a laboured argument, to prove to 

the people of America, a position, which has so long and so generally been 

received by them as a kind of axiom.



Some of the advocates for this new system controvert this sentiment, as they 

do almost every other that has been maintained by the best writers on free 

government. -- Others, though they will not expressly deny, that standing 

armies in times of peace are dangerous, yet join with these in maintaining, 

that it is proper the general government should be vested with the power to 

do it. I shall now proceed to examine the arguments they adduce in support 

of their opinions.



A writer, in favor of this system, treats this objection as a ridiculous 

one. He supposes it would be as proper to provide against the introduction 

of Turkish janizaries, or against making the Alcoran a rule of faith.



From the positive, and dogmatic manner, in which this author delivers his 

opinions, and answers objections made to his sentiments -- one would 

conclude, that he was some pedantic pedagogue who had been accustomed to 

deliver his dogmas to pupils, who always placed implicit faith in what he 

delivered.



But, why is this provision so ridiculous? because, says this author, it is 

unnecessary. But, why is it unnecessary? "because, the principles and 

habits, as well as the power of the Americans are directly opposed to 

standing armies; and there is as little necessity to guard against them by 

positive constitutions, as to prohibit the establishment of the Mahometan 

religion." It is admitted then, that a standing army in time of peace, is an 

evil. I ask then, why should this government be authorised to do evil? If 

the principles and habits of the people of this country are opposed to 

standing armies in time of peace, if they do not contribute to the public 

good, but would endanger the public liberty and happiness, why should the 

government be vested with the power? No reason can be given, why rulers 

should be authorised to do, what, if done, would oppose the principles and 

habits of the people, and endanger the public safety, but there is every 

reason in the world, that they should be prohibited from the exercise of 

such a power. But this author supposes, that no danger is to be apprehended 

from the exercise of this power, because, if armies are kept up, it will be 

by the people themselves, and therefore, to provide against it, would be as 

absurd as for a man to "pass a law in his family, that no troops should be 

quartered in his family by his consent." This reasoning supposes, that the 

general government is to be exercised by the people of America themselves -- 

But such an idea is groundless and absurd. There is surely a distinction 

between the people and their rulers, even when the latter are 

representatives of the former. -- They certainly are not identically the 

same, and it cannot be disputed, but it may and often does happen, that they 

do not possess the same sentiments or pursue the same interests. I think I 

have shewn, that as this government is constituted, there is little reason 

to expect, that the interest of the people and their rulers will be the 

same.



Besides, if the habits and sentiments of the people of America are to be 

relied upon, as the sole security against the encroachment of their rulers, 

all restrictions in constitutions are unnecessary; nothing more is 

requisite, than to declare who shall be authorized to exercise the powers of 

government, and about this we need not be very careful -- for the habits and 

principles of the people will oppose every abuse of power. This I suppose to 

be the sentiments of this author, as it seems to be of many of the advocates 

of this new system. An opinion like this, is as directly opposed to the 

principles and habits of the people of America, as it is to the sentiments 

of every writer of reputation on the science of government, and repugnant to 

the principles of reason and common sense.



The idea that there is no danger of the establishment of a standing army, 

under the new constitution, is without foundation.



It is a well known fact, that a number of those who had an agency in 

producing this system, and many of those who it is probable will have a 

principal share in the administration of the government under it, if it is 

adopted, are avowedly in favour of standing armies. It is a language common 

among them, "That no people can be kept in order, unless the government have 

an army to awe them into obedience; it is necessary to support the dignity 

of government, to have a military establishment." And there will not be 

wanting a variety of plausible reason to justify the raising one, drawn from 

the danger we are in from the Indians on our frontiers, or from the European 

provinces in our neighbourhood. If to this we add, that an army will afford 

a decent support, and agreeable employment to the young men of many 

families, who are too indolent to follow occupations that will require care 

and industry, and too poor to live without doing any business[,] we can have 

little reason to doubt, but that we shall have a large standing army, as 

soon as this government can find money to pay them, and perhaps sooner.



A writer, who is the boast of the advocates of this new constitution, has 

taken great pains to shew, that this power was proper and necessary to be 

vested in the general government.



He sets out with calling in question the candour and integrity of those who 

advance the objection, and with insinuating, that it is their intention to 

mislead the people, by alarming their passions, rather than to convince them 

by arguments addressed to their understandings.



The man who reproves another for a fault, should be careful that he himself 

be not guilty of it. How far this writer has manifested a spirit of candour, 

and has pursued fair reasoning on this subject, the impartial public will 

judge, when his arguments pass before them in review.



He first attempts to shew, that this objection is futile and disingenuous, 

because the power to keep up standing armies, in time of peace, is vested, 

under the present government, in the legislature of every state in the 

union, except two. Now this is so far from being true, that it is expressly 

declared, by the present articles of confederation, that no body of forces 

"shall be kept up by any state, in time of peace, except such number only, 

as in the judgment of the United States in Congress assembled, shall be 

deemed requisite to garrison the forts necessary for the defence of such 

state." Now, was it candid and ingenuous to endeavour to persuade the 

public, that the general government had no other power than your own 

legislature have on this head; when the truth is, your legislature have no 

authority to raise and keep up any forces?



He next tells us, that the power given by this constitution, on this head, 

is similar to that which Congress possess under the present confederation. 

As little ingenuity is manifested in this representation as in that of the 

former. 



I shall not undertake to enquire whether or not Congress are vested with a 

power to keep up a standing army in time of peace; it has been a subject. 

warmly debated in Congress, more than once, since the peace; and one of the 

most respectable states in the union, were so fully convinced that they had 

no such power, that they expressly instructed their delegates to enter a 

solemn protest against it on the journals of Congress, should they attempt 

to exercise it.



But should it be admitted that they have the power, there is such a striking 

dissimilarity between the restrictions under which the present Congress can 

exercise it, and that of the proposed government, that the comparison will 

serve rather to shew the impropriety of vesting the proposed government with 

the power, than of justifying it.



It is acknowledged by this writer, that the powers of Congress, under the 

present confederation, amount to little more than that of recommending. If 

they determine to raise troops, they are obliged to effect it through the 

authority of the state legislatures. This will, in the first instance, be a 

most powerful restraint upon them, against ordering troops to be raised. But 

if they should vote an army, contrary to the opinion and wishes of the 

people, the legislatures of the respective states would not raise them. 

Besides, the present Congress hold their places at the will and pleasure of 

the legislatures of the states who send them, and no troops can be raised, 

but by the assent of nine states out of the thirteen. Compare the power 

proposed to be lodged in the legislature on this head, under this 

constitution, with that vested in the present Congress, and every person of 

the least discernment, whose understanding is not totally blinded by 

prejudice, will perceive, that they bear no analogy to each other. Under the 

present confederation, the representatives of nine states, out of thirteen, 

must assent to the raising of troops, or they cannot be levied: under the 

proposed constitution, a less number than the representatives of two states, 

in the house of representatives, and the representatives of three states and 

an half in the senate, with the assent of the president, may raise any number 

of troops they please. The present Congress are restrained from an undue 

exercise of this power, from this consideration, they know [that] the state 

legislatures, through whose authority it must be carried into effect, would 

not comply with the requisition for the purpose, if it was evidently opposed 

to the public good: the proposed constitution authorizes the legislature to 

carry their determinations into execution, without the intervention of any 

other body between them and the people. The Congress under the present form 

are amenable to, and removable by, the legislatures of the respective 

states, and are chosen for one year only: the proposed constitution does not 

make the members of the legislature accountable to, or removeable by the 

state legislatures at all; and they are chosen, the one house for six, and 

the other for two years; and cannot be removed until their time of service 

is expired, let them conduct [themselves] ever so badly. -- The public will 

judge, from the above comparison, how just a claim this writer has to that 

candour he affects to possess. In the mean time, to convince him, and the 

advocates for this system, that I possess some share of candor, I pledge 

myself to give up all opposition to it, on the head of standing armies, if 

the power to raise them be restricted as it is in the present confederation; 

and I believe I may safely answer, not only for myself, but for all who make 

the objection, that they will be satisfied with less.



                                                Brutus.



                          X



                    24 January 1788



To the People of the State of New-York.



The liberties of a people are in danger from a large standing army, not only 

because the rulers may employ them for the purposes of supporting themselves 

in any usurpations of power, which they may see proper to exercise, but 

there is great hazard, that an army will subvert the forms of the 

government, under whose authority, they are raised, and establish one, 

according to the pleasure of their leader.



We are informed, in the faithful pages of history, of such events frequently 

happening. -- Two instances have been mentioned in a former paper. They are 

so remarkable, that they are worthy of the most careful attention of every 

lover of freedom. -- They are taken from the history of the two most 

powerful nations that have ever existed in the world; and who are the most 

renowned, for the freedom they enjoyed, and the excellency of their 

constitutions: -- I mean Rome and Britain.



In the first, the liberties of the commonwealth was destroyed, and the 

constitution overturned, by an army, lead by Julius Cesar, who was appointed 

to the command, by the constitutional authority of that commonwealth. He 

changed it from a free republic, whose fame had sounded, and is still 

celebrated by all the world, into that of the most absolute despotism. A 

standing army effected this change, and a standing army supported it through 

a succession of ages, which are marked in the annals of history, with the 

most horrid cruelties, bloodshed, and carnage; -- The most devilish, 

beastly, and unnatural vices, that ever punished or disgraced human nature.



The same army, that in Britain, vindicated the liberties of that people from 

the encroachments and despotism of a tyrant king, assisted Cromwell, their 

General, in wresting from the people, that liberty they had so dearly 

earned. 



You may be told, these instances will not apply to our case: -- But those 

who would persuade you to believe this, either mean to deceive you, or have 

not themselves considered the subject.



I firmly believe, no country in the world had ever a more patriotic army, 

than the one which so ably served this country, in the late war.



But had the General who commanded them, been possessed of the spirit of a 

Julius Cesar or a Cromwell, the liberties of this country, had in all 

probability, terminated with the war; or had they been maintained, might 

have cost more blood and treasure, than was expended in the conflict with 

Great-Britain. When an anonimous writer addressed the officers of the army 

at the close of the war, advising them not to part with their arms, until 

justice was done them -- the effect it had is well known. It affected them 

like an electric shock. He wrote like Cesar; and had the commander in chief, 

and a few more officers of rank, countenanced the measure, the desperate 

resolution had been taken, to refuse to disband. What the consequences of 

such a determination would have been, heaven only knows. -- The army were in 

the full vigor of health and spirits, in the habit of discipline, and 

possessed of all our military stores and apparatus. They would have acquired 

great accessions of strength from the country. -- Those who were disgusted at 

our republican forms of government (for such there then were, of high rank 

among us) would have lent them all their aid. -- We should in all 

probability have seen a constitution and laws, dictated to us, at the head 

of an army, and at the point of a bayonet, and the liberties for which we 

had so severely struggled, snatched from us in a moment. It remains a 

secret, yet to be revealed, whether this measure was not suggested, or at 

least countenanced, by some, who have had great influence in producing the 

present system. -- Fortunately indeed for this country, it had at the head 

of the army, a patriot as well as a general; and many of our principal 

officers, had not abandoned the characters of citizens, by assuming that of 

soldiers, and therefore, the scheme proved abortive. But are we to expect, 

that this will always be the case? Are we so much better than the people of 

other ages and of other countries, that the same allurements of power and 

greatness, which led them aside from their duty, will have no influence upon 

men in our country? Such an idea, is wild and extravagant. -- Had we indulged 

such a delusion, enough has appeared in a little time past, to convince the 

most credulous, that the passion for pomp, power and greatness, works as 

powerfully in the hearts of many of our better sort, as it ever did in any 

country under heaven. -- Were the same opportunity again to offer, we should 

very probably be grossly disappointed, if we made dependence, that all who 

then rejected the overture, would do it again. 



From these remarks, it appears, that the evil to be feared from a large 

standing army in time of peace, does not arise solely from the apprehension, 

that the rulers may employ them for the purpose of promoting their own 

ambitious views, but that equal, and perhaps greater danger, is to be 

apprehended from their overturning the constitutional powers of the 

government, and assuming the power to dictate any form they please.



The advocates for power, in support of this right in the proposed 

government, urge that a restraint upon the discretion of the legislatures, 

in respect to military establishments in time of peace, would be improper to 

be imposed, because they say, it will be necessary to maintain small 

garrisons on the frontiers, to guard against the depredations of the 

Indians, and to be prepared to repel any encroachments or invasions that may 

be made by Spain or Britain.



The amount of this argument striped of the abundant verbages with which the 

author has dressed it, is this:



It will probably be necessary to keep up a small body of troops to garrison 

a few posts, which it will be necessary to maintain, in order to guard 

against the sudden encroachments of the Indians, or of the Spaniards and 

British; and therefore, the general government ought to be invested with 

power to raise and keep up a standing army in time of peace, without 

restraint; at their discretion.



I confess, I cannot perceive that the conclusion follows from the premises. 

Logicians say, it is not good reasoning to infer a general conclusion from 

particular premises: though I am not much of a Logician, it seems to me, 

this argument is very like that species of reasoning.



When the patriots in the parliament in Great-Britain, contended with such 

force of argument, and all the powers of eloquence, against keeping up 

standing armies in time of peace, it is obvious, they never entertained an 

idea, that small garrisons on their frontiers, or in the neighbourhood of 

powers, from whom they were in danger of encroachments, or guards, to take 

care of public arsenals would thereby be prohibited.



The advocates for this power farther urge that it is necessary, because it 

may, and probably will happen, that circumstances will render it requisite 

to raise an army to be prepared to repel attacks of an enemy, before a 

formal declaration of war, which in modern times has fallen into disuse. If 

the constitution prohibited the raising an army, until a war actually 

commenced, it would deprive the government of the power of providing for the 

defence of the country, until the enemy were within our territory. If the 

restriction is not to extend to the raising armies in cases of emergency, 

but only to the keeping them up, this would leave the matter to the 

discretion of the legislature; and they might, under the pretence that there 

was danger of an invasion, keep up the army as long as they judged proper -- 

and hence it is inferred, that the legislature should have authority to 

raise and keep up an army without any restriction. But from these premises 

nothing more will follow than this, that the legislature should not be so 

restrained, as to put it out of their power to raise an army, when such 

exigencies as are instanced shall arise. But it does not thence follow, that 

the government should be empowered to raise and maintain standing armies at 

their discretion as well in peace as in war. If indeed, it is impossible to 

vest the general government with the power of raising troops to garrison the 

frontier posts, to guard arsenals, or to be prepared to repel an attack, 

when we saw a power preparing to make one, without giving them a general and 

indefinite authority, to raise and keep up armies, without any restriction 

or qualification, then this reasoning might have weight; but this has not 

been proved nor can it be.



It is admitted that to prohibit the general government, from keeping up 

standing armies, while yet they were authorised to raise them in case of 

exigency, would be an insufficient guard against the danger. A discretion of 

such latitude would give room to elude the force of the provision.



It is also admitted that an absolute prohibition against raising troops, 

except in cases of actual war, would be improper; because it will be 

requisite to raise and support a small number of troops to garrison the 

important frontier posts, and to guard arsenals; and it may happen, that the 

danger of an attack from a foreign power may be so imminent, as to render it 

highly proper we should raise an army, in order to be prepared to resist 

them. But to raise and keep up forces for such purposes and on such 

occasions, is not included in the idea, of keeping up standing armies in 

times of peace.



It is a thing very practicable to give the government sufficient authority 

to provide for these cases, and at the same time to provide a reasonable and 

competent security against the evil of a standing army -- a clause to the 

following purpose would answer the end:



As standing armies in time of peace are dangerous to liberty, and have often 

been the means of overturning the best constitutions of government, no 

standing army, or troops of any description whatsoever, shall be raised or 

kept up by the legislature, except so many as shall be necessary for guards 

to the arsenals of the United States, or for garrisons to such posts on the 

frontiers, as it shall be deemed absolutely necessary to hold, to secure the 

inhabitants, and facilitate the trade with the Indians: unless when the 

United States are threatened with an attack or invasion from some foreign 

power, in which case the legislature shall be authorised to raise an army to 

be prepared to repel the attack; provided that no troops whatsoever shall be 

raised in time of peace, without the assent of two thirds of the members, 

composing both houses of the legislature.



A clause similar to this would afford sufficient latitude to the 

legislature to raise troops in all cases that were really necessary, and at 

the same time competent security against the establishment of that dangerous 

engine of despotism a standing army.



The same writer who advances the arguments I have noticed, makes a number of 

other observations with a view to prove that the power to raise and keep up 

armies, ought to be discretionary in the general legislature; some of them 

are curious; he instances the raising of troops in Massachusetts and 

Pennsylvania, to shew the necessity of keeping a standing army in time of 

peace; the least reflection must convince every candid mind that both these 

cases are totally foreign to his purpose -- Massachusetts raised a body of 

troops for six months, at the expiration of which they were to disband of 

course; this looks very little like a standing army. But beside, was that 

commonwealth in a state of peace at that time? So far from it that they were 

in the most violent commotions and contents, and their legislature had 

formally declared that an unnatural rebellion existed within the state. The 

situation of Pennsylvania was similar; a number of armed men had levied war 

against the authority of the state, and openly avowed their intention of 

withdrawing their allegiance from it. To what purpose examples are brought, 

of states raising troops for short periods in times of war or insurrections, 

on a question concerning the propriety of keeping up standing armies in 

times of peace, the public must judge.



It is farther said, that no danger can arise from this power being lodged in 

the hands of the general government, because the legislatures will be a 

check upon them, to prevent their abusing it.



This is offered, as what force there is in it will hereafter receive a more 

particular examination. At present, I shall only remark, that it is 

difficult to conceive how the state legislatures can, in any case, hold a 

check over the general legislature, in a constitutional way. The latter has, 

in every instance to which their powers extend, complete controul over the 

former. The state legislatures can, in no case, by law, resolution, or 

otherwise, of right, prevent or impede the general government, from enacting 

any law, or executing it, which this constitution authorizes them to enact 

or execute. If then the state legislatures check the general legislatures 

[sic], it must be by exciting the people to resist constitutional laws. In 

this way every individual, or every body of men, may check any government, 

in proportion to the influence they may have over the body of the people. 

But such kinds of checks as these, though they sometimes correct the abuses 

of government, oftner destroy all government.



It is further said, that no danger is to be apprehended from the exercise of 

this power, because it is lodged in the hands of representatives of the 

people; if they abuse it, it is in the power of the people to remove them, 

and chuse others who will pursue their interests. Not to repeat what has 

been said before, That it is unwise in any people, to authorize their rulers 

to do, what, if done, would prove injurious -- I have, in some former 

numbers, shewn, that the representation in the proposed government will be a 

mere shadow without the substance. I am so confident that I am well founded 

in this opinion, that I am persuaded, if it was to be adopted or rejected, 

upon a fair discussion of its merits, without taking into contemplation 

circumstances extraneous to it, as reasons for its adoption, 

nineteen-twentieths of the sensible men in the union would reject it on this 

account alone; unless its powers were confined to much fewer objects than it 

embraces.



                                                Brutus.



                          XI



                    31 January 1788



The nature and extent of the judicial power of the United States, proposed 

to be granted by this constitution, claims our particular attention.



Much has been said and written upon the subject of this new system on both 

sides, but I have not met with any writer, who has discussed the judicial 

powers with any degree of accuracy. And yet it is obvious, that we can form 

but very imperfect ideas of the manner in which this government will work, 

or the effect it will have in changing the internal police and mode of 

distributing justice at present subsisting in the respective states, without 

a thorough investigation of the powers of the judiciary and of the manner in 

which they will operate. This government is a complete system, not only for 

making, but for executing laws. And the courts of law, which will be 

constituted by it, are not only to decide upon the constitution and the laws 

made in pursuance of it, but by officers subordinate to them to execute all 

their decisions. The real effect of this system of government, will 

therefore be brought home to the feelings of the people, through the medium 

of the judicial power. It is, moreover, of great importance, to examine with 

care the nature and extent of the judicial power, because those who are to 

be vested with it, are to be placed in a situation altogether unprecedented 

in a free country. They are to be rendered totally independent, both of the 

people and the legislature, both with respect to their offices and salaries. 

No errors they may commit can be corrected by any power above them, if any 

such power there be, nor can they be removed from office for making ever so 

many erroneous adjudications.



The only causes for which they can be displaced, is, conviction of treason, 

bribery, and high crimes and misdemeanors.



This part of the plan is so modelled, as to authorise the courts, not only 

to carry into execution the powers expressly given, but where these are 

wanting or ambiguously expressed, to supply what is wanting by their own 

decisions.



That we may be enabled to form a just opinion on this subject, I shall, in 

considering it,



1st. Examine the nature and extent of the judicial powers -- and



2d. Enquire, whether the courts who are to exercise them, are so constituted 

as to afford reasonable ground of confidence, that they will exercise them 

for the general good.



With a regard to the nature and extent of the judicial powers, I have to 

regret my want of capacity to give that full and minute explanation of them 

that the subject merits. To be able to do this, a man should be possessed of 

a degree of law knowledge far beyond what I pretend to. A number of hard 

words and technical phrases are used in this part of the system, about the 

meaning of which gentlemen learned in the law differ.



Its advocates know how to avail themselves of these phrases. In a number of 

instances, where objections are made to the powers given to the judicial, 

they give such an explanation to the technical terms as to avoid them.



Though I am not competent to give a perfect explanation of the powers 

granted to this department of the government, I shall yet attempt to trace 

some of the leading features of it, from which I presume it will appear, 

that they will operate to a total subversion of the state judiciaries, if 

not, to the legislative authority of the states.



In article 3d, sect. 2d, it is said, "The judicial power shall extend to 

all cases in law and equity arising under this constitution, the laws of the 

United States, and treaties made, or which shall be made, under their 

authority, &c."



The first article to which this power extends, is, all cases in law and 

equity arising under this constitution.



What latitude of construction this clause should receive, it is not easy to 

say. At first view, one would suppose, that it meant no more than this, that 

the courts under the general government should exercise, not only the powers 

of courts of law, but also that of courts of equity, in the manner in which 

those powers are usually exercised in the different states. But this cannot 

be the meaning, because the next clause authorises the courts to take 

cognizance of all cases in law and equity arising under the laws of the 

United States; this last article, I conceive, conveys as much power to the 

general judicial as any of the state courts possess.



The cases arising under the constitution must be different from those 

arising under the laws, or else the two clauses mean exactly the same thing. 



The cases arising under the constitution must include such, as bring into 

question its meaning, and will require an explanation of the nature and 

extent of the powers of the different departments under it.



This article, therefore, vests the judicial with a power to resolve all 

questions that may arise on any case on the construction of the 

constitution, either in law or in equity.



1st. They are authorised to determine all questions that may arise upon the 

meaning of the constitution in law. This article vests the courts with 

authority to give the constitution a legal construction, or to explain it 

according to the rules laid down for construing a law. -- These rules give a 

certain degree of latitude of explanation. According to this mode of 

construction, the courts are to give such meaning to the constitution as 

comports best with the common, and generally received acceptation of the 

words in which it is expressed, regarding their ordinary and popular use, 

rather than their grammatical propriety. Where words are dubious, they will 

be explained by the context. The end of the clause will be attended to, and 

the words will be understood, as having a view to it; and the words will not 

be so understood as to bear no meaning or a very absurd one.



2d. The judicial are not only to decide questions arising upon the meaning 

of the constitution in law, but also in equity.



By this they are empowered, to explain the constitution according to the 

reasoning spirit of it, without being confined to the words or letter.



"From this method of interpreting laws (says Blackstone) by the reason of 

them, arises what we call equity;" which is thus defined by Grotius, "the 

correction of that, wherein the law, by reason of its universality, is 

deficient["]; for since in laws all cases cannot be foreseen, or expressed, 

it is necessary, that when the decrees of the law cannot be applied to 

particular cases, there should some where be a power vested of defining 

those circumstances, which had they been foreseen the legislator would have 

expressed; and these are the cases, which according to Grotius, ["]lex non 

exacte definit, sed arbitrio boni viri permittet."



The same learned author observes, "That equity, thus depending essentially 

upon each individual case, there can be no established rules and fixed 

principles of equity laid down, without destroying its very essence, and 

reducing it to a positive law."



From these remarks, the authority and business of the courts of law, under 

this clause, may be understood.



They will give the sense of every article of the constitution, that may from 

time to time come before them. And in their decisions they will not confine 

themselves to any fixed or established rules, but will determine, according 

to what appears to them, the reason and spirit of the constitution. The 

opinions of the supreme court, whatever they may be, will have the force of 

law; because there is no power provided in the constitution, that can 

correct their errors, or controul their adjudications. From this court there 

is no appeal. And I conceive the legislature themselves, cannot set aside a 

judgment of this court, because they are authorised by the constitution to 

decide in the last resort. The legislature must be controuled by the 

constitution, and not the constitution by them. They have therefore no more 

right to set aside any judgment pronounced upon the construction of the 

constitution, than they have to take from the president, the chief command 

of the army and navy, and commit it to some other person. The reason is 

plain; the judicial and executive derive their authority from the same 

source, that the legislature do theirs; and therefore in all cases, where 

the constitution does not make the one responsible to, or controulable by 

the other, they are altogether independent of each other.



The judicial power will operate to effect, in the most certain, but yet 

silent and imperceptible manner, what is evidently the tendency of the 

constitution: -- I mean, an entire subversion of the legislative, executive 

and judicial powers of the individual states. Every adjudication of the 

supreme court, on any question that may arise upon the nature and extent of 

the general government, will affect the limits of the state jurisdiction. In 

proportion as the former enlarge the exercise of their powers, will that of 

the latter be restricted.



That the judicial power of the United States, will lean strongly in favour 

of the general government, and will give such an explanation to the 

constitution, as will favour an extension of its jurisdiction, is very 

evident from a variety of considerations.



1st. The constitution itself strongly countenances such a mode of 

construction. Most of the articles in this system, which convey powers of 

any considerable importance, are conceived in general and indefinite terms, 

which are either equivocal, ambiguous, or which require long definitions to 

unfold the extent of their meaning. The two most important powers committed 

to any government, those of raising money, and of raising and keeping up 

troops, have already been considered, and shewn to be unlimitted by any 

thing but the discretion of the legislature. The clause which vests the 

power to pass all laws which are proper and necessary, to carry the powers 

given into execution, it has been shewn, leaves the legislature at liberty, 

to do every thing, which in their judgment is best. It is said, I know, that 

this clause confers no power on the legislature, which they would not have 

had without it -- though I believe this is not the fact, yet, admitting it 

to be, it implies that the constitution is not to receive an explanation 

strictly, according to its letter; but more power is implied than is 

expressed. And this clause, if it is to be considered, as explanatory of the 

extent of the powers given, rather than giving a new power, is to be 

understood as declaring, that in construing any of the articles conveying 

power, the spirit, intent and design of the clause, should be attended to, 

as well as the words in their common acceptation.



This constitution gives sufficient colour for adopting an equitable 

construction, if we consider the great end and design it professedly has in 

view -- these appear from its preamble to be, "to form a more perfect union, 

establish justice, insure domestic tranquility, provide for the common 

defence, promote the general welfare, and secure the blessings of liberty to 

ourselves and posterity." The design of this system is here expressed, and 

it is proper to give such a meaning to the various parts, as will best 

promote the accomplishment of the end; this idea suggests itself naturally 

upon reading the preamble, and will countenance the court in giving the 

several articles such a sense, as will the most effectually promote the ends 

the constitution had in view -- how this manner of explaining the 

constitution will operate in practice, shall be the subject of future 

enquiry.



2d. Not only will the constitution justify the courts in inclining to this 

mode of explaining it, but they will be interested in using this latitude 

of interpretation. Every body of men invested with office are tenacious of 

power; they feel interested, and hence it has become a kind of maxim, to 

hand down their offices, with all its rights and privileges, unimpared to 

their successors; the same principle will influence them to extend their 

power, and increase their rights; this of itself will operate strongly upon 

the courts to give such a meaning to the constitution in all cases where it 

can possibly be done, as will enlarge the sphere of their own authority. 

Every extension of the power of the general legislature, as well as of the 

judicial powers, will increase the powers of the courts; and the dignity and 

importance of the judges, will be in proportion to the extent and magnitude 

of the powers they exercise. I add, it is highly probable the emolument of 

the judges will be increased, with the increase of the business they will 

have to transact and its importance. From these considerations the judges 

will be interested to extend the powers of the courts, and to construe the 

constitution as much as possible, in such a way as to favour it; and that 

they will do it, appears probable.



3d. Because they will have precedent to plead, to justify them in it. It is 

well known, that the courts in England, have by their own authority, 

extended their jurisdiction far beyond the limits set them in their 

original institution, and by the laws of the land.



The court of exchequer is a remarkable instance of this. It was originally 

intended principally to recover the king's debts, and to order the revenues 

of the crown. It had a common law jurisdiction, which was established merely 

for the benefit of the king's accomptants. We learn from Blackstone, that 

the proceedings in this court are grounded on a writ called quo minus, in 

which the plaintiff suggests, that he is the king's farmer or debtor, and 

that the defendant hath done him the damage complained of, by which he is 

less able to pay the king. These suits, by the statute of Rutland, are 

expressly directed to be confined to such matters as specially concern the 

king, or his ministers in the exchequer. And by the articuli super cartas, 

it is enacted, that no common pleas be thenceforth held in the exchequer 

contrary to the form of the great charter: but now any person may sue in the 

exchequer. The surmise of being debtor to the king being matter of form, and 

mere words of course; and the court is open to all the nation.



When the courts will have a precedent before them of a court which extended 

its jurisdiction in opposition to an act of the legislature, is it not to be 

expected that they will extend theirs, especially when there is nothing in 

the constitution expressly against it? and they are authorised to construe 

its meaning, and are not under any controul?



This power in the judicial, will enable them to mould the government, into 

almost any shape they please. -- The manner in which this may be effected we 

will hereafter examine.



                                                Brutus.



                         XII



                    7 February 1788



In my last, I shewed, that the judicial power of the United States under the 

first clause of the second section of article eight, would be authorized to 

explain the constitution, not only according to its letter, but according to 

its spirit and intention; and having this power, they would strongly incline 

to give it such a construction as to extend the powers of the general 

government, as much as possible, to the diminution, and finally to the 

destruction, of that of the respective states.



I shall now proceed to shew how this power will operate in its exercise to 

effect these purposes. In order to perceive the extent of its influence, I 

shall consider,



First. How it will tend to extend the legislative authority.



Second. In what manner it will increase the jurisdiction of the courts, and 



Third. The way in which it will diminish, and destroy, both the legislative 

and judicial authority of the United States.



First. Let us enquire how the judicial power will effect an extension of the 

legislative authority.



Perhaps the judicial power will not be able, by direct and positive decrees, 

ever to direct the legislature, because it is not easy to conceive how a 

question can be brought before them in a course of legal discussion, in 

which they can give a decision, declaring, that the legislature have certain 

powers which they have not exercised, and which, in consequence of the 

determination of the judges, they will be bound to exercise. But it is easy 

to see, that in their adjudications they may establish certain principles, 

which being received by the legislature, will enlarge the sphere of their 

power beyond all bounds. 



It is to be observed, that the supreme court has the power, in the last 

resort, to determine all questions that may arise in the course of legal 

discussion, on the meaning and construction of the constitution. This power 

they will hold under the constitution, and independent of the legislature. 

The latter can no more deprive the former of this right, than either of 

them, or both of them together, can take from the president, with the advice 

of the senate, the power of making treaties, or appointing ambassadors.



In determining these questions, the court must and will assume certain 

principles, from which they will reason, in forming their decisions. These 

principles, whatever they may be, when they become fixed, by a course of 

decisions, will be adopted by the legislature, and will be the rule by which 

they will explain their own powers. This appears evident from this 

consideration, that if the legislature pass laws, which, in the judgment of 

the court, they are not authorised to do by the constitution, the court will 

not take notice of them; for it will not be denied, that the constitution is 

the highest or supreme law. And the courts are vested with the supreme and 

uncontroulable power, to determine, in all cases that come before them, what 

the constitution means; they cannot, therefore, execute a law, which, in 

their judgment, opposes the constitution, unless we can suppose they can 

make a superior law give way to an inferior. The legislature, therefore, 

will not go over the limits by which the courts may adjudge they are 

confined. And there is little room to doubt but that they will come up to 

those bounds, as often as occasion and opportunity may offer, and they may 

judge it proper to do it. For as on the one hand, they will not readily pass 

laws which they know the courts will not execute, so on the other, we may be 

sure they will not scruple to pass such as they know they will give effect, 

as often as they may judge it proper. 



From these observations it appears, that the judgment of the judicial, on 

the constitution, will become the rule to guide the legislature in their 

construction of their powers.



What the principles are, which the courts will adopt, it is impossible for 

us to say; but taking up the powers as I have explained them in my last 

number, which they will possess under this clause, it is not difficult to 

see, that they may, and probably will, be very liberal ones.



We have seen, that they will be authorized to give the constitution a 

construction according to its spirit and reason, and not to confine 

themselves to its letter.



To discover the spirit of the constitution, it is of the first importance 

to attend to the principal ends and designs it has in view. These are 

expressed in the preamble, in the following words, viz. "We, the people of 

the United States, in order to form a more perfect union, establish justice, 

insure domestic tranquility, provide for the common defence, promote the 

general welfare, and secure the blessings of liberty to ourselves and our 

posterity, do ordain and establish this constitution," &c. If the end of the 

government is to be learned from these words, which are clearly designed to 

declare it, it is obvious it has in view every object which is embraced by 

any government. The preservation of internal peace -- the due administration 

of justice -- and to provide for the defence of the community, seems to 

include all the objects of government; but if they do not, they are 

certainly comprehended in the words, "to provide for the general welfare." 

If it be further considered, that this constitution, if it is ratified, will 

not be a compact entered into by states, in their corporate capacities, but 

an agreement of the people of the United States, as one great body politic, 

no doubt can remain, but that the great end of the constitution, if it is to 

be collected from the preamble, in which its end is declared, is to 

constitute a government which is to extend to every case for which any 

government is instituted, whether external or internal. The courts, 

therefore, will establish this as a principle in expounding the 

constitution, and will give every part of it such an explanation, as will 

give latitude to every department under it, to take cognizance of every 

matter, not only that affects the general and national concerns of the 

union, but also of such as relate to the administration of private justice, 

and to regulating the internal and local affairs of the different parts.



Such a rule of exposition is not only consistent with the general spirit of 

the preamble, but it will stand confirmed by considering more minutely the 

different clauses of it.



The first object declared to be in view is, "To form a perfect union." It is 

to be observed, it is not an union of states or bodies corporate; had this 

been the case the existence of the state governments, might have been 

secured. But it is a union of the people of the United States considered as 

one body, who are to ratify this constitution, if it is adopted. Now to make 

a union of this kind perfect, it is necessary to abolish all inferior 

governments, and to give the general one compleat legislative, executive and 

judicial powers to every purpose. The courts therefore will establish it as 

a rule in explaining the constitution to give it such a construction as will 

best tend to perfect the union or take from the state governments every 

power of either making or executing laws. The second object is "to establish 

justice." This must include not only the idea of instituting the rule of 

justice, or of making laws which shall be the measure or rule of right, but 

also of providing for the application of this rule or of administering 

justice under it. And under this the courts will in their decisions extend 

the power of the government to all cases they possibly can, or otherwise 

they will be restricted in doing what appears to be the intent of the 

constitution they should do, to wit, pass laws and provide for the execution 

of them, for the general distribution of justice between man and man. 

Another end declared is "to insure domestic tranquility." This comprehends a 

provision against all private breaches of the peace, as well as against all 

public commotions or general insurrections; and to attain the object of this 

clause fully, the government must exercise the power of passing laws on 

these subjects, as well as of appointing magistrates with authority to 

execute them. And the courts will adopt these ideas in their expositions. I 

might proceed to the other clause, in the preamble, and it would appear by a 

consideration of all of them separately, as it does by taking them together, 

that if the spirit of this system is to be known from its declared end and 

design in the preamble, its spirit is to subvert and abolish all the powers 

of the state government, and to embrace every object to which any government 

extends.



As it sets out in the preamble with this declared intention, so it proceeds 

in the different parts with the same idea. Any person, who will peruse the 

8th section with attention, in which most of the powers are enumerated, will 

perceive that they either expressly or by implication extend to almost every 

thing about which any legislative power can be employed. But if this 

equitable mode of construction is applied to this part of the constitution; 

nothing can stand before it.



This will certainly give the first clause in that article a construction 

which I confess I think the most natural and grammatical one, to authorise 

the Congress to do any thing which in their judgment will tend to provide for 

the general welfare, and this amounts to the same thing as general and 

unlimited powers of legislation in all cases.



                    (To be continued.)



                         XII



                    14 February 1788



           (Continued from last Thursday's paper.)



This same manner of explaining the constitution, will fix a meaning, and a 

very important one too, to the 12th [18th?] clause of the same section, 

which authorises the Congress to make all laws which shall be proper and 

necessary for carrying into effect the foregoing powers, &c. A voluminous 

writer in favor of this system, has taken great pains to convince the 

public, that this clause means nothing: for that the same powers expressed 

in this, are implied in other parts of the constitution. Perhaps it is so, 

but still this will undoubtedly be an excellent auxilliary to assist the 

courts to discover the spirit and reason of the constitution, and when 

applied to any and every of the other clauses granting power, will operate 

powerfully in extracting the spirit from them.



I might instance a number of clauses in the constitution, which, if 

explained in an equitable manner, would extend the powers of the government 

to every case, and reduce the state legislatures to nothing; but, I should 

draw out my remarks to an undue length, and I presume enough has been said 

to shew, that the courts have sufficient ground in the exercise of this 

power, to determine, that the legislature have no bounds set to them by this 

constitution, by any supposed right the legislatures of the respective 

states may have, to regulate any of their local concerns.



I proceed, 2d, To inquire, in what manner this power will increase the 

jurisdiction of the courts.



I would here observe, that the judicial power extends, expressly, to all 

civil cases that may arise save such as arise between citizens of the same 

state, with this exception to those of that description, that the judicial 

of the United States have cognizance of cases between citizens of the same 

state, claiming lands under grants of different states. Nothing more, 

therefore, is necessary to give the courts of law, under this constitution, 

complete jurisdiction of all civil causes, but to comprehend cases between 

citizens of the same state not included in the foregoing exception.



I presume there will be no difficulty in accomplishing this. Nothing more is 

necessary than to set forth, in the process, that the party who brings the 

suit is a citizen of a different state from the one against whom the suit is 

brought, and there can be little doubt but that the court will take 

cognizance of the matter, and if they do, who is to restrain them?" Indeed, 

I will freely confess, that it is my decided opinion, that the courts ought 

to take cognizance of such causes, under the powers of the constitution. For 

one of the great ends of the constitution is, "to establish justice." This 

supposes that this cannot be done under the existing governments of the 

states; and there is certainly as good reason why individuals, living in the 

same state, should have justice, as those who live in different states. 

Moreover, the constitution expressly declares, that "the citizens of each 

state shall be entitled to all the privileges and immunities of citizens in 

the several states." It will therefore be no fiction, for a citizen of one 

state to set forth, in a suit, that he is a citizen of another; for he that 

is entitled to all the privileges and immunities of a country, is a citizen 

of that country. And in truth, the citizen of one state will, under this 

constitution, be a citizen of every state.



But supposing that the party, who alledges that he is a citizen of another 

state, has recourse to fiction in bringing in his suit, it is well known, 

that the courts have high authority to plead, to justify them in suffering 

actions to be brought before them by such fictions. In my last number I 

stated, that the court of exchequer tried all causes in virtue of such a 

fiction. The court of king's bench, in England, extended their jurisdiction 

in the same way. Originally, this court held pleas, in civil cases, only of 

trespasses and other injuries alledged to be committed vi et armis. They 

might likewise, says Blackstone, upon the division of the aula regia, have 

originally held pleas of any other civil action whatsoever (except in real 

actions which are now very seldom in use) provided the defendant was an 

officer of the court, or in the custody of the marshall or prison-keeper of 

this court, for breach of the peace, &c. In process of time, by a fiction, 

this court began to hold pleas of any personal action whatsoever; it being 

surmised, that the defendant has been arrested for a supposed trespass that 

"he has never committed, and being thus in the custody of the marshall of 

the court, the plaintiff is at liberty to proceed against him, for any other 

personal injury: which surmise of being in the marshall's custody, the 

defendant is not at liberty to dispute." By a much less fiction, may the 

pleas of the courts of the United States extend to cases between citizens of 

the same state. I shall add no more on this head, but proceed briefly to 

remark, in what way this power will diminish and destroy both the 

legislative and judicial authority of the states.



It is obvious that these courts will have authority to decide upon the 

validity of the laws of any of the states, in all cases where they come in 

question before them. Where the constitution gives the general government 

exclusive jurisdiction, they will adjudge all laws made by the states, in 

such cases, void ab initio. Where the constitution gives them concurrent 

jurisdiction, the laws of the United States must prevail, because they are 

the supreme law. In such cases, therefore, the laws of the state 

legislatures must be repealed, restricted, or so construed, as to give full 

effect to the laws of the union on the same subject. From these remarks it 

is easy to see, that in proportion as the general government acquires power 

and jurisdiction, by the liberal construction which the judges may give the 

constitution, will those of the states lose its rights, until they become so 

trifling and unimportant, as not to be worth having. I am much mistaken, if 

this system will not operate to effect this with as much celerity, as those 

who have the administration of it will think prudent to suffer it. The 

remaining objections to the judicial power shall be considered in a future 

paper.



                                                Brutus.



                        XIII



                    21 February 1788



Having in the two preceding numbers, examined the nature and tendency of the 

judicial power, as it respects the explanation of the constitution, I now 

proceed to the consideration of the other matters, of which it has 

cognizance. -- The next paragraph extends its authority, to all cases, in 

law and equity, arising under the laws of the United States. This power, as 

I understand it, is a proper one. The proper province of the judicial power, 

in any government, is, as I conceive, to declare what is the law of the 

land. To explain and enforce those laws, which the supreme power or 

legislature may pass; but not to declare what the powers of the legislature 

are. I suppose the cases in equity, under the laws, must be so construed, as 

to give the supreme court not only a legal, but equitable jurisdiction of 

cases which may be brought before them, or in other words, so, as to give 

them, not only the powers which are now exercised by our courts of law, but 

those also, which are now exercised by our court of chancery. If this be the 

meaning, I have no other objection to the power, than what arises from the 

undue extension of the legislative power. For, I conceive that the judicial 

power should be commensurate with the legislative. Or, in other words, the 

supreme court should have authority to determine questions arising under the 

laws of the union.



The next paragraph which gives a power to decide in law and equity, on all 

cases arising under treaties, is unintelligible to me. I can readily 

comprehend what is meant by deciding a case under a treaty. For as treaties 

will be the law. of the land, every person who have rights or privileges 

secured by treaty, will have aid of the courts of law, in recovering them. 

But I do not understand, what is meant by equity arising under a treaty. I 

presume every right which can be claimed under a treaty, must be claimed by 

virtue of some article or clause contained in it, which gives the right in 

plain and obvious words; or at least, I conceive, that the rules for 

explaining treaties, are so well ascertained, that there is no need of 

having recourse to an equitable construction. If under this power, the 

courts are to explain treaties, according to what they conceive are their 

spirit, which is nothing less than a power to give them whatever extension 

they may judge proper, it is a dangerous and improper power. The cases 

affecting ambassadors, public ministers, and consuls -- of admiralty and 

maritime jurisdiction; controversies to which the United States are a party, 

and controversies between states, it is proper should be under the 

cognizance of the courts of the union, because none but the general 

government, can, or ought to pass laws on their subjects. But, I conceive 

the clause which extends the power of the judicial to controversies arising 

between a state and citizens of another state, improper in itself, and will, 

in its exercise, prove most pernicious and destructive.



It is improper, because it subjects a state to answer in a court of law, to 

the suit of an individual. This is humiliating and degrading to a 

government, and, what I believe, the supreme authority of no state ever 

submitted to.



The states are now subject to no such actions. All contracts entered into by 

individuals with states, were made upon the faith and credit of the states; 

and the individuals never had in contemplation any compulsory mode of 

obliging the government to fulfil its engagements.



The evil consequences that will flow from the exercise of this power, will 

best appear by tracing it in its operation. The constitution does not direct 

the mode in which an individual shall commence a suit against a state or the 

manner in which the judgement of the court shall be carried into execution, 

but it gives the legislature full power to pass all laws which shall be 

proper and necessary for the purpose. And they certainly must make provision 

for these purposes, or otherwise the power of the judicial will be nugatory. 

For, to what purpose will the power of a judicial be, if they have no mode, 

in which they can call the parties before them? Or of what use will it be, 

to call the parties to answer, if after they have given judgement, there is 

no authority to execute the judgment? We must, therefore, conclude, that the 

legislature will pass laws which will be effectual in this head. An 

individual of one state will then have a legal remedy against a state for 

any demand he may have against a state to which he does not belong. Every 

state in the union is largely indebted to individuals. For the payment of 

these debts they have given notes payable to the bearer. At least this is 

the case in this state. Whenever a citizen of another state becomes 

possessed of one of these notes, he may commence an action in the supreme 

court of the general government; and I cannot see any way in which he can be 

prevented from recovering. It is easy to see, that when this once happens, 

the notes of the state will pass rapidly from the hands of citizens of the 

state to those of other states.



And when the citizens of other states possess them, they may bring suits 

against the state for them, and by this means, judgments and executions may 

be obtained against the state for the whole amount of the state debt. It is 

certain the state, with the utmost exertions it can make, will not be able 

to discharge the debt she owes, under a considerable number of years, 

perhaps with the best management, it will require twenty or thirty years to 

discharge it. This new system will protract the time in which the ability of 

the state will enable them to pay off their debt, because all the funds of 

the state will be transferred to the general government, except those which 

arise from internal taxes.



The situation of the states will be deplorable. By this system, they will 

surrender to the general government, all the means of raising money, and at 

the same time, will subject themselves to suits at law, for the recovery of 

the debts they have contracted in effecting the revolution.



The debts of the individual states will amount to a sum, exceeding the 

domestic debt of the United States; these will be left upon them, with power 

in the judicial of the general government, to enforce their payment, while 

the general government will possess an exclusive command of the most 

productive funds, from which the states can derive money, and a command of 

every other source of revenue paramount to the authority of any state.



It may be said that the apprehension that the judicial power will operate in 

this manner is merely visionary, for that the legislature will never pass 

laws that will work these effects. Or if they were disposed to do it, they 

cannot provide for levying an execution on a state, for where will the 

officer find property whereon to levy?



To this I would reply, if this is a power which will not or cannot be 

executed, it was useless and unwise to grant it to the judicial. For what 

purpose is a power given which it is imprudent or impossible to exercise? If 

it be improper for a government to exercise a power, it is improper they 

should be vested with it. And it is unwise to authorise a government to do 

what they cannot effect.



As to the idea that the legislature cannot provide for levying an execution 

on a state, I believe it is not well founded. I presume the last paragraph 

of the 8th section of article 1, gives the Congress express power to pass 

any laws they may judge proper and necessary for carrying into execution the 

power vested in the judicial department. And they must exercise this power, 

or otherwise the courts of justice will not be able to carry into effect the 

authorities with which they are invested. For the constitution does not 

direct the mode in which the courts are to proceed, to bring parties before 

them, to try causes, or to carry the judgment of the courts into execution. 

Unless they are pointed out by law, how are these to proceed, in any of the 

cases of which they have cognizance? They have the same authority to 

establish regulations in respect to these matters, where a state is a party, 

as where an individual is a party. The only difficulty is, on whom shall 

process be served, when a state is a party, and how shall execution be 

levied. With regard to the first, the way is easy, either the executive or 

legislative of the state may be notified, and upon proof being made of the 

service of the notice, the court may proceed to a hearing of the cause. 

Execution may be levied on any property of the state, either real or 

personal. The treasury may be seized by the officers of the general 

government, or any lands the property of the state, may be made subject to 

seizure and sale to satisfy any judgment against it. Whether the estate of 

any individual citizen may not be made answerable for the discharge of 

judgments against the state, may be worth consideration. In some 

corporations this is the case.



If the power of the judicial under this clause will extend to the cases 

above stated, it will, if executed, produce the utmost confusion, and in its 

progress, will crush the states beneath its weight. And if it does not 

extend to these cases, I confess myself utterly at a loss to give it any 

meaning. For if the citizen of one state, possessed of a written obligation, 

given in pursuance of a solemn act of the legislature, acknowledging a debt 

due to the bearer, and promising to pay it, cannot recover in the supreme 

court, I can conceive of no case in which they can recover. And it appears 

to me ridiculous to provide for obtaining judgment against a state, without 

giving the means of levying execution.



                                                Brutus.



                        XIV



                    28 February 1788



The second paragraph of sect. 2d. art. 3, is in these words: "In all cases 

affecting ambassadors, other public ministers and consuls, and those in 

which a state shall be a party, the supreme court shall have original 

jurisdiction. In all the other cases before mentioned, the supreme court 

shall have appellate jurisdiction, both as to law and fact, with such 

exceptions, and under such regulations as the Congress shall make.["]



Although it is proper that the courts of the general government should have 

cognizance of all matters affecting ambassadors, foreign ministers, and 

consuls; yet I question much the propriety of giving the supreme court 

original jurisdiction in all cases of this kind.



Ambassadors, and other public ministers, claim, and are entitled by the law 

of nations, to certain privileges, and exemptions, both for their persons 

and their servants.



The meanest servant of an ambassador is exempted by the law of nations from 

being sued for debt. Should a suit be brought against such an one by a 

citizen, through inadvertency or want of information, he will be subject to 

an action in the supreme court. All the officers concerned in issuing or 

executing the process will be liable to like actions. Thus may a citizen of 

a state be compelled, at great expence and inconveniency, to defend himself 

against a suit, brought against him in the supreme court, for inadvertently 

commencing an action against the most menial servant of an ambassador for a 

just debt.



The appellate jurisdiction granted to the supreme court, in this paragraph, 

has justly been considered as one of the most objectionable parts of the 

constitution: under this power, appeals may be had from the inferior courts 

to the supreme, in every case to which the judicial power extends, except in 

the few instances in which the supreme court will have original 

jurisdiction.



By this article, appeals will lie to the supreme court, in all criminal as 

well as civil causes. This I know, has been disputed by some; but I presume 

the point will appear clear to any one, who will attend to the connection of 

this paragraph with the one that precedes it. In the former, all the cases, 

to which the power of the judicial shall extend, whether civil or criminal, 

are enumerated. There is no criminal matter, to which the judicial power of 

the United States will extend; but such as are included under some one of 

the cases specified in this section. For this section is intended to define 

all the cases, of every description, to which the power of the judicial 

shall reach. But in all these cases it is declared, the supreme court shall 

have appellate jurisdiction, except in those which affect ambassadors, other 

public ministers and consuls, and those in which a state shall be a party. 

If then this section extends the power of the judicial, to criminal cases, 

it allows appeals in such cases. If the power of the judicial is not 

extended to criminal matters by this section, I ask, by what part of this 

system does it appear, that they have any cognizance of them?



I believe it is a new and unusual thing to allow appeals in criminal 

matters. It is contrary to the sense of our laws, and dangerous to the lives 

and liberties of the citizen. As our law now stands, a person charged with a 

crime has a right to a fair and impartial trial by a jury of his country 

[county?], and their verdict is final. If he is acquitted no other court can 

call upon him to answer for the same crime. But by this system, a man may 

have had ever so fair a trial, have been acquitted by ever so respectable a 

jury of his country; and still the officer of the government who prosecutes, 

may appeal to the supreme court. The whole matter may have a second hearing. 

By this means, persons who may have disobliged those who execute the general 

government, may be subjected to intolerable oppression. They may be kept in 

long and ruinous confinement, and exposed to heavy and insupportable 

charges, to procure the attendence of witnesses, and provide the means of 

their defence, at a great distance from their places of residence.



I can scarcely believe there can be a considerate citizen of the United 

States, that will approve of this appellate jurisdiction, as extending to 

criminal cases, if they will give themselves time for reflection.



Whether the appellate jurisdiction as it respects civil matters, will not 

prove injurious to the rights of the citizens, and destructive of those 

privileges which have ever been held sacred by Americans, and whether it 

will not render the administration of justice intolerably burthensome, 

intricate, and dilatory, will best appear, when we have considered the 

nature and operation of this power.



It has been the fate of this clause, as it has of most of those, against 

which unanswerable objections have been offered, to be explained different 

ways, by the advocates and opponents to the constitution. I confess I do not 

know what the advocates of the system, would make it mean, for I have not 

been fortunate enough to see in any publication this clause taken up and 

considered. It is certain however, they do not admit the explanation which 

those who oppose the constitution give it, or otherwise they would not so 

frequently charge them with want of candor, for alledging that it takes away 

the trial by jury[;] appeals from an inferior to a superior court, as 

practised in the civil law courts, are well understood. In these courts, the 

judges determine both on the law and the fact; and appeals are allowed from 

the inferior to the superior courts, on the whole merits: the superior 

tribunal will re-examine all the facts as well as the law, and frequently 

new facts will be introduced, so as many times to render the cause in the 

court of appeals very different from what it was in the court below.



If the appellate jurisdiction of the supreme court, be understood in the 

above sense, the term is perfectly intelligible. The meaning then is, that 

in all the civil causes enumerated, the supreme court shall have authority 

to re-examine the whole merits of the case, both with respect to the facts 

and the law which may arise under it, without the intervention of a jury; 

that this is the sense of this part of the system appears to me clear, from 

the express words of it, "in all the other cases before mentioned, the 

supreme court shall have appellate jurisdiction, both as to law and fact, 

&c." Who are the supreme court? Does it not consist of the judges? and they 

are to have the same jurisdiction of the fact as they are to have of the 

law. They will therefore have the same authority to determine the fact as 

they will have to determine the law, and no room is left for a jury on 

appeals to the supreme court.



If we understand the appellate jurisdiction in any other way, we shall be 

left utterly at a loss to give it a meaning; the common law is a stranger to 

any such jurisdiction: no appeals can lie from any of our common law courts, 

upon the merits of the case; the only way in which they can go up from an 

inferior to a superior tribunal is by habeas corpus before a hearing, or by 

certiorari, or writ of error, after they are determined in the subordinate 

courts; but in no case, when they are carried up, are the facts re-examined, 

but they are always taken as established in the inferior courts.



                    (To be continued.)



                        XIV



                     6 March 1788



                      (Continued.)



It may still be insisted that this clause does not take away the trial by 

jury on appeals, but that this may be provided for by the legislature, under 

that paragraph which authorises them to form regulations and restrictions 

for the court in the exercise of this power.



The natural meaning of this paragraph seems to be no more than this, that 

Congress may declare, that certain cases shall not be subject to the 

appellate jurisdiction, and they may point out the mode in which the court 

shall proceed in bringing up the causes before them, the manner of their 

taking evidence to establish the facts, and the method of the courts 

proceeding. But I presume they cannot take from the court the right of 

deciding on the fact, any more than they can deprive them of the right of 

determining on the law, when a cause is once before them; for they have the 

same jurisdiction as to fact, as they have as to the law. But supposing the 

Congress may under this clause establish the trial by jury on appeals, it 

does not seem to me that it will render this article much less 

exceptionable. An appeal from one court and jury, to another court and jury, 

is a thing altogether unknown in the laws of our state, and in most of the 

states in the union. A practice of this kind prevails in the eastern states; 

actions are there commenced in the inferior courts, and an appeal lies from 

them on the whole merits to the superior courts: the consequence is well 

known, very few actions are determined in the lower courts; it is rare that 

a case of any importance is not carried by appeal to the supreme court, and 

the jurisdiction of the inferior courts is merely nominal; this has proved 

so burthensome to the people in Massachusetts, that it was one of the 

principal causes which excited the insurrection in that state, in the year 

past; very few sensible and moderate men in that state but what will admit, 

that the inferior courts are almost entirely useless, and answer very little 

purpose, save only to accumulate costs against the poor debtors who are 

already unable to pay their just debts.



But the operation of the appellate power in the supreme judicial of the 

United States, would work infinitely more mischief than any such power can 

do in a single state.



The trouble and expence to the parties would be endless and intolerable. No 

man can say where the supreme court are to hold their sessions, the 

presumption is, however, that it must be at the seat of the general 

government: in this case parties must travel many hundred miles, with their 

witnesses and lawyers, to prosecute or defend a suit; no man of midling 

fortune, can sustain the expence of such a law suit, and therefore the 

poorer and midling class of citizens will be under the necessity of 

submitting to the demands of the rich and the lordly, in cases that will 

come under the cognizance of this court. If it be said, that to prevent this 

oppression, the supreme court will set in different parts of the union, it 

may be replied, that this would only make the oppression somewhat more 

tolerable, but by no means so much as to give a chance of justice to the 

poor and midling class. It is utterly impossible that the supreme court can 

move into so many different parts of the Union, as to make it convenient or 

even tolerable to attend before them with witnesses to try causes from every 

part of the United states; if to avoid the expence and inconvenience of 

calling witnesses from a great distance, to give evidence before the supreme 

court, the expedient of taking the deposition of witnesses in writing should 

be adopted, it would not help the matter. It is of great importance in the 

distribution of justice that witnesses should be examined face to face, that 

the parties should have the fairest opportunity of cross examining them in 

order to bring out the whole truth; there is something in the manner in 

which a witness delivers his testimony which cannot be committed to paper, 

and which yet very frequently gives a complexion to his evidence, very 

different from what it would bear if committed to writing, besides the 

expence of taking written testimony would be enormous; those who are 

acquainted with the costs that arise in the courts, where all the evidence 

is taken in writing, well know that they exceed beyond all comparison those 

of the common law courts, where witnesses are examined viva voce.



The costs accruing in courts generally advance with the grade of the court; 

thus the charges attending a suit in our common pleas, is much less than 

those in the supreme court, and these are much lower than those in the court 

of chancery; indeed the costs in the last mentioned court, are in many cases 

so exorbitant and the proceedings so dilatory that the suitor had almost as 

well give up his demand as to prosecute his suit. We have just reason to 

suppose, that the costs in the supreme general court will exceed either of 

our courts; the officers of the general court will be more dignified than 

those of the states, the lawyers of the most ability will practice in them, 

and the trouble and expence of attending them will be greater. From all 

these considerations, it appears, that the expence attending suits in the 

supreme court will be so great, as to put it out of the power of the poor 

and midling class of citizens to contest a suit in it.



From these remarks it appears, that the administration of justice under the 

powers of the judicial will be dilatory; that it will be attended with such 

an heavy expence as to amount to little short of a denial of justice to the 

poor and middling class of people who in every government stand most in need 

of the protection of the law; and that the trial by jury, which has so 

justly been the boast of our fore fathers as well as ourselves is taken away 

under them.



These extraordinary powers in this court are the more objectionable, because 

there does not appear the least necessity for them, in order to secure a due 

and impartial distribution of justice.



The want of ability or integrity, or a disposition to render justice to 

every suitor, has not been objected against the courts of the respective 

states: so far as I have been informed, the courts of justice in all the 

states, have ever been found ready, to administer justice with promptitude 

and impartiality according to the laws of the land; It is true in some of 

the states, paper money has been made, and the debtor authorised to 

discharge his debts with



it, at a depreciated value, in orders, tender laws have been passed, 

obliging the creditor to receive on execution other property than money in 

discharge of his demand, and in several of the states laws have been made 

unfavorable to the creditor and tending to render property insecure.



But these evils have not happened from any defect in the judicial 

departments of the states; the courts indeed are bound to take notice of 

these laws, and so will the courts of the general government be under 

obligation to observe the laws made by the general legislature not repugnant 

to the constitution; but so far have the judicial been from giving undue 

latitude of construction to laws of this kind, that they have invariably 

strongly inclined to the other side. All the acts of our legislature, which 

have been charged with being of this complexion, have uniformly received the 

strictest construction by the judges, and have been extended to no cases but 

to such as came within the strict letter of the law. In this way, have our 

courts, I will not say evaded the law, but so limited it in its operation as 

to work the least possible injustice: the same thing has taken place in 

Rhode-Island, which has justly rendered herself infamous, by her tenaciously 

adhering to her paper money system. The judges there gave a decision, in 

opposition to the words of the Statute, on this principle, that a 

construction according to the words of it, would contradict the fundamental 

maxims of their laws and constitution.



No pretext therefore, can be formed, from the conduct of the judicial courts 

which will justify giving such powers to the supreme general court, for 

their decisions have been such as to give just ground of confidence in them, 

that they will firmly adhere to the principles of rectitude, and there is no 

necessity of lodging these powers in the courts, in order to guard against 

the evils justly complained of, on the subject of security of property under 

this constitution. For it has provided, "that no state shall emit bills of 

credit, or make any thing but gold and silver coin a tender in payment of 

debts." It has also declared, that "no state shall pass any law impairing 

the obligation of contracts." -- These prohibitions give the most perfect 

security against those attacks upon property which I am sorry to say some of 

the states have but too wantonly made, by passing laws sanctioning fraud in 

the debtor against his creditor. For "this constitution will be the supreme 

law of the land, and the judges in every state will be bound thereby; any 

thing in the constitution and laws of any state to the contrary 

notwithstanding."



The courts of the respective states might therefore have been securely 

trusted, with deciding all cases between man and man, whether citizens of 

the same state or of different states, or between foreigners and citizens, 

and indeed for ought I see every case that can arise under the constitution 

or laws of the United States, ought in the first instance to be tried in the 

court of the state, except those which might arise between states, such as 

respect ambassadors, or other public ministers, and perhaps such as call in 

question the claim of lands under grants from different states. The state 

courts would be under sufficient controul, if writs of error were allowed 

from the state courts to the supreme court of the union, according to the 

practice of the courts in England and of this state, on all cases in which 

the laws of the union are concerned, and perhaps to all cases in which a 

foreigner is a party. 



This method would preserve the good old way of administering justice, would 

bring justice to every man's door, and preserve the inestimable right of 

trial by jury. It would be following, as near as our circumstances will 

admit, the practice of the courts in England, which is almost the only thing 

I would wish to copy in their government.



But as this system now stands, there is to be as many inferior courts as 

Congress may see fit to appoint, who are to be authorised to originate and 

in the first instance to try all the cases falling under the description of 

this article; there is no security that a trial by jury shall be had in 

these courts, but the trial here will soon become, as it is in 

Massachusetts' inferior courts, mere matter of form; for an appeal may be 

had to the supreme court on the whole merits. This court is to have power to 

determine in law and in equity, on the law and the fact, and this court is 

exalted above all other power in the government, subject to no controul, and 

so fixed as not to be removeable, but upon impeachment, which I shall 

hereafter shew, is much the same thing as not to be removeable at all.



To obviate the objections made to the judicial power it has been said, that 

the Congress, in forming the regulations and exceptions which they are 

authorised to make respecting the appellate jurisdiction, will make 

provision against all the evils which are apprehended from this article. On 

this I would remark, that this way of answering the objection made to the 

power, implies an admission that the power is in itself improper without 

restraint, and if so, why not restrict it in the first instance.



The just way of investigating any power given to a government, is to examine 

its operation supposing it to be put in exercise. If upon enquiry, it 

appears that the power, if exercised, would be prejudicial, it ought not to 

be given. For to answer objections made to a power given to a government, by 

saying it will never be exercised, is really admitting that the power ought 

not to be exercised, and therefore ought not to be granted.



                                                Brutus.



                         XV



                     20 March 1788



                      (Continued.)



I said in my last number, that the supreme court under this constitution 

would be exalted above all other power in the government, and subject to no 

controul. The business of this paper will be to illustrate this, and to shew 

the danger that will result from it. I question whether the world ever saw, 

in any period of it, a court of justice invested with such immense powers, 

and yet placed in a situation so little responsible. Certain it is, that in 

England, and in the several states, where we have been taught to believe, 

the courts of law are put upon the most prudent establishment, they are on a 

very different footing.



The judges in England, it is true, hold their offices during their good 

behaviour, but then their determinations are subject to correction by the 

house of lords; and their power is by no means so extensive as that of the 

proposed supreme court of the union. -- I believe they in no instance assume 

the authority to set aside an act of parliament under the idea that it is 

inconsistent with their constitution. They consider themselves bound to 

decide according to the existing laws of the land, and never undertake to 

controul them by adjudging that they are inconsistent with the constitution 

-- much less are they vested with the power of giving an equitable 

construction to the constitution.



The judges in England are under the controul of the legislature, for they 

are bound to determine according to the laws passed by them. But the judges 

under this constitution will controul the legislature, for the supreme court 

are authorised in the last resort, to determine what is the extent of the 

powers of the Congress; they are to give the constitution an explanation, 

and there is no power above them to set aside their judgment. The framers of 

this constitution appear to have followed that of the British, in rendering 

the judges independent, by granting them their offices during good 

behaviour, without following the constitution of England, in instituting a 

tribunal in which their errors may be corrected; and without adverting to 

this, that the judicial under this system have a power which is above the 

legislative, and which indeed transcends any power before given to a 

judicial by any free government under heaven.



I do not object to the judges holding their commissions during good 

behaviour. I suppose it a proper provision provided they were made properly 

responsible. But I say, this system has followed the English government in 

this, while it has departed from almost every other principle of their 

jurisprudence, under the idea, of rendering the judges independent; which, 

in the British constitution, means no more than that they hold their places 

during good behaviour, and have fixed salaries, they have made the judges 

independent, in the fullest sense of the word. There is no power above them, 

to controul any of their decisions. There is no authority that can remove 

them, and they cannot be controuled by the laws of the legislature. In 

short, they are independent of the people, of the legislature, and of every 

power under heaven. Men placed in this situation will generally soon feel 

themselves independent of heaven itself. Before I proceed to illustrate the 

truth of these assertions, I beg liberty to make one remark -- Though in my 

opinion the judges ought to hold their offices during good behaviour, yet I 

think it is clear, that the reasons in favour of this establishment of the 

judges in England, do by no means apply to this country.



The great reason assigned, why the judges in Britain ought to be 

commissioned during good behaviour, is this, that they may be placed in a 

situation, not to be influenced by the crown, to give such decisions, as 

would tend to increase its powers and prerogatives. While the judges held 

their places at the will and pleasure of the king, on whom they depended not 

only for their offices, but also for their salaries, they were subject to 

every undue influence. If the crown wished to carry a favorite point, to 

accomplish which the aid of the courts of law was necessary, the pleasure of 

the king would be signified to the judges. And it required the spirit of a 

martyr, for the judges to determine contrary to the king's will. -- They 

were absolutely dependent upon him both for their offices and livings. The 

king, holding his office during life, and transmitting it to his posterity 

as an inheritance, has much stronger inducements to increase the 

prerogatives of his office than those who hold their offices for stated 

periods, or even for life. Hence the English nation gained a great point, in 

favour of liberty. When they obtained the appointment of the judges, during 

good behaviour, they got from the crown a concession, which deprived it of 

one of the most powerful engines with which it might enlarge the boundaries 

of the royal prerogative and encroach on the liberties of the people. But 

these reasons do not apply to this country, we have no hereditary monarch; 

those who appoint the judges do not hold their offices for life, nor do they 

descend to their children. The same arguments, therefore, which will 

conclude in favor of the tenor of the judge's offices for good behaviour, 

lose a considerable part of their weight when applied to the state and 

condition of America. But much less can it be shewn, that the nature of our 

government requires that the courts should be placed beyond all account more 

independent, so much so as to be above controul.



I have said that the judges under this system will be independent in the 

strict sense of the word: To prove this I will shew -- That there is no 

power above them that can controul their decisions, or correct their errors. 

There is no authority that can remove them from office for any errors or 

want of capacity, or lower their salaries, and in many cases their power is 

superior to that of the legislature.



1st. There is no power above them that can correct their errors or controul 

their decisions -- The adjudications of this court are final and 

irreversible, for there is no court above them to which appeals can lie, 

either in error or on the merits. -- In this respect it differs from the 

courts in England, for there the house of lords is the highest court, to 

whom appeals, in error, are carried from the highest of the courts of law.



2d. They cannot be removed from office or suffer a dimunition of their 

salaries, for any error in judgement or want of capacity.



It is expressly declared by the constitution, -- "That they shall at stated 

times receive a compensation for their services which shall not be 

diminished during their continuance in office."



The only clause in the constitution which provides for the removal of the 

judges from office, is that which declares, that "the president, 

vice-president, and all civil officers of the United States, shall be 

removed from office, on impeachment for, and conviction of treason, bribery, 

or other high crimes and misdemeanors." By this paragraph, civil officers, 

in which the judges are included, are removable only for crimes. Treason and 

bribery are named, and the rest are included under the general terms of high 

crimes and misdemeanors. -- Errors in judgement, or want of capacity to 

discharge the duties of the office, can never be supposed to be included in 

these words, high crimes and misdemeanors. A man may mistake a case in 

giving judgment, or manifest that he is incompetent to the discharge of the 

duties of a judge, and yet give no evidence of corruption or want of 

integrity. To support the charge, it will be necessary to give in evidence 

some facts that will shew, that the judges commited the error from wicked 

and corrupt motives. 



3d. The power of this court is in many cases superior to that of the 

legislature. I have shewed, in a former paper, that this court will be 

authorised to decide upon the meaning of the constitution, and that, not 

only according to the natural and ob[vious] meaning of the words, but also 

according to the spirit and intention of it. In the exercise of this power 

they will not be subordinate to, but above the legislature. For all the 

departments of this government will receive their powers, so far as they are 

expressed in the constitution, from the people immediately, who are the 

source of power. The legislature can only exercise such powers as are given 

them by the constitution, they cannot assume any of the rights annexed to 

the judicial, for this plain reason, that the same authority which vested 

the legislature with their powers, vested the judicial with theirs -- both 

are derived from the same source, both therefore are equally valid, and the 

judicial hold their powers independently of the legislature, as the 

legislature do of the judicial. -- The supreme court then have a right, 

independent of the legislature, to give a construction to the constitution 

and every part of it, and there is no power provided in this system to 

correct their construction or do it away. If, therefore, the legislature 

pass any laws, inconsistent with the sense the judges put upon the 

constitution, they will declare it void; and therefore in this respect their 

power is superior to that of the legislature. In England the judges are not 

only subject to have their decisions set aside by the house of lords, for 

error, but in cases where they give an explanation to the laws or 

constitution of the country, contrary to the sense of the parliament, though 

the parliament will not set aside the judgement of the court, yet, they have 

authority, by a new law, to explain a former one, and by this means to 

prevent a reception of such decisions. But no such power is in the 

legislature. The judges are supreme -- and no law, explanatory of the 

constitution, will be binding on them.



From the preceding remarks, which have been made on the judicial powers 

proposed in this system, the policy of it may be fully developed.



I have, in the course of my observation on this constitution, affirmed and 

endeavored to shew, that it was calculated to abolish entirely the state 

governments, and to melt down the states into one entire government, for 

every purpose as well internal and local, as external and national. In this 

opinion the opposers of the system have generally agreed -- and this has 

been uniformly denied by its advocates in public. Some individuals, indeed, 

among them, will confess, that it has this tendency, and scruple not to say, 

it is what they wish; and I will venture to predict, without the spirit of 

prophecy, that if it is adopted without amendments, or some such precautions 

as will ensure amendments immediately after its adoption, that the same 

gentlemen who have employed their talents and abilities with such success to 

influence the public mind to adopt this plan, will employ the same to 

persuade the people, that it will be for their good to abolish the state 

governments as useless and burdensome.



Perhaps nothing could have been better conceived to facilitate the abolition 

of the state governments than the constitution of the judicial. They will be 

able to extend the limits of the general government gradually, and by 

insensible degrees, and to accomodate themselves to the temper of the 

people. Their decisions on the meaning of the constitution will commonly 

take place in cases which arise between individuals, with which the public 

will not be generally acquainted; one adjudication will form a precedent to 

the next, and this to a following one. These cases will immediately affect 

individuals only; so that a series of determinations will probably take 

place before even the people will be informed of them. In the mean time all 

the art and address of those who wish for the change will be employed to 

make converts to their opinion. The people will be told, that their state 

officers, and state legislatures are a burden and expence without affording 

any solid advantage, for that all the laws passed by them, might be equally 

well made by the general legislature. If to those who will be interested in 

the change, be added, those who will be under their influence, and such who 

will submit to almost any change of government, which they can be persuaded 

to believe will ease them of taxes, it is easy to see, the party who will 

favor the abolition of the state governments would be far from being 

inconsiderable. -- In this situation, the general legislature, might pass 

one law after another, extending the general and abridging the state 

jurisdictions, and to sanction their proceedings would have a course of 

decisions of the judicial to whom the constitution has committed the power 

of explaining the constitution. -- If the states remonstrated, the 

constitutional mode of deciding upon the validity of the law, is with the 

supreme court, and neither people, nor state legislatures, nor the general 

legislature can remove them or reverse their decrees.



Had the construction of the constitution been left with the legislature, 

they would have explained it at their peril; if they exceed their powers, or 

sought to find, in the spirit of the constitution, more than was expressed 

in the letter, the people from whom they derived their power could remove 

them, and do themselves right; and indeed I can see no other remedy that the 

people can have against their rulers for encroachments of this nature. A 

constitution is a compact of a people with their rulers; if the rulers break 

the compact, the people have a right and ought to remove them and do 

themselves justice; but in order to enable them to do this with the greater 

facility, those whom the people chuse at stated periods, should have the 

power in the last resort to determine the sense of the compact; if they 

determine contrary to the understanding of the people, an appeal will lie to 

the people at the period when the rulers are to be elected, and they will 

have it in their power to remedy the evil; but when this power is lodged in 

the hands of men independent of the people, and of their representatives, 

and who are not, constitutionally, accountable for their opinions, no way is 

left to controul them but with a high hand and an outstretched arm.



                                                Brutus.



                        XVI



                      10 April 1788



When great and extraordinary powers are vested in any man, or body of men, 

which in their exercise, may operate to the oppression of the people, it is 

of high importance that powerful checks should be formed to prevent the 

abuse of it.



Perhaps no restraints are more forcible, than such as arise from 

responsibility to some superior power. -- Hence it is that the true policy 

of a republican government is, to frame it in such manner, that all persons 

who are concerned in the government, are made accountable to some superior 

for their conduct in office. -- This responsibility should ultimately rest 

with the People. To have a government well administered in all its parts, it 

is requisite the different departments of it should be separated and lodged 

as much as may be in different hands. The legislative power should be in one 

body, the executive in another, and the judicial in one different from 

either -- But still each of these bodies should be accountable for their 

conduct. Hence it is impracticable, perhaps, to maintain a perfect 

distinction between these several departments -- For it is difficult, if not 

impossible, to call to account the several officers in government, without 

in some degree mixing the legislative and judicial. The legislature in a 

free republic are chosen by the people at stated periods, and their 

responsibility consists, in their being amenable to the people. When the 

term, for which they are chosen, shall expire, who will then have 

opportunity to displace them if they disapprove of their conduct -- but it 

would be improper that the judicial should be elective, because their 

business requires that they should possess a degree of law knowledge, which 

is acquired only by a regular education, and besides it is fit that they 

should be placed, in a certain degree in an independent situation, that they 

may maintain firmness and steadiness in their decisions. As the people 

therefore ought not to elect the judges, they cannot be amenable to them 

immediately, some other mode of amenability must therefore be devised for 

these, as well as for all other officers which do not spring from the 

immediate choice of the people: this is to be effected by making one court 

subordinate to another, and by giving them cognizance of the behaviour of 

all officers; but on this plan we at last arrive at some supreme, over whom 

there is no power to controul but the people themselves. This supreme 

controling power should be in the choice of the people, or else you 

establish an authority independent, and not amenable at all, which is 

repugnant to the principles of a free government. Agreeable to these 

principles I suppose the supreme judicial ought to be liable to be called to 

account, for any misconduct, by some body of men, who depend upon the people 

for their places; and so also should all other great officers in the State, 

who are not made amenable to some superior officers. This policy seems in 

some measure to have been in view of the framers of the new system, and to 

have given rise to the institution of a court of impeachments -- How far 

this Court will be properly qualified to execute the trust which will be 

reposed in them, will be the business of a future paper to investigate. To 

prepare the way to do this, it shall be the business of this, to make some 

remarks upon the constitution and powers of the Senate, with whom the power 

of trying impeachments is lodged. 



The following things may be observed with respect to the constitution of the 

Senate.



1st. They are to be elected by the legislatures of the States and not by the 

people, and each State is to be represented by an equal number.



2d. They are to serve for six years, except that one third of those first 

chosen are to go out of office at the expiration of two years, one third at 

the expiration of four years, and one third at the expiration of six years, 

after which this rotation is to be preserved, but still every member will 

serve for the term of six years.



3d. If vacancies happen by resignation or otherwise, during the recess of 

the legislature of any State, the executive is authorised to make temporary 

appointments until the next meeting of the legislature.



4. No person can be a senator who has not arrived to the age of thirty 

years, been nine years a citizen of the United States, and who is not at the 

time he is elected an inhabitant of the State for which he is elected.



The apportionment of members of Senate among the States is not according to 

numbers, or the importance of the States; but is equal. This, on the plan of 

a consolidated government, is unequal and improper; but is proper on the 

system of confederation -- on this principle I approve of it. It is indeed 

the only feature of any importance in the constitution of a confederated 

government. It was obtained after a vigorous struggle of that part of the 

Convention who were in favor of preserving the state governments. It is to 

be regretted, that they were not able to have infused other principles into 

the plan, to have secured the government of the respective states, and to 

have marked with sufficient precision the line between them and the general 

government.



The term for which the senate are to be chosen, is in my judgment too long, 

and no provision being made for a rotation will, I conceive, be of dangerous 

consequence.



It is difficult to fix the precise period for which the senate should be 

chosen. It is a matter of opinion, and our sentiments on the matter must be 

formed, by attending to certain principles. Some of the duties which are to 

be performed by the senate, seem evidently to point out the propriety of 

their term of service being extended beyond the period of that of the 

assembly. Besides as they are designed to represent the aristocracy of the 

country, it seems fit they should possess more stability, and so continue a 

longer period than that branch who represent the democracy. The business of 

making treaties and some other which it will be proper to commit to the 

senate, requires that they should have experience, and therefore that they 

should remain some time in office to acquire it. -- But still it is of equal 

importance that they should not be so long in office as to be likely to 

forget the hand that formed them, or be insensible of their interests. Men 

long in office are very apt to feel themselves independent [and] to form and 

pursue interests separate from those who appointed them. And this is more 

likely to be the case with the senate, as they will for the most part of the 

time be absent from the state they represent, and associate with such 

company as will possess very little of the feelings of the middling class of 

people. For it is to be remembered that there is to be a federal city, and 

the inhabitants of it will be the great and the mighty of the earth. For 

these reasons I would shorten the term of their service to four years. Six 

years is a long period for a man to be absent from his home, it would have a 

tendency to wean him from his constituents.



A rotation in the senate, would also in my opinion be of great use. It is 

probable that senators once chosen for a state will, as the system now 

stands, continue in office for life. The office will be honorable if not 

lucrative. The persons who occupy it will probably wish to continue in it, 

and therefore use all their influence and that of their friends to continue 

in office. -- Their friends will be numerous and powerful, for they will 

have it in their power to confer great favors; besides it will before long 

be considered as disgraceful not to be re-elected. It will therefore be 

considered as a matter of delicacy to the character of the senator not to 

return him again. -- Every body acquainted with public affairs knows how 

difficult it is to remove from office a person who is [has?] long been in 

it. It is seldom done except in cases of gross misconduct. It is rare that 

want of competent ability procures it. To prevent this inconvenience I 

conceive it would be wise to determine, that a senator should not be 

eligible after he had served for the period assigned by the constitution for 

a certain number of years; perhaps three would be sufficient. A farther 

benefit would be derived from such an arrangement; it would give opportunity 

to bring forward a greater number of men to serve their country, and would 

return those, who had served, to their state, and afford them the advantage 

of becoming better acquainted with the condition and politics of their 

constituents. It farther appears to me proper, that the legislatures should 

retain the right which they now hold under the confederation, of recalling 

their members. It seems an evident dictate of reason, that when a person 

authorises another to do a piece of business for him, he should retain the 

power to displace him, when he does not conduct according to his pleasure. 

This power in the state legislatures, under confederation, has not been 

exercised to the injury of the government, nor do I see any danger of its 

being so exercised under the new system. It may operate much to the public 

benefit.



These brief remarks are all I shall make on the organization of the senate. 

The powers with which they are invested will require a more minute 

investigation.



This body will possess a strange mixture of legislative, executive and 

judicial powers, which in my opinion will in some cases clash with each 

other. 



1. They are one branch of the legislature, and in this respect will possess 

equal powers in all cases with the house of representatives; for I consider 

the clause which gives the house of representatives the right of originating 

bills for raising a revenue as merely nominal, seeing the senate be 

authorised to propose or concur with amendments.



2. They are a branch of the executive in the appointment of ambassadors and 

public ministers, and in the appointment of all other officers, not 

otherwise provided for; whether the forming of treaties, in which they are 

joined with the president, appertains to the legislative or the executive 

part of the government, or to neither, is not material.



3. They are part of the judicial, for they form the court of impeachments. 

It has been a long established maxim, that the legislative, executive and 

judicial departments in government should be kept distinct. It is said, I 

know, that this cannot be done. And therefore that this maxim is not just, 

or at least that it should only extend to certain leading features in a 

government. I admit that this distinction cannot be perfectly preserved. In 

a due ballanced government, it is perhaps absolutely necessary to give the 

executive qualified legislative powers, and the legislative or a branch of 

them judicial powers in the last resort. It may possibly also, in some 

special cases, be adviseable to associate the legislature, or a branch of 

it, with the executive, in the exercise of acts of great national 

importance. But still the maxim is a good one, and a separation of these 

powers should be sought as far as is practicable. I can scarcely imagine 

that any of the advocates of the system will pretend, that it was necessary 

to accumulate all these powers in the senate.



There is a propriety in the senate's possessing legislative powers; this is 

the principal end which should be held in view in their appointment. I need 

not here repeat what has so often and ably been advanced on the subject of a 

division of the legislative power into two branches -- The arguments in 

favor of it I think conclusive. But I think it equally evident, that a 

branch of the legislature should not be invested with the power of 

appointing officers. This power in the senate is very improperly lodged for 

a number of reasons -- These shall be detailed in a future number.



                                                Brutus.